Case law

  • Case Details
    • National ID: MD 2011:25
    • Member State: Sweden
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 27/10/2011
    • Court: The Swedish Market Court
    • Subject:
    • Plaintiff: InCoax Networks Europe AB
    • Defendant: Quicom AB
    • Keywords: advertisement, email, misleading advertising, unfair commercial practices
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 1, Article 2, (d) Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 2.
  • Headnote
    (1) Statements used in emails about a competitor's alleged intellectual property infringement are considered marketing.

    (2) The statements in the marketing, which are not proven to be true, are considered misleading and constitute unfair commercial practice as they have affected the recipient's ability to take an informed transactional decision.
  • Facts
    The plaintiff and the defendant are competitors in the segment of broadband communication. Three of the plaintiff's employees previously worked at the defendant's parent company, which was liquidated in 2009.

    In the beginning of 2011 the defendant sent out e-mails to one of the plaintiff's investors and to a company with which the plaintiff had an ongoing cooperation. The emails stated that one of the plaintiff's products was a material copy of the defendant's product, that the plaintiff was committing patent infringement and that the plaintiff, when developing the product, had used confidential and proprietary information belonging to the defendant.
  • Legal issue
    The court prohibits the defendant, under the penalty of a fine, when marketing products for broadband access in coax cable networks to state:

    - that the plaintiff's product Gigabite over Coax Access is a material copy of the defendant's product,
    - that the plaintiff is committing patent infringement,
    - that the plaintiff, when developing the product, has used confidential and proprietary knowledge of the defendant,
    - or to make other statements with the essentially same meaning.

    Firstly, the court assesses whether the emails constitute marketing, i.e. if they concern commercial circumstances which have been sent for commercial purposes. The court finds that it is clear that the purpose of the emails in question was that the recipients should not invest financially in the plaintiff's business, and to cease any cooperation with the plaintiff, which can be presumed to favour the defendant. Thus, the emails shall be regarded as marketing in a legal sense.

    The statements made in the emails at hand cannot, after an assessment and investigation, be proven to be true. One of the statements is found to be a categorical accusation without any reason behind it. The court thus finds that the statements are untruthful and misleading. Furthermore, the emails led to the withdrawal of further investment and ending the cooperation between the recipients and the plaintiff. Therefore, the marketing also constitutes unfair commercial practices since they did affect the recipients' ability to take informed transactional decisions.
  • Decision

    (1) Are statements used in in emails about a competitor's alleged intellectual property infringement considered marketing?

    (2) If the answer to (1) is yes, is the marketing considered misleading and constitutes unfair commercial practice if the statements are not proven to be true?

    URL: http://www.marknadsdomstolen.se/Filer/Avgöranden/Dom2011-25.pdf

    Full text: Full text

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  • Result
    The plaintiff's requests were granted.