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Supreme Court of Denmark

Marketing campaigns were in contravention of the Marketing Practices Act 

Case no. 288/2009 and case no. 289/2009
Judgment 6 January 2012
 

Ladbrokes Betting & Gaming Ltd.
vs.
Danske Spil A/S

and

Danske Spil A/S
vs.
Ladbrokes Betting & Gaming Ltd.

With their marketing campaigns, both parties had acted in contravention of the Danish Marketing Practices Act – however, neither party was held to pay compensation or remuneration to the other party.

This case concerned firstly whether the Danish gambling provider Danske Spil had acted in contravention of the Marketing Practices Act and/or the EU Treaty provisions on the free movement of services in relation to Ladbrokes by having discredited foreign gambling providers in connection with an advertising campaign launched following Danske Spil's name change from Dansk Tipstjeneste, and secondly whether Ladbrokes had acted in contravention of the Marketing Practices Act and/or the Danish Trademarks Act in relation to Danske Spil in connection with a subsequent marketing campaign with the general slogan "Danish games with English odds" or "Danish games English odds".

The Supreme Court was satisfied that "Danske Spil" in May 2008, at the time when Ladbrokes' marketing campaign was launched, had been established as the trademark for Danske Spil's products, which meant that Danske Spil had at that time acquired the trademark rights to the designation "Danske Spil". However, the Supreme Court was not satisfied that Ladbrokes' use of the above-mentioned slogan was in contravention of Danske Spil's trademark rights under s. 4 of the Trademarks Act or s. 18 of the Marketing Practices Act.

The Supreme Court found that certain parts of Ladbrokes' marketing campaign (a scaffolding campaign and a press release) were in the nature of comparative advertising and, thus, had to fulfil the conditions stipulated in s. 5(2) of the Marketing Practices Act. The Supreme Court held that these marketing practices were in contravention of s. 5(2)(1) and (3) and s. 1 and s. 3(1) of the Act.  

The Supreme Court found that parts of Danske Spil's marketing campaign (a commercial) were in contravention of ss. 1, 3 and 5 of the Marketing Practices Act, while the other advertising material was not in contravention of the Act. The Supreme Court found no reason to assume that Danske Spil's marketing campaign was in contravention of the provisions in force at the time in Article 49 of the EC Treaty.  

None of the parties to the case had proven that they had suffered a greater loss than the other party, and the Supreme Court found no basis for ordering the parties to pay compensation or remuneration to the other party.

Also, considering the nature of the statements which had been found to be in contravention of the Marketing Practices Act, the Supreme Court found no basis for ordering either party to publish a corrective statement.  

The Maritime and Commercial Court had essentially reached the same conclusion, except for the issue of Danske Spil's acquisition of the trademark rights to the designation "Danske Spil".  

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