Performance protection under competition law

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The performance protection under competition law gives a company the right to defend itself against another company "unfairly" exploiting the services or reputation of the former company. The performance protection under competition law is regulated for Germany in § 4 UWG ( law against unfair competition ). The performance protection under competition law complements the industrial property protection . The UWG describes legal violations against which action cannot be taken on the basis of special laws such as patent law , trademark law or copyright law . As part of competition law , this protection is also called supplementary performance protection under competition law .

Basically, the respective special laws such as the PatentG or the MarkenG finally regulate the legal protection that arises from exclusive rights . In contrast to intellectual property law, competition law, more specifically the law against unfair competition, does not grant any exclusive rights, but regulates market behavior between competitors and the relationship with the opposite side of the market. Nevertheless, the UWG regulates similar cases that were codified after the UWG reform. Thus, § 4 No. 3 a) - c) UWG and § 14 II No. 1 - 3 MarkenG describe similar cases.

However, the principle of freedom from imitation must be observed, which states that imitations are fundamentally free and that the barriers are only drawn by copyright, trademark law, etc. A performance can be imitated outside of these limits. This principle is broken by exceptions, provided that the service has a competitive character and special circumstances arise that make the imitation appear unfair.

Such a competitive peculiarity exists if its design or special characteristics are suitable to draw the interested public's attention to the operational origin or the particularity of the product of origin. In this respect, everyday objects cannot have any individual character, as they usually do not have any special features that draw attention to their operational origin.

literature

  • Erdmann, Willi: "The time limitation of the supplementary performance protection under competition law", Festschrift für Vieregge, 1995, p. 197 ff.
  • Heinrich Nemeczek: Competitive character and the dichotomy of indirect performance protection , WRP 2010, 1315-1321