Before the Regional Court, two of them were left standing.
Whether it can be defended does not depend on the number of allegations but on whether each one is properly substantiated.
That was the situation in a recent case handled by our firm:
- Not one statement was challenged but a whole bundle, from savings claims and star symbols to the guarantee.
- The cease-and-desist demands were drafted broadly and targeted entire forms of advertising instead of the specific wording.
- The deadline was one week, the value in dispute EUR 120,000, and the application for a preliminary injunction followed less than two weeks after the warning letter (Abmahnung).
The pressure to sign everything in such a situation is considerable. The case shows why it pays to examine each point individually.
The case: defending a warning letter with seven claims at once
A competitor sent our client, an online retailer with its own shop and an Amazon presence, a warning letter alleging seven infringements of unfair competition law and then applied for a preliminary injunction. In a judgment following the oral hearing of 12 October 2026 (case no. 10 O 1426/26), the Regional Court of Kassel (Landgericht Kassel) dismissed the application on five points. The applicant bears 71 per cent of the costs.
The key facts:
- Warning letter of 4 September 2026 with a one-week deadline, value in dispute EUR 120,000, plus claims for information, damages and legal fees.
- We rejected the warning letter and filed a protective letter (Schutzschrift) with the Regional Court of Kassel on the same day.
- The application was received on 17 September 2026; the court did not decide without a hearing but after oral proceedings.
- The claims concerned savings statements, star symbols, two top-group claims, the term “manufacturer’s guarantee”, a 30-year guarantee, embedded customer reviews and the mandatory information under the EU General Product Safety Regulation (GPSR).
The applicant’s argument: every advertising statement was misleading
The applicant considered almost every advertising statement to be misleading or an unlawful omission of material information under Sections 5, 5a and 5b of the German Act against Unfair Competition (UWG). For the top-group claims, our client was supposed to prove that they were true. The applicant read the stars in front of product features as a five-star rating and the customer reviews as unverified.
The handling of the top-group claims was particularly striking. The application consistently referred to a “leading position”, while the briefs spoke alternately of superlative, top-group or sole-position claims. Which statement the advertising was actually meant to make, and by what standard its accuracy should be measured, remained unclear.
Legal framework and decision: which claims held up in court?
Two out of seven. The Regional Court of Kassel prohibited the specific savings statement and the description of the guarantee as a “manufacturer’s guarantee”, because guarantor and manufacturer are different companies. It dismissed all other claims, partly for lack of an infringement, partly because the applicant had not substantiated its allegation, and in one case for lack of urgency.
1. Top-group advertising: whoever attacks it must first present facts
Anyone who considers top-group or sole-position advertising to be false must in principle show and prove that it is incorrect. A shift of the burden to the advertiser only comes into consideration once the attacker presents concrete facts and shows that it faces difficulties of proof. In the court’s view this failed at the first step: the applicant had neither clarified which claim it was attacking nor submitted anything about why it was incorrect. As we had put it in the protective letter, the submission did not allow a meaningful response, and the court agreed.
2. Star symbols are not automatically a rating
Consumers understand stars placed in front of individual product features as a design element, not as a five-star rating. The court relied on the Higher Regional Court of Karlsruhe (Oberlandesgericht Karlsruhe, judgment of 30 September 2016, 4 U 102/16), which considered stars misleading only where they look like an official classification, for instance in a hotel’s coat of arms. Bullet points in running text do not.
3. The 30-year guarantee was not a central selling point
According to the Court of Justice of the European Union (judgment of 5 May 2022, C-179/21, Victorinox) and the German Federal Court of Justice (Bundesgerichtshof, judgment of 10 November 2022, I ZR 241/19, Herstellergarantie IV), a trader only has to provide further information about a guarantee if it makes the guarantee a central or decisive feature of its offer. In our client’s case the guarantee was one of several highlighted features, and the full terms were available with one click. The court found no infringement of Section 5a UWG.
4. Amazon and Google reviews: no separate verification notice required
Section 5b(3) UWG requires information on whether and how the authenticity of published consumer reviews is ensured. According to the legislative materials, this does not apply where the trader merely refers to reviews published by a third party. That was the case here: the reviews clearly bore the Amazon or Google symbol and linked to the respective platform.
5. GPSR information: urgency lost
The applicant only drafted its claim concerning the mandatory information under Art. 19 GPSR precisely enough in the oral hearing, although we had already raised the defect in the protective letter. That was too late. According to the Higher Regional Court of Frankfurt am Main (Oberlandesgericht Frankfurt, judgment of 8 November 2018, 6 U 77/18), specifying the infringing conduct only during interim proceedings rebuts the presumption of urgency.
6. Granted: the savings statement and the “manufacturer’s guarantee”
The court prohibited a quantified annual saving that was framed both as an average and as a maximum (“on average up to”). It was unclear which figure was meant, and the amount did not match the calculation basis given in the same text. There is little to say against that on the merits.
The guarantee is a different matter. The applicant had asked for a ban on advertising a manufacturer’s guarantee without making clear who the guarantor is and how the guarantee relates to the statutory warranty rights. The court prohibited something else: the term “manufacturer’s guarantee” wherever guarantor and manufacturer are different legal entities, regardless of how transparently consumers are informed. The following excursus explains why this does not work procedurally.
Excursus: may a court rewrite an application for an injunction?
No. In interim proceedings, Section 938 of the German Code of Civil Procedure (ZPO) gives the court discretion to determine which orders are needed to achieve the purpose. That discretion concerns the form of relief, not its subject matter: under Section 308 ZPO the court may award neither more nor something other than what was applied for, and it may not base a prohibition of misleading advertising on a misconception the applicant has not properly pleaded.
The problem starts, admittedly, with a mistake we see surprisingly often in cases about misleading advertising. Anyone seeking a prohibition under Section 5 UWG has to establish three things: what the challenged statement says, how the target audience understands it and why that understanding departs from reality. The Regional Court of Kassel set out this standard itself: a conclusive submission requires an explanation of which statement addresses which specific group of consumers, what impression it creates, and why that impression is untrue; a court may base a prohibition only on misconceptions that have been specifically asserted (citing the Federal Court of Justice, GRUR 2018, 431 – Tiegelgröße).
On the top-group claims, the applicant failed at the first of those three steps. On the guarantee, things were hardly better. Its application expressly stated that it was “not objectionable in itself” for manufacturer, importer, seller and guarantor to be different entities, and itself referred to the guarantee throughout as a manufacturer’s guarantee; the only complaint was a lack of transparency about who owes what and how the guarantee relates to statutory warranty rights. Only in a later brief did the idea appear that consumers expect the manufacturer to be the guarantor of a “manufacturer’s guarantee”. Who counts as the “manufacturer” of a branded product that, according to its labelling, is made outside Europe, and why a foreign company bearing the brand name in its company name should not be that manufacturer, was never addressed. Yet that would have been the core of any misleading-advertising claim.
The court filled the gap itself. It did not decide on the application as filed but created a prohibition of its own, and even found that, contrary to the applicant’s assertion, the term “manufacturer’s guarantee” did not appear in the actual product listing at all, only in the downloadable guarantee terms. The operative part is therefore broader than the application in one respect, because it bans the term even where full transparency is provided, and it rests on a different misconception from the one the application described. That is not a mere “lesser included” order still covered by Section 938 ZPO but something different altogether. The judgment cites the very principle it thereby infringes a few pages earlier.
For applicants, the case is a reminder not to leave the explanation of the alleged deception to the court. Respondents should place even a partially granted order side by side with the application: where the two do not match, an appeal is rarely far away.
Strategy: how can a warning letter with many claims be defended?
Neither sign everything nor reject everything, but examine each claim individually, remedy the justified points and file a protective letter against the rest. If the matter goes to court, the costs are split according to the share in which the applicant loses.
1. Assess each claim separately
A bundle of seven claims is not a single attack but seven subject matters, each with its own litigation risk. The Regional Court of Kassel valued each claim at EUR 10,000; the cost ratio follows directly from the number of points won and lost.
2. Take the protective letter seriously
A protective letter usually ensures at least that the court does not decide without hearing the other side. It is also the basis for everything that follows: raising defects in precision and substantiation early forces the applicant to make corrections that, as here, can cost it the urgency.
3. Remedy justified points immediately
An injunction must be complied with from service, even if an appeal is lodged. Affected statements must therefore disappear everywhere: in the shop, on marketplaces and in downloadable documents such as guarantee terms and user manuals. Where a guarantee comes from a company other than the manufacturer, a neutral description such as “product guarantee” naming the guarantor is the safe choice.
4. Final declaration or appeal
For each point granted, the question is whether it justifies the cost of an appeal. Where the court is convincing on the merits, a final declaration (Abschlusserklärung) ends the proceedings most cheaply. Where it has gone beyond the application, there is much to be said for an appeal to the Higher Regional Court of Frankfurt am Main.
Outcome: five out of seven points defended
The Regional Court of Kassel followed our arguments on five of seven points; the applicant bears 71 per cent of the costs. The decision is not yet final. An appeal to the Higher Regional Court of Frankfurt am Main against the prohibition concerning the manufacturer’s guarantee is possible; if successful, the cost ratio would shift further against the applicant. The proceedings are handled by our colleague Alisa Burnett, specialist lawyer for intellectual property law (LHR Rechtsanwälte, Cologne).
How differently courts assess individual advertising claims is also shown by our article on the Regional Court of Heilbronn on a manufacturer’s RRP advertising (in German). Further cases can be found on our page Our successes.
Frequently asked questions about defending warning letters in Germany
Do I have to sign a warning letter with several claims in full?+
Who has to prove that a claim to be “one of the largest providers” is false?+
May I call a guarantee a “manufacturer’s guarantee” if another company provides it?+
May a German court rephrase an application for an injunction in interim proceedings?+
What is the point of a protective letter after receiving a warning letter?+
Received a warning letter from a competitor in Germany?
We examine each allegation individually, separate the justified from the untenable ones and, where necessary, file a protective letter before the deadline expires. Send us the warning letter. You will usually receive an initial assessment within 24 hours.
Further information
- Protection against warning letters and preliminary injunctions (in German)
- Product safety and GPSR (in German)
- Our fields of activity
- Our successes
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