Competition law cease-and-desist letter issued by a micro-enterprise

In the event of doubts regarding the operation of a business by the party sending the cease-and-desist letter, supplementary information regarding business activities, customers, number of business transactions and turnover figures is required in order to establish the status of being a competitor as a prerequisite for competition law claims (right to send cease-and-desist letters).

This was doubtful in the present proceedings. In principle, there is a presumption in favour of the operation of a business if business premises have been established. However, according to the view of the OLG Jena (order of 18.08.2004 – 2 W 355/04), this does not apply if, as here, it concerns the operation of an online shop, which can be easily set up by private individuals with the appropriate internet service providers in exchange for payment of only a low monthly fee. This could equally well be intended for the disposal of private items.

It is the responsibility of the applicant in this case to set out or credibly substantiate the details of his business activities such as customer base, number of business transactions and turnover figures. Otherwise, the circle of persons entitled to bring legal proceedings would be extended in a manner that conflicts with the statutory objective of making abuse in the cease-and-desist letter system more difficult (see also BGH WRP 2001, 148 (150) – Vielfachabmahner).