Oikeuskäytäntö

  • Tapaustiedot
    • Kansallinen tunniste: Market Court, Judgement 147/21 (not final)
    • Jäsenvaltio: Suomi
    • Lyhytnimi:N/A
    • Päätöksen tyyppi: Unionin tuomioistuimen päätös
    • Päätöksen päivämäärä: 28/05/2021
    • Tuomioistuin: Markkinaoikeus
    • Aihe:
    • Kantaja:
    • Vastaaja:
    • Avainsanat: comparative advertising, penalties, payment, unfair competition
  • Direktiivin artiklat
    Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 5
  • Ylähuomautus

    By its decision MAO 701/17 of 15 November 2017 the Market Court prohibited, with a conditional fine of EUR 250,000, the teleoperator company Elisa Oyj ("Elisa") from using several derogatory or misleading expressions concerning Elisa's competitor or its product. In the present case, the teleoperator company DNA Oyj ("DNA") brought a new action before the Market Court, in which DNA requested that the Market Court i) order the earlier conditional fine imposed against Elisa to be paid, and ii) prohibit Elisa from using other expressions in their marketing practices.

  • Taustatiedot

    In its decision MAO 701/17, the Market Court had prohibited Elisa from continuing or repeating the marketing of Elisa's subscriptions using e.g., the expressions "fixed-term subscription imprisonment" or "no onerous commitment obligation", the expressions "contractual nightmare" or "nightmare" when referring to a fixed-term subscription contract, the expressions "two-year cake" or "716 more dark and cold nights" when referring to the duration of the fixed-term contract, or the expression "for Elisa's Saunalahti customers, a fixed-term subscription is just a bad dream", a picture of a tethered balloon with the words "fixed term subscription" or any other similar expression that disparages or denigrates Elisa's competitor or its product, under the threat of a conditional fine of EUR 200,000. The present case concerned DNA's action on Elisa's new radio advertisements related to Elisa's subscription contracts containing e.g., the claim that "38,082 Finns would have wanted to switch to Elisa in 2019 but could not because they had a fixed-term subscription".

  • Oikeudellinen kysymys

    The first legal issue in the case was whether the conditional fine imposed on Elisa by the Market Court's earlier decision MAO 701/17 would be ordered to be paid. The second legal issue was whether Elisa would be prohibited from using the above-described marketing practice in its radio advertisements.

  • Ratkaisu

    The Market Court did not order Elisa to pay the conditional fine as it considered that Elisa's new radio advertisements did not use expressions expressly prohibited by the Market Court's earlier decision MAO 701/17. The Market Court assessed DNA's new claims according to which Elisa's radio advertisements were unlawful comparative marketing as i) Elisa's fixed-term contracts had been advertised in a manner that was derogatory or disparaging towards a competitor and ii) Elisa's claim used in its marketing that 38,082 Finns would have wanted to switch to Elisa in 2019 but could not because they had a fixed-term subscription was false and misleading under Section 2a(1) of the Unfair Commercial Practices Act. The Market Court found that Elisa's factual claim about the number of people who wanted to switch was against the Unfair Commercial Practices Act's prohibition to use false and misleading comparative marketing as it did not disclose any source for the claim.

    URL: https://www.markkinaoikeus.fi/fi/index/paatokset/markkinaoikeudellisetasiat/mao14721.html

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  • Hakutulos

    The Market Court prohibited Elisa from continuing or repeating i) any marketing practice according to which 38,082 Finns would have wanted to switch to Elisa subscription in 2019 but were unable to do so because they had a fixed-term subscription or ii) any another similar false practice. Further, the Market Court prohibited Elisa from using, without fully identifying the source, i) any marketing practice where it is proposed that 38,082 Finns would have wanted to switch to Elisa in 2019 but were unable to do so because they had a fixed-term subscription or ii) any other misleading practice of a similar nature. The Market Court reinforced the prohibition with a conditional fine of EUR 200,000.