Case law

  • Case Details
    • National ID: MD 2015:13
    • Member State: Sweden
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 10/07/2015
    • Court: The Market Court
    • Subject:
    • Plaintiff: Swedish Match North Europe AB
    • Defendant: Skruf Snus AB
    • Keywords: advertisement, average consumer, comparative advertising
  • Directive Articles
    Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4, (a) Misleading and Comparative Advertising Directive, Article 4, (c)
  • Headnote
    Using a market survey more broadly than it is conducted in reality, is considered a misleading comparative advertising.
  • Facts
    The plaintiff, inter alia, produces and sells snuff. During 2013 the sale of the plaintiff's brand GENERAL represented around 25 percent of the total snuff sales in Sweden.

    The defendant also produces and sells snuff under several brands, for example KNOX.

    There are about one million people using snuff in Sweden, wherein the plaintiff's market share of the Swedish snuff market constitutes 70 percent and the defendant's market share is 14 percent.

    During the spring of 2014, the defendant marketed its products under the brand KNOX through a national campaign called "The Knox Challenge" in stores, other sales channels and on their website. The defendant has, in the campaign, compared its KNOX products with the plaintiff's GENERAL products.
  • Legal issue
    The Market Court prohibits the xefendant under the penalty of a fine, to market their products by, inter alia, the following statements, or substantially similar statements:
    (i) "More than half of Sweden's snuff users think that Knox taste as good or better than Sweden's largest snuff brand"
    (ii) "2 out of 3 think Knox is more affordable than Sweden's largest snuff brand"
    (iii) "More than half of the snuff users in Sweden think Knox is as good or better than Sweden's largest snuff brand"

    The defendant has marketed its products through a campaign and supported its claim with a marketing survey.

    The court firstly states that the average consumer in the target group must perceive the claims made by the defendant as a comparison of the defendant's and the plaintiff's products. The claims "More than half of Sweden's snuff users think that Knox taste as good or better than Sweden's largest snuff brand", "2 out of 3 think Knox is more affordable than Sweden's largest snuff brand" and "More than half of the snuff users in Sweden think Knox is as good or better than Sweden's largest snuff brand" must be considered as made without any reservations as regard the specific products of the KNOX and the GENERAL brand which are referred to in the comparison. Hence, the court finds that the claims, when looking at them briefly, must include all products of the said brands, without any limitation to a certain type of snuff used (e.g. loose or portion snuff). Furthermore, the court finds that the claims give the impression that the defendant's products have received at least as good score as the plaintiff's score in the test which the claims are based on.

    The court finds that the claims made by defendant are perceived as informing of the opinion of all snuff users in Sweden.

    When general and unreserved claims are made, such as "taste as good as or better than (another product)" and "is in total as good as or better than (another product)", particularly high requirements regarding objectivity, truthfulness and correctness are applied. After assessing the market survey which has been made by the defendant, inter alia, the questions asked, the court finds that the meaning of the claims made in the advertising, is more extensive than what has been investigated in the defendant's marketing surveys.

    The defendant has not presented any evidence to prove that the market surveys conducted by the defendant shall be considered representative for the average consumer's opinion of all the KNOX products and the GENERAL products, respectively. Hence, the court finds that the conclusions that may be made by the market survey are not sufficient for such general and unreserved claims made in the defendant's marketing. As the defendant has not been able to prove the truthfulness in its claims, the marketing is contrary to the requirements in Section 18 of the Marketing Act.
  • Decision

    Is using a market survey more broadly than it is conducted in reality, considered a misleading comparative advertising?

    URL: http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2015-13.pdf

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result
    The Market Court ruled in favour of the plaintiff concerning the claims in question in this summary.