Recently, the Swedish Patent and Market Court of Appeal issued a judgment in case PMT 14821-21. The case concerns a mobile operator’s marketing that included claims such as “Sweden’s best mobile network” and “Sweden’s best mobile network according to the Swedish people”. The claims communicated were based on technical quality tests and a consumer survey. Following an action brought by a competitor, both the Patent and Market Court and the Patent and Market Court of Appeal assessed whether the marketing was misleading.
On appeal, the Patent and Market Court of Appeal (PMCA) reached a different conclusion than the Patent and Market Court. The courts’ assessment has concerned claims such as “Sweden’s best mobile network” and that the mobile network has been awarded “best in test”. The court has also examined whether the claim “Sweden’s best mobile network according to the Swedish people” and similar claims with reference to consumer surveys were misleading. The PMCA stated that it is permissible to use the results of tests and surveys in marketing, as long as they meet the requirements of reliability and are not used in a misleading manner. The technical quality tests in the case met the requirements for use in marketing. However, the marketing must clearly refer to those tests. Without a sufficiently clear reference, it may be misleading. Additionally, the PMCA found that reference to the mobile operator’s consumer surveys in marketing was misleading and, therefore, not permitted.
Since the mobile operator was successful regarding the vast majority of the case after the appeal, the PMCA reallocated the costs of the proceedings so that the counterparty would have to pay the mobile operators costs. Lastly, the PMCA departed from the main rule of two-instance review and opened up for an appeal to the Swedish Supreme Court. You can read the verdict (in Swedish) here.