Rättspraxis

  • Uppgifter om ärendet
    • Nationellt id-nummer: MD 2009:25
    • Medlemsstat: Sverige
    • Vedertaget namn:N/A
    • Beslutstyp: Domstolsbeslut överklagat
    • Beslutsdatum: 17/09/2009
    • Domstol: Marknadsdomstolen
    • Ämne:
    • Kärande: AB Svenska Spel
    • Svarande: Ladbrokes Betting & Gaming Limited
    • Nyckelord: advertising, comparative advertising, confusion
  • Direktivartiklar
    Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4, (a) Misleading and Comparative Advertising Directive, Article 4, (c) Misleading and Comparative Advertising Directive, Article 4, (f) Misleading and Comparative Advertising Directive, Article 4, (h)
  • Huvudanmärkning
    The use of
    (i) certain unsupported statements; and
    (ii) visual media pertaining to another company's brand
    when marketing one's own product constitutes misleading advertising.
  • Omständigheter
    The defendant has advertised its gambling website by advertisements in newspapers, online and on TV.

    The defendant has, through the advertising, made certain claims and used graphics that may be connected to the plaintiff, all of which the plaintiff opposed against.

    The defendant also made certain claim against the defendant's advertising, this summary, however, only summarizes the claims made by the plaintiff.
  • Juridisk fråga
    Does the use of
    (iii) certain unsupported statements; and
    (iv) visual media pertaining to another company's brand
    when marketing one's own product, constitute misleading advertising?
  • Beslut

    The court prohibits the defendant, under the penalty of a fine, to use any of the following statements in its marketing:
    (i) "we give more to the players";
    (ii) "the unbeatable leader when it comes to security";
    (iii) "same games with greater wins";
    (iv) "same rules and better terms";
    (v) and other statements with substantially the same meaning, if it is not the case; and:
    (i) to use the film sequence containing a so-called clip figure.

    Firstly, the court rules on the question of whether the defendant's use of "Swedish games" (Sw. svenska spel) alone or in combination with claims of English odds, greater wins and better terms, constitutes misleading advertising as regards the commercial origin.

    The court finds that in consideration of the advertisement in question, there can be no doubt with the relevant average consumer in question that the marketing does not origin from the plaintiff. Furthermore, based on the context of the words "Swedish games", the court finds that the mere use of "Swedish games" alone or in combination with other expressions, cannot constitute any misleading advertising as regard its origin or any other connection between the defendant and the plaintiff.

    The defendant claims that the statements "greater wins", "better terms" and "we give more back to the players" are intended to demonstrate that the defendant, inter alia, gives a higher return to its players than Swedish gambling companies with a gambling license.

    The court however finds that the statements in question lack a further explanation or reference which makes it possible to check them. Moreover, the statements are of categorical nature. The defendant cannot show the truthfulness of the statements and hence, the advertisement is contrary to Section 18, item 1 and 3 of the Marketing Act.

    As regard the defendant's use of the so-called clip figure in a film sequence, the court initially states that both companies have good reputation on the market, although the defendant may not have as good reputation as the plaintiff.

    The clip figure, the happy winner man, is known in the market as the plaintiff has used the clip figure in marketing and the court states that it can be said to be the plaintiff's figure mark.

    The court finds that the use of the film sequence with the clip figure cannot be considered necessary to make a comparison and carry out the advertisement in question. By using and associating to the defendant's clip figure, the court finds that the defendant has gotten an unfair advantage of the plaintiff's good reputation. Hence, the advertisement is contrary to Section 18 under the Swedish Marketing Act.

    URL: http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2009-25.pdf

    Hela texten: Hela texten

  • Ärendesamband

    Inga träffar

  • Doktrin

    Inga träffar

  • Resultat
    The court partly ruled in favour of the plaintiff and partly in favour of the defendant.