I have received a warning letter under competition law issued by Kiel attorney Litz Schroeder on behalf of Ramona Thalkofer. Ramona Thalkofer allegedly trades cosmetic products on eBay and currently has approximately 3,000 active listings and approximately 8,000 reviews.

I'm being accused of possibly trading as a business, even though I presented myself as a private seller on eBay. This matter requires further investigation, particularly regarding the number and regularity of my sales.

Such conduct could be considered unfair under Section 3 (3) of the German Unfair Competition Act (UWG) (see Appendix 23). The warning letter demands the submission of a cease-and-desist declaration and the payment of warning costs amounting to EUR 953.40 (for a value in dispute of EUR 15,000).

If you have also received a cease-and-desist letter from Ramona Thalkofer, I am happy to assist you. You can contact me by phone, email, or leave me a message using the messaging function. I strongly recommend seeking legal advice and not hastily signing the pre-written cease-and-desist letter without fully understanding the consequences.

The distinction between private and business transactions is complex and depends on several factors, including the frequency of transactions, the quantity of items sold, and the intention to make a profit. For example, the simultaneous sale of many identical new items often indicates business transactions.

Selling goods on platforms like eBay can be legally complex. The distinction between private and business sales is often difficult, and violations of competition law can have serious consequences. We are here to help and support you in this matter. You can reach us via our contact form or by phone.

1. Thoroughly review the warning letter: Review the warning letter carefully and collect all relevant documents and information.
2. Obtain legal advice: Before you react, consult a specialized lawyer to accurately assess your situation and discuss the best courses of action.
3. Compliance with deadlines: Do not miss the deadlines specified in the warning letter to avoid legal action.
4. Cease and desist letter: A cease and desist letter is usually required. Before signing, consult with a lawyer familiar with competition law.
5. Coverage of costs: Clarify early on whether and to what extent you will have to cover the legal costs.
6. Communication: Ideally, all communication with Lutz Schroeder Law Firm should be conducted through your attorney to avoid potential errors.

Recommended course of action: Since issuing a cease and desist declaration can have legal consequences, it is advisable to examine this decision thoroughly and, if necessary, consider an amended declaration.

Recently, there has been an increasing number of contacts from real estate agents who have received warning letters from the German Environmental Aid Association (Deutsche Umwelthilfe eV) in Radolfzell. These warning letters are often issued due to violations of the Building Energy Act (GEG), particularly the lack of required information in property advertisements pursuant to Section 87 GEG. This mandatory information includes, among other things, the type of energy certificate (energy requirement or consumption certificate) and the year of construction of the property.

• Stay calm: Don't let yourself be pressured and don't act hastily.

• Pay attention to deadlines: Make careful note of all relevant dates to avoid missing any deadlines.

• Do not sign any documents hastily or make any payments without first seeking legal advice.

Recently, I received another cease and desist letter from Nobilis Group GmbH, represented by the law firm Lubberger Lehment. This cease and desist letter concerns the sale of fragrance samples and sample bottles of perfumes. In this article, I would like to provide a legal assessment of this issue.

The cease and desist letters from Nobilis Group GmbH relate to alleged violations of competition and copyright law. Specifically, the complaint alleges that the fragrance samples and sample bottles offered are sold in proprietary containers that do not comply with the Cosmetics Regulation. Furthermore, the retailers are accused of using original product images without the permission of Nobilis Group GmbH, even though the company holds exclusive rights to these images.

Nobilis Group GmbH complains that the fragrance samples and sample bottles offered are inadequately labeled, often missing important information such as the name and company address of the responsible person, batch numbers, and nominal contents. Such deficiencies constitute violations of the Cosmetics Regulation and can result in legal consequences. Furthermore, the distributor's claim to be acting with the consent of the original manufacturer is incorrect, which is also relevant under competition law.

In the area of copyright law, the recipients of the warning letters are accused of using original product images without the permission of Nobilis Group GmbH. These images are protected by exclusive usage rights, which is why their unauthorized use constitutes a copyright infringement and can result in serious legal consequences.

The sale of sample bottles and fragrance samples is legally complex. The use of product images without permission always constitutes a copyright infringement, and inadequate labeling can lead to competition law issues. Both aspects can be subject to warnings from Nobilis Group GmbH and its lawyers. The warnings are therefore likely justified.

Additionally, trademark law aspects may be relevant, especially if products are no longer offered in their original packaging. Although this is not currently part of the cease-and-desist letters, it should still be considered.

The warning letter includes a request for a cease-and-desist declaration, information about the distribution, and payment of damages. Furthermore, legal fees based on the value of the matter are demanded.

If you have received a warning from Nobilis Group GmbH, you should consider the following steps:

• Stay calm and respect the deadlines.
• Avoid direct contact with the other party and do not make any payments.
• Do not sign a pre-written cease and desist letter without having it legally reviewed.
• Consult an attorney to discuss your legal options.

It's crucial not to make hasty decisions and to seek legal advice in a timely manner. Pre-written cease-and-desist letters often contain far-reaching obligations that can be detrimental without thorough review.

Online retailers can make many mistakes, as numerous businesses have already experienced through the receipt of warning letters. These warning letters often result in significant costs.

In December 2020, the "Act to Strengthen Fair Competition," also known as the "Act Against Abuse of Cease-and-Desist Letters," came into force. It aims to minimize the misuse of cease-and-desist letters and introduced additional provisions for business associations a year later, in December 2021.

The Act against Unfair Competition (UWG) has undergone numerous changes due to the Act to Strengthen Fair Competition:

• Content of warning letters: Warning letters must now contain detailed information about the identity of the person issuing the warning, the infringement and possible costs.
• The right to issue warnings has been tightened. Occasional business activity is no more sufficient than bogus online shops to issue warnings.
• Reimbursement of warning costs: The possibility of claiming warning costs has been restricted in order to reduce the misuse of warnings, particularly in cases of violations in online trading and data protection violations.

Instructions on receiving a warning:

• Take warnings seriously
• Have the warning letter checked.
• Don't let the deadline pass

Further information on the possible costs of a warning can be found at abmahnung.org/kosten.

The easiest way to avoid warning letters is to have the online shop reviewed by a lawyer. However, if the online retailer has already received a warning letter, it's important to first determine whether the warning is justified and then agree on what steps should be taken.

• Competitors
• Legally recognized business associations, registered in the list of qualified business associations (www.bundesjustizamt.de)
• Chambers of Commerce and Industry
• Qualified institutions, registered in the list of qualified institutions under the Injunctions Act at the Federal Office of Justice
• trade unions

• The person issuing the warning has no or only insignificant business activity
• The warning letter has only recently entered the market
• The contractual penalty is very high
• The number of warnings issued is very high

• Who issues a warning?
• What is the basis for issuing a warning?
• Are warning costs claimed?
• Is a cease and desist declaration required?

Step 1

Have it checked whether the person issuing the warning is authorized to issue a warning.
Have your company investigate whether a competition violation actually exists? Are the facts presented correct?

Step 2

Meet deadlines. Seek legal advice immediately. The more time you have to review your options, the better your strategy will be.

Step 3

Discuss with legal counsel the appropriate strategy and response to the warning.

The company Herrnhuter Sterne GmbH owns, among other things, a European Union trademark and relies on the so-called uniqueness of its stars under competition law.

Of particular importance in this context is the 2015 ruling of the Federal Court of Justice (BGH, judgment of December 2, 2015 – I ZR 176/14 – Herrnhuter Stern). In this ruling, the highest German court examined precisely this question: Is the Herrnhuter Stern unique under competition law?

The court found:

Protection under competition law exists when a company copies and offers on the market the result of a competitor's efforts that is unique under competition law, provided that there are special circumstances that make the copying appear unfair. This is the case if the copying is likely to create confusion about the origin and the imitator fails to take appropriate and reasonable measures to avoid this confusion.

This gives rise to a legal claim. This means that identical or similar copies placed on the market by competitors of Herrnhuter Sterne GmbH can be subject to court injunctions, regardless of whether these Christmas decorations are labeled as Herrnhuter Sterne or not.

As with all warnings in the area of competition and trademark law, Herrnhuter Sterne GmbH is also demanding in the current letters a cease-and-desist declaration with a penalty clause, extensive information and the assumption of costs based on a value in dispute of €100,000.00, which corresponds to a claim of €2,584.09.

Especially in connection with products of this type, it's also worth considering whether the retailer might be able to assert claims against its suppliers. I'm happy to advise you in this area and can enforce such claims if necessary.

Please do not hesitate to contact me and, if possible, send me the letter you received by email.