The use of metatags in marketing, i.e. invisible keywords hidden in the code on websites which influence results on internet search engines, have been discussed in Sweden for many years. The most controversial aspect regarding metatags concerns the use of a competitor's trademark. The common view has been that such marketing may breach the Swedish Market Practices Act (MPA) under certain conditions. However, until recently Swedish case law has been scarce on this practice, especially from a marketing law point of view.
In Case No. MD 2015:22 the Swedish Market Court assessed, among other things, whether usage of a competitor's trademark and certain statements by means of metatags constituted misleading marketing under the MPA.
The challenged practice related to a company's marketing of contact lenses in which the company inter alia used a competitor's trademark in metatags. The metatags also included the text "The optician is selling this lens under its own brand" and "The trademark [name of the trademark] is registered by [the name of the competitor]." In the case it was not disputed that the company did not sell the competitor's lenses.
The court initially found that a search for the competitor's lenses on the search engine www.google.se resulted in the company's website as the second highest search result. Accordingly, the use of the competitor's trademark was of great relevance for the products. The court continued by considering that the meaning of the messages "The optician is selling this lens under its own brand" and "The trademark [name of the trademark] is registered by [the name of the competitor]" were unclear. Taking into account how the marketing was presented, the court held that it must be regarded as likely that the marketing was perceived by the average consumer as a claim that the company sold the competitor's product on its website. However, since the company had confirmed that it was not selling the competitor's products, the court ruled that the marketing had not been substantiated and was consequently misleading according to the MPA.
In light of the court's findings the company was ordered to cease using the challenged claims subject to a conditional fine.
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