Case law

  • Case Details
    • National ID: MD 2014:5
    • Member State: Sweden
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 25/04/2014
    • Court: The Market Court
    • Subject:
    • Plaintiff: Bauhaus & Co Kommanditbolag
    • Defendant: Hornbach Byggmarknad AB
    • Keywords: advertisement, comparative advertising, misleading advertising
  • Directive Articles
    Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3, (b) Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4, (a) Misleading and Comparative Advertising Directive, Article 4, (c)
  • Headnote
    (i) Falsely stating that “we beat every price” constitutes misleading marketing; and
    (ii) an incorrect price comparison with a named competitor constitutes misleading and unfair marketing.
  • Facts
    Both the defendant and the plaintiff are department stores within building supplies.

    The defendant has, during one month's time, at the entrance of one of its stores, displayed a price comparison between its own products and those of the plaintiff's. In connection hereto, the defendant has used the statement "we beat every price".
  • Legal issue
    The court prohibits the defendant, under the penalty of a fine, to use the following statement, or statements of substantially similar kind:
    (i) "we beat every price"; and
    (ii) to compare prices as made in this case or similarly give the false impression that its products are cheaper than the competitors.

    The court identifies the average consumer to be an amateur carpenter, who does not have any deeper knowledge of the offering of products or their pricing, and which is quickly passing by the entrance when entering or leaving the store.

    The court finds that the statement “We beat every price” linguistically means that the trader always has a lower price on its products. Upon a first reading by the average consumer, the statement can be understood as meaning that all of the defendant's products always are cheaper than the competitors.

    Since the defendant has not claimed nor proved the statement to be true, the court finds that the statement constitutes misleading marketing under Section 10 of the Marketing Act. The statement is likely to cause the average consumer to take a transactional decision he/she would not have taken otherwise.

    Firstly, the court states that comparisons in advertising can be very valuable to the consumer and constitute a part of a desirable market competition, provided however that the comparison meets all the requirements of truthfulness, i.e. that the information is correct and also that the comparison gives a truthful picture. The court states that particularly high requirements shall be upheld when the comparison is made in advertising with a named competitor and named services.

    The court finds that the comparison in question between the prices of the defendant's products respectively the plaintiff's products constitutes a misleading comparison as the total amounts are not correct. Hence, it is obvious that the consumer may get the false impression that the plaintiff's products are more expensive than the defendant's products.
  • Decision

    The legal issue the court had to rule on is whether:
    (i) falsely stating that “we beat every price” constitutes misleading marketing; and
    (ii) an incorrect price comparison with a named competitor constitutes misleading and unfair marketing?

    URL: http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2014-5.pdf

    Full text: Full text

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  • Result
    The court approved the plaintiff's claims.