Extract of Act No 2 of 9 January 2009 relating to the Control of Marketing
and Contract Terms and Conditions, etc. (the Marketing Control Act)
Chapter 6 Protection of the interests of traders
Section 25 Good business practice
No act shall be performed in the course of trade which conflicts with good business
practice among traders.
Section 26 Misleading business methods
It shall be prohibited in the course of trade to use an incorrect or otherwise misleading
representation which is likely to influence the demand for or supply of goods, services or
other products. In this chapter, “representation" shall mean any form of announcement or
statement made orally, in writing or otherwise, thus including descriptions, pictures,
demonstrations, the form, size or type of packaging, etc.
The Ministry may by regulation issue more detailed provisions relating to comparative
advertising.
Section 27 Insufficient guidance, etc.
It shall be prohibited in the course of trade to use any representation which is likely to
influence the demand for or supply of goods, services or other products when the
representation must be considered unfair because it does not provide reasonable or sufficient
guidance or introduces irrelevant matters.
Section 28 Trade secrets
A person who has obtained knowledge or possession of a trade secret in connection
with an employment or business relationship or a position of trust shall not exploit the secret
unlawfully in the course of trade.
The same shall apply to any person who has obtained knowledge or possession of a
trade secret through another person’s breach of a confidentiality obligation or otherwise
through the unlawful act of another person.
Section 29 Technical aids
A person who has been entrusted with technical drawings, descriptions, formulas,
models or similar technical aids in connection with an employment or business relationship or
a position of trust shall not use these unlawfully in the course of trade.
The same shall apply to any person who has obtained possession of technical
drawings, descriptions, formulas, models or similar technical aids through the unlawful act of
another person.
Section 30 Copying the products of another person
It shall be prohibited in the course of trade to use copies of distinguishing marks,
products, catalogues, advertising materials or other produced items in such a manner and
under such circumstances that the use must be considered an unfair exploitation of the efforts
or results of another person, and to present a risk of confusion.
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Section 31 Application of incorrect geographical descriptions to wines and spirits
It shall be prohibited in the course of trade to apply a geographical description to a
wine or spirit which does not originate from the geographical location designated by the
description. This shall apply even if the actual place of origin is also stated, or if the
geographical description has been translated or is followed by an expression like “kind",
“type", “imitation", or something similar.
Chapter 9 Penalties and civil law sanctions
Section 48 Penalties
Any person who with intent materially violates Section 6 fourth paragraph, cf. first
paragraph, regulations issued in pursuance of Section 6 fifth paragraph, Section 11, Section
13, Section 15, Section 20 second paragraph, Sections 26, 27, 28, 29 or 30 is liable to fines,
imprisonment for a term of up to six months, or both, unless a stricter penal provision applies.
Accessories shall be liable to the same penalties.
Negligent material infringement of section 7 or section 8, see also section 6, fourth
paragraph, see also first paragraph, section 11, first paragraph, section 26 or section 27 shall
be subject to fines, imprisonment of up to six months, or both, unless a stricter penal
provision applies. Accessories shall be liable to the same penalties.
In the assessment of whether an infringement is material, particular emphasis shall be
given to the scope and effects of the infringement and the degree of guilt. If the person or
business has previously been ordered to pay a fine or infringement penalty for infringement of
this Act or regulations issued pursuant to this Act, penalties pursuant to the first and second
paragraphs may be applied even if the infringement is not material.
A person who intentionally or negligently breaches a decision made pursuant to this
Act shall be subject to fines, imprisonment of up to six months, or both, unless a stricter penal
provision applies. Accessories shall be liable to the same penalties.
No penalty shall be imposed in relation to an infringement committed by a sales
assistant, office assistant or similar subordinate employee if the infringement has essentially
resulted from that person’s dependent relationship with the trader.
No penalty shall be imposed in the event of an infringement of section 28 if
knowledge or possession of the trade secret was acquired in a position of employment or trust,
or through a breach of duty in such position, and more than two years have elapsed since the
position ceased to exist.
Section 48 a Penalties and civil law sanctions for the unlawful use of geographical
descriptions
Any person who uses a geographical indication in breach of Sections 25, 26 or 31 or
aids and abets thereto is liable to fines or imprisonment for a term of up to one year.
If especially aggravating circumstances exist, the penalty shall be fines or
imprisonment for a term of up to three years. When assessing whether especially aggravating
circumstances exist, particular importance shall be attached to the loss inflicted on the
aggrieved person, including any damage to this person's commercial reputation, the gain
procured by the offender, and the extent of the offence in other respects.
A public prosecution will only be instituted if the aggrieved person so requests unless
this is required by the public interest.
The provisions concerning sanctions against infringements of trademarks in the
Trademarks Act Chapter 8, except for Sections 60, 61 and 61 a, apply correspondingly to the
use of geographical descriptions in breach of Sections 25, 26 or 31.
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Section 48 b Compensation and damages for violation of certain provisions in Chapter 6
For intentional or negligent violation of Sections 28, 29 and 30, the offender shall pay
the aggrieved party:
a) compensation corresponding to a reasonable licence fee for the exploitation, as well as
damages for any loss resulting from the violation that would not have arisen in
connection with licensing,
b) damages for any loss resulting from the violation, or
c) compensation corresponding to the gain obtained as a result of the violation.
The compensation and damages are determined on the basis of the provision in letters a to c
that is most favourable for the aggrieved party.
The first paragraph applies correspondingly to aiding and abetting.
The first and second paragraphs apply correspondingly to violations of Sections
25 and 26 that consist of copying another person's product, distinguishing mark, advertising
materials or other produced items.
Section 49 Rules relating to criminal procedure
The prosecuting authority shall not prosecute infringement of section 28, section 29 or
section 30 unless the aggrieved party so requests. The same shall apply to infringement of
section 26 or section 27 when the act consists of injurious statements about another trader or
about matters which concern that trader specifically.
The prosecuting authority may in connection with criminal proceedings apply for a
court order to secure the cessation of the unlawful act and to prevent its repetition.
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