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Advertising Law - Germany

About this Practice Area
Related Practice Areas: Entertainment Law, Litigation, Media Law
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Advertising Law Definition

Marketing plays an important role in the success of a company and its products. Successful advertising often depends on making forceful statements in relation to a product's performance or in comparing a product with a competitor's product. Companies are also keen to challenge competitors' advertising which they believe to be inaccurate or misleading. 

Attorneys in this area anticipate potential problems before they arise, clearing potentially problematic marketing campaigns before the advertising campaign for a new product is launched. Attorneys analyse and evaluate product promotions and advertising in the light of regulatory frameworks and other restrictions. Advertising lawyers can operate as an integrated international team of professionals, in order to provide coordinated worldwide and cross-border advice. Ads are pre-screened before they are run.

Attorneys also assist their clients in vigorously defending marketing campaigns against claims of misleading advertising before the courts, the public authorities, or the self-regulatory bodies and actively pursue claims against competitors who make misleading statements. In Germany, the Act against Unfair Competition (UWG) as well as other specific legal provisions, e.g. Pharmaceutical Advertising Act (HWG), constitute the legal basis for such claims. The course of action against misleading or false advertising or advertising violating other restrictions predominately starts at a level between competitors. After detecting such inadmissible advertising material, a competitor (or a consumer protection agency) can issue a warning letter to the allegedly infringing company and demand the signing of a cease-and-desist declaration. In complying with this demand, the infringing company will be obliged to pay a penalty for each further violation of the cease-and-desist declaration as a result of repetition of the inadmissible advertisement or use of similar advertising material. 

If the infringing company is unwilling to sign a cease-and-desist-declaration, the infringed company can apply to any Regional Court in Germany for a preliminary injunction. Germany has quick and effective proceedings for injunctive relief and in many cases the initiation of main proceedings becomes unnecessary. Generally, a preliminary injunction can be obtained in an ex parte proceeding within the course of a few days. The preliminary injunction is enforceable as soon as it is served on the infringing party which is, thereafter, obliged to refrain from using the marketing materials concerned. Due to the expedited procedure, international operating companies often start attacking a competitor in Germany before launching comparable complaints in other countries.
Hogan Lovells International LLP
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