In the summer of 2025, the Swedish Patent and Market Court issued a notable decision clarifying the boundary between warning letters as part of ordinary legal correspondence in dispute resolution and warning letters that may constitute marketing under the Swedish Marketing Act. In the case at hand, the court found that the letters in question had a commercial character and amounted to misleading and unfair marketing.
In the summer of 2025, the Swedish Patent and Market Court (Sw. patent- och marknadsdomstolen) (the “PMC”) issued a decision outlining the boundary between cease-and-desist letters as customary legal correspondence in dispute resolution, and as marketing practices, holding in this case that the letters constituted unfair and misleading marketing practices. Although not the first ruling to address this distinction (e.g., PMT 13795-22, 21 November 2023, where three cease-and-desist letters were not found to be unfair and misleading marketing practices), the decision is noteworthy both for its facts and for the clear and instructive framework it provides for assessing cease-and-desist letters under marketing law.
A Danish company, (the “Claimant”), operating in the market for lifting and moving equipment used in luggage handling within the aviation industry, sent a cease-and-desist letter to a Swedish competitor (the “Defendant”), alleging that the Defendants lifting equipment for luggage handling (“E-CUS”) was infringing the Claimant’s patent. The Claimant demanded the Defendant to cease all commercial activities, sales and marketing related to E‑CUS in Denmark, Sweden, and Germany, jurisdictions in which the Claimant asserted its patent was in force. In response, the Defendant requested a claim chart, challenging the letter as disproportionate, alleged that it contained false statements regarding the patent’s validation in Sweden, and questioned its lawfulness under the Swedish Marketing Practices Act (Sw. marknadsföringslag (2008:486)) (the “MPA”). The Defendant further required the Claimant to confirm, within a specified time, that it was withdrawing its claims, and stated that if no such confirmation was received, the Defendant would treat the claims as withdrawn. The Claimant then sent another cease-and-desist letter, reaffirming its position and maintaining that the marketing and sale of E‑CUS constituted patent infringement.
The Defendant argued that the letters should not be treated as conventional cease-and-desist correspondence or constitute legal communication without promotional purpose. Instead, the Defendant argued that the letters amounted to unfair marketing practices because they had a commercial character and were sent to pressure the Defendant to cease its marketing and sales and sought to increase the Claimant’s sales and market share for competing products. The Defendant also held that there is normally no reason to question a claim of validation, as it is an official decision by a national authority.
The Claimant disputed these assertions, maintained that the letters served the legitimate purpose of a cease-and-desist communication within the context of dispute resolution, to place the Defendant in bad faith and highlight the Claimants view that the Defendant’s conduct constituted patent infringement. Regarding the reference to patent validation in Sweden in the second letter, the Claimant asserted that it was a mere typographical mistake, which the Defendant understood.
The PMC went along with the Defendants’ position and concluded that the cease-and-desist letters constituted marketing practices. Given the far-reaching- and false assertions contained in the letters, the PMC found that they amounted to unfair- and misleading marketing practices. The Claimant was prohibited, subject to liquidated damages, from stating, in connection with the marketing of lifting and moving equipment for luggage handling that the patent is valid in Sweden and/or that the Defendant’s sales or marketing of the E‑CUS in Sweden infringes the patent as asserted in the cease-and-desist letters, or in any materially similar manner, unless such statements are true.
The PMC reached this conclusion after assessing the central issues in two stages: first, whether the cease‑and‑desist letters qualify as marketing practices and second, if so, whether they are misleading or contrary to generally accepted marketing practices and thereby constitute unfair marketing practices under the MPA.
The PMC at first noted that the MPA applies to marketing practices directed at, or having an impact on, the Swedish market. As the Claimant sent the letters to the Defendant, a Swedish company, Swedish law was applicable. The MPA protects consumers but also traders against unfair competition. “Marketing practices” is defined broadly to cover, including but not limited to, advertising and other commercial measures intended to promote the turnover of sale or availability of products. The decisive factor is the commercial character of the conduct, there is no requirement that the sender acts with wilful intent or negligence.
By reference to case law, the PMC held that cease-and-desist letters do not constitute marketing practices when they amount to legal communication as part of customary dispute resolution, unless they aim to block a competitor’s sales or otherwise confer a competitive advantage. The PMC noted that one factor weighing against a marketing classification was that the letters were sent only to the Defendant, and not to customers or resellers, which supports treating them as legal correspondence. Nevertheless, the PMC found that at least the first letter contained forceful and overreaching statements, including assertions that the patent had been validated in Sweden, categorical claims of infringement without further analysis, and demands that the defendant cease sales and marketing of the E-CUS in Sweden. The letter presented the Claimant’s position as an objective conclusion leaving no room for negotiation. No countervailing circumstances were shown in a nuanced matter that would neutralise this impression or reinforce the characterisation as legal correspondence. The PMC therefore concluded that the letter, if complied with, would confer a competitive benefit on the Claimant and thus had a promotional sales purpose.
The second letter was assessed as clearer and more qualified, including phrases such as “appears to be” and “we assume” and adopted a more analytical tone. However, despite the Defendant’s earlier clarification that the patent had not been validated in Sweden, the second letter repeated that incorrect assertion. It was therefore partly inaccurate and unnuanced, reflected a promotional sales intent, and accordingly the PMC found that it constituted marketing practices as well.
In the second step of its adjudication, the PMC assessed whether the cease-and-desist letters were misleading or contrary to generally accepted marketing practices and thus constituted unfair marketing practices under the MPA. The PMC noted that the MPA includes an annex, a “blacklist” of marketing practices which are prohibited under all circumstances. Relevant here was point four, which prohibits claiming that a trader or product has been approved or endorsed by a private body when that is not the case. Under established Swedish case law, the application of point four requires an incorrect but unequivocal statement implying that such approval exists. On this basis, the PMC found that the Claimant’s assertion of the patent being validated in Sweden was unlawful under the MPA. The PMC further applied the general clause in the MPA, which requires adherence to generally accepted marketing practices and deems it unfair if marketing practices noticeably affects or is likely to affect the recipient’s ability to make a well-founded commercial decision, the so-called “transaction test”. The assessment is made from the perspective of the average recipient. However, where the communication is directed to a single recipient, it is assessed individually, here from the Defendants’ perspective. Because the Claimant sells competing products in the same market and the PMC had already determined that the letters constitute marketing practices, the PMC concluded that, from the Defendant’s perspective, the letters mediated that the Claimant’s competing products were covered by the patent, thereby conferring a competitive advantage on the Claimant.
Furthermore, traders are prohibited from making false or inaccurate statements that are likely to mislead. For the purpose of the misleading infringement analysis, it is sufficient that it is likely the recipient’s ability to make an informed business decision was affected. The PMC found that, while the Defendant cannot be expected to possess specialist patent expertise, as a commercial actor it should understand that parties frequently dispute rights, and that legal advice may be required in such circumstances. Given that the Claimant is one of the Defendant’s main competitors in a concentrated market and that the E‑CUS is its only direct rival, the letters were likely to cause precautionary measures that favoured the Claimant’s market position. Although the Defendant did not cease sales, it adopted internal measures and considered modifications to the E‑CUS to mitigate patent risks. The PMC therefore concluded that the cease‑and‑desist letters likely affected the Defendant’s business decisions and probably caused a significant distortion of its economic behaviour regarding the product.
The PMC clarified the boundary between cease-and-desist letters and (unfair) marketing practices. As a starting point, cease-and-desist letters are not considered marketing practices, but customary legal correspondence used in dispute resolution. However, where such letters contain unqualified or unnuanced information combined with broad cease‑and‑desist demands that may promote the sender’s market position, they can lose their character as legal correspondence and instead amount to (unfair) marketing practices. The PMC concluded this through a two-stage analysis, first determining whether the letters constituted marketing practices at all and if so, whether they amounted to unfair marketing practices.
In its first step, the PMC noted several circumstances, including overreaching statements, conclusions presented without a comprehensive analysis, statements framed as objective facts without nuances, false statements (failing under point four of the blacklist) and far-reaching demands to cease with commercial activities without grounds, leaving no room for the counterparty’s position. Considered collectively and with a holistic approach, these factors informed the assessment of whether the letters assumed a commercial character, central to the analysis of marketing practices.
In the second step, regarding whether the marketing practices was unfair, the PMC held that where a communication is directed to a single recipient, whether an individual or a company, the assessment must be made from the recipient’s perspective, rather than by reference to the average consumer using a transactional test. As to false assertions, no intent requirement applies, even claims of mistake by the sender may underscore a lack of objectivity and strengthen the impression that letters are intended to promote sales. In a business-to-business context, point four in the blacklist is particularly relevant.
Accordingly, these circumstances, bearing on the boundary between cease-and-desist-letters and marketing practices, are central to consider when drafting a cease-and-desist letter, to ensure it remains within its proper legal function. The case has been appealed and is currently pending before the Swedish Patent and Market Court of Appeal (Swe. Patent- och marknadsöverdomstolen). It remains to be seen whether the appellate court will adopt the same approach as the lower court.
