The Act Against Unfair Competition (UWG) also includes the possibility of an association action. In contrast to the UKlaG, which focuses on consumer protection law, the UWG deals with competition law. The UWG protects competitors, consumers and other attendees of the market. According to § 3 UWG actions which are suitable for affecting the competition to the detriment of competitors, consumers and other attendees, are forbidden. For example, it is not allowed to disparage the goods of a competitor, to disguise the advertising nature of a competitive action, to impede competitors systematically or to exploit the commercial inexperience of children and adolescents (cf. § 4 UWG). If the mentioned actions take place, associations stated in § 8 III Nr. 1-4 UWG can sue for elimination or an injunction.
Subject & Aim of the lawsuit:
An elimination or injunction of an action is generally the aim of the lawsuit. According to § 10 UWG, a claim regarding the absorption of profit can be asserted if the competitive disadvantageous actions were committed intentionally. This means that associations, as well as competitors and consumers, can demand the surrender of profits. According to § 9 UWG, competitors can demand compensation if they suffered damage.
Preconditions of the proceeding:
A warning should take place before the complaint elevation. One is trying to persuade the opposing party to submit a declaration of discontinuance with the warning. This is not a duty but usual. If a warning did not take place and the opposing party confessed his/her liability during trial, the complaining party has to bear all court costs (cf. § 93 ZPO). The trial would not have been necessary if a warning previously took place. Disputes could have been clarified without court.
Entitled associations:
The feature of the UWG is that the affected consumer cannot enforce his/her rights and thus is not authorized to take legal action. The affected consumer can only contact an authorized consumer advice centre. Competitors, associations with legal capacity which support commercial and independent interest, qualified institutions and chambers of industry and commerce as well as chambers of handicrafts can be authorized to take legal action (cf. § 8 UWG). Qualified institutions within the meaning of § 8 UWG are, according to § 4 UKlaG, institutions which are authorized to take legal action. The UWG itself does not decide preconditions regarding qualified institutions but refers to the UKlaG. Therefore, the same preconditions as in § 4 UKlaG need to be fulfilled. Anti-discrimination associations can also make use of the avenues within the UWG, although they need to include consumer protection in their statue first. Actions with regard to the UWG as well as the AGG would be conceivable in terms of discriminating advertising.