§ 35a Required particulars in business letters
(1) All business letters, regardless of their form, which are addressed to a specific recipient must indicate the company’s legal form and registered office, the court of registration at the place of the company’s registered office and the number under which the company has been entered in the Commercial Register, the directors and, if the company has established a supervisory board and the supervisory board has a chairperson, the chairperson of the supervisory board together with his family name and at least one given name written out in full. Where information is supplied regarding the company’s capital, the share capital as well as, if all the capital contributions to be made in cash have not yet been made, the overall amount of the outstanding capital contributions must in any case be stated.
(2) The particulars required in accordance with subsection (1), first sentence, shall not be necessary in notifications or reports issued in connection with an existing business relationship and for which forms are generally used in which only the required particular needs to be entered in an individual case.
(3) Order forms shall be deemed to be business letters within the meaning of subsection (1). Subsection (2) shall not apply to them.
(4) All business letters and order forms used by a branch office of a limited liability company with a registered office abroad must include the register in which the branch office is recorded and the number of the register entry; in all other respects, the provisions set out in subsections (1) to (3) shall apply to particulars regarding the main office and the branch office in so far as foreign legislation does not require any deviations therefrom. If the foreign company is in liquidation, this fact and all the liquidators shall also be indicated.
Information for non-professionals
Relevance for legal relations
1Section 35a GmbHG specifies which business information must be implemented by a German company with limited liability (GmbH) (mutatis mutandis to the UG (haftungsbeschränkt)) in its external written correspondence on its means of communication, whether in a letter, fax or e-mail,Looking at the purpopse of this provision, all declarations in text form according to section 126b BGB are comprised; that was clarified in 2007 when adding "independent in which format", see Baumbach/Hueck, GmbHG, 20. ed. (2013), section 35a Recital 17 – 22; Gaus/Gabel, Praktische Umsetzung der Anforderungen zu Pflichtangaben in E-Mails, BB, 1744; Hoeren/Pfaff, Pflichtangaben im elektronischen Geschäftsverkehr aus juristischer und technischer Sicht, MMR 2007, 207 in order to act lawfully. Depending from which point of view you look at the corresponding business correspondence, different requirements and legal consequences arise from this section.
a) Section 35a GmbHG from the shareholders' perspective
For the shareholders of a GmbH or UG (haftungsbeschränkt), this section does not have any immediate relevance, as far as the shareholders are not also managing directors ("Geschäftsführer") of the company or are entitled to act on their own externally, in the course of trade (see in this regard infra lit. b)). Due to the potential legal liability consequences for shareholders (see infra lit. g)), however, it is also in their interest that the requirements laid out in section 35a GmbHG are fully met in all business-related communication of their company. It is possible, for example, that shareholders could be held liable based on the principles of apparent authority ("Rechtsscheinshaftung"), if the legal form of the company is omitted in a business letter and if a contract is concluded on the basis of this business letter - and the other party can not know otherwise, that the company he dealt with is a GmbH.See BGH NZG 2012, 989 Recital 23ff.; cp. OLG Dresden NJW-RR 2001, 1690 = http://www.justiz.sachsen.de/esamosweb/documents/12U2267.00.PDF; LG Frankfurt a.M. NJW-RR 2001, 1423, 1425; LG Heidelberg NJW-RR 1997, 355 If a business letter contains managing directors, who are no longer entitled to represent the company, the company could be bound to transactions concluded by them on behalf of the company, also according to the principles of apparent authority.
2b) Section 35a GmbHG from the managing director's/authorized representative's perspective
It is the responsibility of the management of the company, i.e. usually the managing director(s), to ensure that the minimum legal information requirements set by this section are contained in the external business correspondence. It is recommended that these mandatory requirements are not only completely met in (analogue) business letters, but also in electronic correspondence, such as e-mails or company blogs, which are directed to external recipients.
3aa) Business letters
The requirements set out in section 35a GmbHG apply not only to business letters in paper form but also for all other (analogue) formats, such as facsimiles or postcards as well as for digital communication in business transactions, i.e. for the communication via e-mail, tetxt messageSee BT-Drucks. 942/05, S. 130, or other electronic messaging forms.Wie das technisch und praktikabel umgesetzt werden soll, ist fraglich; es ist davon auszugehen, dass aufgrund der Abrufbarkeit von E-Mails auf mobilen Endgeräten eine relevante Geschäftskorrespondenz nicht via SMS abgewickelt wird. While it is discussed in the legal literature, how Twitter messages are to be treated,see Roth/Altmeppen, supra section 35a Recital 5 the overall academic opinion says that company-owned blogs should be legally treated as business letters.see Saenger/Inhester, GmbHG 2. ed. (2013), section 35a Recital 3
A business letter is basically defined as any form of business communication which is fixed in one way or the other.see Beck'scher HGB-Kommentar, 9. ed. (2015), section 37a Recital 9; Beck'scher GmbHG-Kommentar, 23. ed. (2015), section 35a Recital 5 Another important factor is that business communication is addressed to specific recipients outside the company, for example, an offer letter to a particular customer, delivery notes or notices of termination, also in electronic form. Recipients of business letters which are affiliated with the sending company are to be regarded as external recipients.see LG Heidelberg GmbHR 1997, 446, 447; Lutter/Hommelhoff, supra, section 35a, Recital 2
Private correspondence which has no relation to the business of the company as well as, e.g. direct mail or leaflet advertising (where, however, other information requirements is not covered by this section, may apply, e.g. imprint obligation in accordance with section 5a III of the Unfair Competition Act ("UWG"), i.e. messages to an indefinite group of people or groups specified only by specific features, or internal communications.see BGH NJW-RR 1997, 669 = https://www.jurion.de/Judgemente/BGH/1997-01-27/II-ZR-213_95 According to the prevailing opinion amongst other commentators, any correspondence of the GmbH with respect to the employment of employees, e.g. with respect to the stock of the employment relationship or the content of an employment contract, would have sufficient relation to business transactions and therefore would not fall under the exemption for internal communication.see Lutter/Hommelhoff, supra, section 35a Recital 2; Scholz, GmbHG, Band 2, 11. ed. (2013), section 35a Recital 4; dissenting Baumbach/Hueck, supra, section 35a Recital 21; Michalski, GmbHG, 2. ed. (2010)., section 35a Recital 5
It is irrelevant for the qualification of a business letter, whether the recipient is a legal or natural person. Only the content specifically designed for the recipient is relevant. Electronic newsletters are likely to take a special position here, because they are, on the one hand, usually sent to a large mailing list, on the other hand, are being sent to a particular person – at least from the recipients perspective; as far as the newsletter is sent to an individualized e-mail address, and not to a general corporate address (e.g. firstname.lastname@example.org), the corresponding newsletter is addressed to a "designated recipient", which again triggers the requirements to include the minimum information in the newsletter.Cp. Hoeren/Pfaff, supra, 207 f.; dissenting: Lutter/Hommelhoff, supra, section 35a Recital 3; Michalski, supra, section 35a Recital 6; Scholz, supra, section 35a Recital 4f., where he probably did not consider "analogues" advertisement leaflets
According to section 35a II GmbHG, exceptions to the above stated requirements for mandatory minimum information apply for notices or reports made in the course of an existing business relationship and for which forms are generally used in which only further details necessary for individual cases are to be added. Those can be, for example, price lists, offers, delivery notes, invoices, orders and receipts.see Roth/Altmeppen, 7. ed. (2012), section 35 Recital 5 In such a constellation, the recipient knows already the sender of the further business correspondence, so that a repetition of mandatory minimum information is dispensable. To what extent this is practicable, and whether it is sensible to keep different business letters or letterheads, is another matter. The latter may even run the risk that a company could use the "wrong" business letter without the necessary minimum information for a first business contact. Referred to in section 35a II GmbHG "customary" is assessed according to the specific practices of each industry and is not to be understood in a rather broad sense.see Michaalski, supra section 35a, Recital 10
According to section 35a III GmbHG, order forms are explicitly excluded from the exceptions listed in paragraph 2. Those must therefore always include the required mandatory information.
4bb) Section 35a I GmbH lists the following mandatory information:
(1) Full company name, as listed in the company register
It should be noted that the company name, adopted by the shareholders and submitted to the commercial register, is used in commerce. Modifications and/or other terms may only be used in addition to the company name, as long as such addition is not used as a company name (or part thereof) as such.see OLG Stuttgart, Judgement of 29.10.1997 – Case no. 20 U 8/97, online available under: http://www.rechtsportal.de/Rechtsprechung/Rechtsprechung/1997/OLG-Stuttgart/node_382216 Other names, which are not listed in the register, or variations of the company name alone, do not meet the legal requirements. Misleading information is prohibited. The recipient of a business letter should have clarity, as to which company is the sender.
(2) Indication of the legal form (e.g. "GmbH" or "UG (haftungsbeschränkt)")
This section requires that also the registered legal form must be included in a business letter, either in full or its official abbreviation.
(3) Seat of the company
What is meant here, is the business address of the company, which is also filed with the registry court. It is not sufficient to provide a p.o. box address which could be different to the actual geographical address. The latter is important for the determination of jurisdiction in accordance with section 17 of the Code of Civil Procedure ("ZPO").see BGH WM 1977, 1427; LG Detmold GmbHR 1991, 23
(4) Registry court
The indication of the registry court is a mandatory information which must be placed on a business letter.
(5) Registration number
The business letter must contain the registration number ("HRB-Nummer") of the company.
(6) Managing director ("Geschäftsführer")
According to section 35a I sentence 1 GmbHG all managing directors of a company must be named with their last and at least with one first names on the business letter.
(7) Contingently required information
(a) Head of the board of directors ("Aufsichtsrats- bzw. Beiratsvorsitzender")
As far as a supervisory board consists of the GmbH (by law or by virtue of the by-laws), the full first and last name of the chairman of supervisory board must be included in the mandatory information. The same applies to an advisory board that meets the supervisory function under the by-laws.see Baumbach/Hueck, supra, section 35a Recital 9
(b) Information on outstanding deposits
As far as information about the capital of the company is provided, information about the share capital and, if applicable, about any outstanding deposits must be provided. If no information is made on the shareholder capital, no information about it must be stated.Cp. Hüffer, AktG, 11. ed. (2014), section 80 Recital 4
5cc) Presentation of the mandatory information
(1) For non-electronic communication
With regard to the form of the mandatory information, the GmbHG does not contain any rulings. Therefore, this information does neither be in writing within the meaning of section 126 I of the German Civil Code ("BGB"), nor is a text form mandatory within the meaning of section 126b BGB.see MüKo GmbHG, 2. Band (2008), section 35a RdNo. 8 It is only essential that the medium containing the mandatory information is durable to same extent, allowing a permanent representation of the characters of such information. In this respect, facsimiles and telexes are suitable formats in addition to the classic business letters.see Lutter/Hommelhoff, supra section 35a Recital 2a
(2) For electronic communication
All mandatory information must be contained clearly legible in either an e-mail or in another electronic message. Here it is crucial that the information can be presented with current standard software and printed upon request. As far as the mandatory information is provided as an attachment to a message, it must be ensured that this attachment can also be opened with a customary and universally available standard software.see Hoeren/Pfaff, supra, 208 This may be, for instance, an attachment containing the according mandatory information in a PDF format.PDF stands for "portable document format", which is not only set and disclosed as ISO-standard, but widely spread due the free availability of suitable reading software. Otherwise, it cannot be read easily, and thus would not fulfill its purpose to identify the company.see Heidrich, Post "modern" – Neues Gesetz verlangt Pflichtangaben in E-Mails, c't 4/2007, 50, online available under http://heise.de/-290866 (30.07.2015). However, sending company information in an attachment to someone carries also the risk that the recipient's firewall or anti-virus program will delete or remove the attachment from the e-mail. Unless general standard formats are used for the attachment, due to the omnipresent foods of SPAM e-mails there is a further risk that the e-mail plus attachment will be held back by the SPAM filters and the recipient will not learn of their content.see Wietzorek, Der Beweis des Zugangs von Anhängen in E-Mails, MMR 2007, 156
Alternatively, there are views that the mandatory information can also be received via a link to the sender's provider identification according to section 5 of the Tele-Media-Act ("TMG"). In this case, however, is a prerequisite that the information retrievable through another medium will remain accessible unchanged even during the statutory retention periods of business correspondence and its amendments are kept comprehensible.
Since the company data, however, may change over time and thus the information at the time of dispatch of an electronic business letter is not necessarily identical after a certain time, this form of information transmission (which is rather equivalent to a provision of access to information) is in result probably rather unsuitable, to meet the requirements of section 35a GmbHG.Cp. Rath/Hausen, Viel Lärm um nichts? Pflichtangaben in geschäftlichen E-Mails, K&R 2007, 113, 115; dissenting: Beck'sche Online Kommentar GmbHG, section 35a Rn. 15 m.w.N. Furthermore, this would also run against the intention and purpose of section 35a GmbHG. In addition, not necessarily all mobile devices can also connect to the Internet in addition to their e-mail function, in order to retrieve the website containing the mandatory information.see Schüler, Abmahnsichere Geschäfts-E-Mail – Gesetzeskonforme Pflichtangaben in Geschäftsbriefen (01.02.2007), online available under http://heise.de/-274204 (30.07.2015)
Thus, it is preferable to place the mandatory information either directly in the e-mail, for example as part of the e-mail signature/disclaimer. This way, all mandatory information would be linked to the business letter in a comprehensive way. It could be ensured through the according serve settings, for example, that in all e-mails that are sent by company will automatically include the mandatory information after the body of the e-mail and thus all business correspondence would meet the requirements of section 35a GmbHG; and this already in the literal sense of this section ("Mandatory information on business letters").dissending: Gaus/Gabel, Praktische Umsetzung der Anforderungen zu Pflichtangaben in E-Mails, BB 2007, 1744, 1745f.; Roth/Altmeppen, supra, section 35a Recital 5
Depending on the technology, this conclusion must not necessarily be applied to other means of communication, if there is, e.g. when using text messages, a limit of 160 characters, or in cases where technical alternatives are possible. For example, when communicating via messaging services, such as "Whatsapp" or "BlackBerry Messenger", an Internet connection with corresponding data services are required anyway to use those services; which would allow solutions which link to the mandatory information.
6c) Section 35a GmbHG form the suppliers', customers', creditors', and debtors' perspective
The purpose of the provisions of section 35a GmbHG are to primarily allow (potential) customers, business partners, or suppliers to get a better picture about the sender of the business letter, especially to enable or facilitate the collection of the sender's court register information.see Köhler/Bornkamm, UWG, 33. ed. (2015), section 4 Recital 11.164 The information should also enable consumers to easily establish contact with the offering/selling company and/or to enforce their claims.see Köhler/Bornkamm, supra, section 5a Recital 33 The obligation of the offering company towards consumers to provide its identity and address when providing an offer, is independent of its legal form in many cases already required in section 312c I BGB in conjunction with Art. 246 section 1 I No. 1 und 2, section 2 I 1 und 2 No. 2 EGBGB.
According to Article 7 I, IV of the Unfair Commercial Practices Directive (2005/29/EC), it is a misleading business practice if a company omits essential information in business letters, which the average consumer needs, according to circumstances, to make an informed transactional decision (taking into account all actual circumstances and the limitations of the communication medium). The German legislators have implemented this accordingly in section 5a II, III No. 2 of the Act against Unfair Competition ("UWG"). By affirming that this information is essential, the according requirements of section 3 UWG II are therefore also met.Cp. Köhler/Bornkamm, UWG, 33. ed. (2015), section 5a Recital 56 f.
It is also considered as a misleading omission, if a company is hiding essential information or if it provides it only in an unclear, unintelligible, ambiguous or untimely manner which in result causes the average consumer to take a transactional decision, or is likely to cause it, in cases where he would not have taken that decision otherwise. The failure to provide proper information therefore needs to lead to a relevant misconception.see BGH GRUR 2010, 852 Recital 21 – Gallardo Spyder; GRUR 2010, 1142 Recital 24 – Holzhocker; GRUR 2011, 82 Recital 33 – Preiswerbung ohne Umsatzsteuer; GRUR 2012, 842 Recital 25 – Neue Personenkraftwagen
In the case of an invitation to purchase (= means any commercial communication which indicates characteristics of a product and the price in a way that puts the consumer in a position to make a purchase) the following information is considered essential: the address and identity of the trader, such as its trading name and, where appropriate, address and the identity of the company for which he acts, and information requirements in relation to commercial communication, including advertising or marketing, as laid down in Community law.
This section therefore comprises all those business letters to a consumer, offering a product, however - unlike in section 37a of the Commercial Code ("HGB") - also advertising flyers and promotional e-mails of an entrepreneur. "Entrepreneur" means any natural or legal person who is acting in the course of business for the purposes of this Directive as part of his trade, craft or profession, and any person acting on behalf or on behalf of the company. The mandatory information is required - different from above - regardless of the legal form, for the GmbH, but also for civil law companies ("GbR") or natural persons, or even for associations that are economically active as part of its purpose of operation.
7d) Section 35a GmbHG from the competitors' perspective
Section 35a GmbHG is not the only norm, which requires certain mandatory information on business letters. Comparable regulations are found in section 37a HGB (for sole proprietors), in sections 125a, 177a HGB (for commercial partnerships, such as OHG, KG and GmbH & Co. KG), in section 80 of the Stock Corporation Act ("AktG") (for public companies), section 7 Partnership Act ("PartGG"), section 125a HGB (for partnership companies) as well as in section 25a Cooperterative Act ("GenossenschaftsG") (for cooperatives).
Not directly affected are the GbR, sole proprietors who are not merchants, and freelancers. However, similar obligations may be applicable for these groups of persons, arising from other provisions, e.g. from section 15b Factories Act ("GewO"). To the extent that freelancers organize themselves in the form of a GmbH, however, they are obliged to provide the mandatory information set out in section 35a GmbH in their business correspondence.see Maaßen/Orlikowski-Wolf, Stellt das Fehlen von Pflichtangaben in Geschäftskorrespondenz einen Wettbewerbsverstoß dar?, BB 2007, 561, 563
8e) Section 35a GmbHG from foreign companies with limited liability perspective
For foreign limited liability companies, for example, an English Private Company Limited by Shares (Ltd.), having a registered branch in Germany, section 35a GmbHG shall apply mutatis mutandis.Cp. LG Göttingen ZIP 2005, 2019 According to section 35a IV GmbHG in principle the headquarters situated abroad (seat, i.e. the full address of the foreign company, register and number of the foreign company, complete name and legal form (Limited or Ltd.)) and complete first and surnames of the/the director(s), the particulars of the branch (seat, register number, managing director) must be provided in addition to the information listed above. A branch must be marked as such.approving: Michalski, supra, section 35a Recital 14f.; dissenting: Baumbach/Hueck, GmbHG, 20. ed. (2013), section 35a Recital 13; Hachenburg, GmbHG, 8. ed. (1997), section 35a Recital 11 To what extent this obligation also applies to other domestic resident companies, and also to those branches, which are not registered in Germany, is discussed within the legal literature.
9f) Background to section 35a GmbHG
Providing mandatory information on business letters was regulated in Germany already in 1969, when section 35a GmbHG was implemented in the GmbHG.see Lutter/Hommelhoff, GmbHG, 18. ed. (2012), section 35a vor Recital 1; cp. Einmahl, Die erste gesellschaftsrechtliche Richtlinie des Rates der Europäischen Gemeinschaften und ihre Bedeutung für das deutsche Aktienrecht, AG 1969, 131, 133; Kreplin, Erweiterte Angabenpflicht auf Geschäftsbriefen für Aktiengesellschaften, Kommanditgesellschaften auf Aktien und Gesellschaften mit beschränkter Haftung, BB 1969, 1112 The starting point was the EU Publicity Directive of 1968, which had comprised, inter alia, the limited liability companies and had aimed to protect third parties who enter into business relations with companies.First Council Directive 68/151/EEC of 09.03.1968 on co-ordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, ABl. 1968, L 75/8ff, online available under http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31968L0151:DE:HTML (30.07.2015) By implementing the "Gesetz über das elektronische Handelsregister und Genossenschaftsregister sowie das Unternehmensregister" (EHUG),see BGBl. 2006 I No. 52, S. 2553, online available under http://www.bmjv.de/SharedDocs/Downloads/DE/pdfs/EHUG.pdf?__blob=publicationFile (30.07.2015); The EHUG implements Art. 4 of the Directive 2003/58/EG of 15.07.2003 (so-called Publication Directive), ABl. L 221, 13 (of 04.09.2003) dar which came into effect on 1. Januar 2007, it was among others clarified in the GmbHG that with respect to the provision of mandatory business information section 35a GmbHG also refers to business letters in electronic format, and not only to classical letters on paper. This was expressed by adding "no matter in which format" to subsection 1 of section 35a GmbHG.Cp. Gesetzesbegründung zum EHUG, BT-Drucks. 16/960 of 15.03.2006, online available under http://dip21.bundestag.de/dip21/btd/16/009/1600960.pdf (30.07.2015); The according paragraph of Art. 4 of the Publication Diretive reads: "auf Briefen und Bestellscheinen, die auf Papier oder in sonstiger Form erstellt werden" (ABl. 2003, L221/13, online available under: http://eur-lex.europa.eu/legal-content/DE/TXT/?uri=CELEX:32003L0058 (30.07.2015) Before this implementation, the prevailing legal opinions had already construed the term "business letter" in this sense, namely that this all outward correspondence in writing would be included.see Scholz, GmbHG, Band 2, 11. ed. (2013), section 35a Recital 3; Rowedder/Schmidt-Leithoff, GmbHG. 5. ed. (2013) section 35a Recital 6; Ulmer/Habersack/Winter, GmbHG, 2. ed. (2014) section 35a Recital 3; Schmittmann/Arens, Pflichtangaben in E-Mails - Ist die elektronische Post ein Geschäftsbrief?, DB 2002, 1038, 1039.
10g) Sanctions/legal consequences for violations of section 35a GmbHG
To the extent section 35a GmbHG is violated, according to section 79 I GmbHG the registry court may punish this violation with a penalty of up to EUR 5.000,00 (so-called. "Registerzwang") to enforce the compliance with this section. By fulfilling the obligation laid out in section 35a GmbHG, the obligation to pay the fine would fall away, since the fine would only assure that compliance is established.
Since section 35a GmbHG represents a regulatory and no formal rule, its breach has no impact on the validity of the legal transaction based on a statement in a business letter.Cp. Schweinoch/Böhlke/Richter, E-Mails als elektronische Geschäftsbriefe mit Nebenwirkungen, CR 2007, 167ff.
In addition, a breach of information provision obligations could trigger civil claims of third parties, for example, to challenge a contract due to an error with respect to the contracting party (section 199 II BGB)Cp. OLG Dresden, Beschluss of 21.04.2010 – Case no. 13 W 295/10; OlG Stuttgart BB 2012, 846 = http://openjur.de/u/358073.html or for damages due to fault in contract negotiations (known as culpa in contrahendo, sections 280, 311 II BGB. section 823 II BGB).approving: Hoeren/Pfaff, supra, 210 It will be decisive in this context, however, what information was missing, to what extent the sender of the business letter could be adequately identified with the remaining pieces of information provided, and, where applicable, what damage was caused by the wrong/defective information.
Since section 35a GmbHG is intended to regulate market behavior in the interests of market participants,see Köhler/Bornkamm, UWG, 33. ed. (2015), section 4 Recital 11.164; Maaßen/Orlikowski-Wolf, supra, S. 564; LG Bonn, decision of 22.06.2006 – Case no. 14 O 50/06, BeckRS 2006 10375 (zu section 35a GmbHG); dissenting (basierend auf § 1 UWG a.F.): LG Berlin, WM 1991, 1615, 1616; KG, DB 1991, 1510; Roth/Altmeppen, supra, section 35a Recital 9 competitors and qualified institutions mentioned in the section 3 of the Act to enforce an injunction ("UKlaG") (e.g. consumer associations, chambers of commerce or chambers of crafts) could in individual cases enforce unfair competition claims due to violations of section 35a GmbHG according to section 4 No. 11 UWG, section 5 No. I No. 3 UWG and section 5a UWG.see Köhler/Bornkamm, UWG, 33. ed. (2015), section 4 Recital 11.157a However, in case of claims according to section 4 No. No. 11 UWG, the materiality threshold of section 3 UWG must be exceeded, i.e. the infringement as such must be capable of affecting the interests of competitors, consumers or other market participants noticeable.so im Ergebnis auch OLG Brandenburg GRUR-RR 2008, 136; zu section 1 UWG a.F. OLG Düsseldorf NJW-RR 2004, 41, 42 If only minor details are missing, such as the name of one of the managers or the chairman of the board of directors, an unfair competition claim will regularly not be available, unless other, more substantial unfair elements exist. The latter are, for example, the intention to conceal the company's identity with incomplete or false information, to deceive on the ownership, membership or the type of business, and thus to escape civil claims against it.see OLG Düsseldorf NJW-RR 2004, 42
A company in breach of section 35a GmbHG, thereby making it difficult for consumers and/or business partners to raise civil claims against it, knowing that it must fear a related prosecution only to a small scale, is creating an undue competitive advantage according to the prevailing legal opinion.see OLG Hamburg MMR 2003, 105 with comment of Klute
For example, a business letter could be misleading and therefore punishable within the meaning of sections 5 I 2 No. 3, 5a III No. 2 UWG if a GbR pretends by adding "and partner" to be a partnership. The same applies to the company name "GbR mbH" (GbR with limited liability), which does not exist under German law and which may cause a likelihood of confusion with a GmbH.see OLG München GRUR 1999, 429; OLG Jena ZIP 1998, 1797