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Case Details

Case Details
National ID MD 2013:13
Medlemsstat Sverige
Common Name link
Decision type Court decision in appeal
Decision date 02/08/2013
Domstol Marknadsdomstolen
Kärande Bayer Aktiebolag
Svarande Bringwell Sverige AB, Bringwell AB (publ.) and D.R.
Nyckelord injunction, misleading advertising

Injunctions Directive, link

The court is bound by the plaintiff's claim for injunction when the demands include additions 'or similar', 'in substantially similar ways' or similar expressions.
The plaintiff had brought a claim against the defendant asking for an injunction to prevent the defendant from continuing its marketing of a dietary supplement product that entailed, inter alia, false statements.

The plaintiff made about 60 demands concerning marketing statements that the defendant had used, which the plaintiff claimed an injunction for. In some of these demands, the plaintiff had added 'or similar', 'in substantially similar ways' and similar expressions. The defendant opposed to these expressions.

Please note that the case handled several legal questions, which will not be presented herein.
Is the court bound by the plaintiff's claim for injunction when the demands include additions 'or similar', 'in substantially similar ways' or similar expressions?
The court initially finds that an injunction in certain cases should be designed based on the meaning of a marketing statement, and not based on its wording of each demand. Furthermore, the court finds that there are grounds to prohibit not only the marketing statements in each demand (or the meaning thereof) but also statement of substantially similar meaning.

The defendant opposed and argued that above expressions in the injunction must include the expression 'if this is not the case', otherwise the defendant should be prevented from using the marketing statements for all future, even if the statements would be correct in the future. The court states that the addition 'if this is not the case' has been used by the Market Court for a long period of time. The purpose for that has been to make it clear for the parties that the injunction shall not apply if the marketing statement at hand should be correct, due to that certain circumstances have changed. Hence, to prevent a defendant to seek a new assessment of the case upon changed circumstances.

In a subsequent judgement for imposing the fines (if the injunction is conditional upon fines), the addition 'if this is not the case' cannot be considered to limit the injunction. The court that subsequently imposes the fines shall not make an own assessment of the injunction, but should approve the assessments made by the Market Court. Furthermore, the court finds, in cases of changed circumstances, which entails that a market activity which has been prohibited becomes correct, this may be considered as a valid excuse for a defendant not to abide to the injunction. If the defendant is able to proof said changed circumstances, the fines shall not be imposed, irrespective of whether the addition 'if this is not the case' is included in the injunction. However, if the plaintiff's demands include 'if this is not the case', the court is bound by such addition.

The court finds that it is bound by the demands made by the plaintiff and that the court can neither judge over more or something else than what the plaintiff has claimed.
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Marknadsdomstolen , case no. C 3/11 and C 10/12, 2013-08-02