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Comments: The Swedes illusion of producing the world’s best Christmas ham is now
crushed. Or at least it cannot be proved to be true.
3. Case Report
Topic: Damages under the MPA
Parties: Mag Instrument, Inc. (“MAG”) / Libro Invest AB (“Libro”)
Where: Market Court, Case MD 2005:6
When: February 2005
What Happened: In a judgment of the Stockholm City Court Libro was found to have mislead
consumers by marketing a torch similar to the one sold by MAG. Libros’s
torches were considerably cheaper that MAG’s. MAG was granted damages
for goodwill loss but not for loss of sales. MAG appealed the Market Court
where it claimed damages for lost sales. Subsequently the case only
concerned the issue of damages due to loss of sales, which is recoverable
under Swedish tort law.
The grounds for the decision started by making general remarks on the
objectives of damages, i.e. to act preventive and provide an acceptable basis
for economic compensation due to violations of the MPA. The burden of
proof as regards the extent of a damage lies on the claimant. Obviously the
extent of damages relating to loss of sales can be very hard to prove. Swedish
tort law includes a rule that applies when there are difficulties to fulfill the
burden of proof meaning that courts under certain circumstances may
appreciate the amount of damages to a fair amount (35:5 of the Swedish
Code of Procedure).
The proceedings had shown that Libro had sold approximately 10,000
torches. Market Court held that Libro’s sales most certainly had affected
MAG’s sales negatively since at least some people who bought Libro’s torch
would have bought MAG’s in the absence of Libro’s torch. Given that it was
impossible to verify an exact amount of lost sales, it was for the Market Court
to appreciate the amount in light of the abovementioned rule.
Comments: Although 35:5 of the Swedish Code of Procedure does not take away the
burden of proof, it nearly does. According to this case there seems to be a
presumption that the sales of one company must affect another.
4. Case Report
Topic: E-mail and SMS advertising
Parties: The Consumer Ombudsman (“KO”) / Call AB
Where: The Market Court, Case MD 2004:25
When: October 2004
What Happened: Call had sent SMS and e-mails to consumers. The KO inter alia challenged the
practice on grounds that the messages could not be identified as advertising,
which is required under the MPA. The Market Court established that
sending e-mails and SMS is similar to direct marketing by ordinary mail. As
to ordinary direct marketing there is generally no requirement that you state
on e.g. an envelope that it contains advertisements. The Market Court
considered the heading of an e-mail or sender line of an SMS to be equal to
an envelope.
In the present case neither headings nor the sender lines indicated that the
messages were advertising. Since you had to read through the whole e-mail
respectively SMS to find out that the message was advertising it did not