The Swedish Market Court has in a recent decision (MD 2014:4) between the Consumer Ombudsman and Berntson Brands AB discussed what constitutes â€œparticular moderateâ€, a requirement which applies to marketing of alcoholic beverages to consumers under the Swedish Alcoholic Act (2010:1622).
The company Berntson Brands AB had marketed the German alcoholic brand â€œJÃ¤germeisterâ€, by performing a fire show in Gothenburg and using banners, cars and car roof boxes marked with the JÃ¤germeister brand. The Market Court held that the fire show violates the requirement of being â €œparticular moderateâ€ and the company was therefore prohibited from using such marketing methods. However, the Consumer Ombudsman was unsuccessful in showing that the banners would have constituted a dominating element or been intrusive. Therefore, the Court held that the use of the banners complied with the requirement of being â€œparticular moderateâ€. The same conclusion was drawn in relation to the use of the branded cars and car roof boxes since they were not considered to be intrusive, seeking or to encourage consumption of the alcoholic beverage.
The Consumer Ombudsman failed to provide any research showing that a ban on branded cars would discourage the misuse of the alcoholic beverage. The Court concluded that, under these circumstances, including a general ban on branded cars when marketing an alcoholic beverage is not proportional when the argument for public health is set against the requirement of free movement of goods. The Court also stated that entities marketing alcoholic beverages also have a justified interest to use associated brands as a part of their marketing communication strategy.
Conclusively, the Consumer Ombudsman was only successful in one of its several claims. Said claim had already been accepted by the company before the Consumer Ombudsman brought the action before the Court. Therefore, the Consumer Ombudsman was obliged to pay the defendantÂ´s legal costs.