Unfair competition. Publication of the decision. Grounds of the action.

In this case, the plaintiff and one of the co-defendants are engaged in the production, distribution and supply of medical devices intended for patients with certain pathologies, while the other co-defendant (a FOUNDATION) is an institution providing assistance to the aforementioned patients.  This free care activity depends on the financial contributions of the other co-defendant, as it is the most important source of income. The FOUNDATION would promote the market position of the products, devices and accessories manufactured by the other co-defendant by means of medical visits, advice, guidance and free assistance from nurses and collaborators of the Foundation, in which the chronic patients are guided, advised, directed and induced to use the products of this company or to abandon those of other manufacturers in favour of the latter.

The lower court ruling declared that the co-defendants had infringed articles 15.2 (violation of rules regulating competitive activity) and article 18 (unlawful advertising) of the Unfair Competition Act, and ordered the decision to be publicised, which will be specified in the execution of the decision.

The appeal focuses on the question of whether the decision should be published, and the judgement decided that the decision should not be published on the basis of the following considerations:

The publication of the decision is not a necessary and imperative measure that follows from the acceptance of the main action, but is a power that must be requested by the party to the proceedings and granted by the court on the basis of an assessment of the grounds on which it is based. Such a measure does not have a punitive character, but the need to resort to such publication of the decision must be justified.

This must be related to the scope of the full satisfaction of the interests of the injured party, which are protected by law, in such a way that it serves as a means to achieve the aims of restoration pursued in the rule. Thus, in particular, the aim must be to restore the injured competitor’s competitive position on the market, to restore the structure of consumption existing prior to the act of unfair competition, or to restore the market structure of the injured competitor, or to restore the market structure existing prior to the act of unfair competition, or to restore the market structure of the injured competitor.

of unfair competition, or compensation for damage caused which is not directly quantifiable.

It is not sufficient in order to justify the judgment’s advertising order to indicate that there are a number of bodies or groups, related to the health sector, which are, in the applicant’s view, affected. In any event, the applicant should have substantiated his claim for an order to advertise in the proceedings, it being out of time to do so at the appeal stage of the decisión.

In the present case, the declaration of unfairness of the advertising, as unlawful, is not promoted in response to an act of competition between competitors, from which an unfair competitive advantage is derived in the market in relation to others, and which generates a certain echo on the structure of consumption in the market, which must be eliminated or remedied through the dissemination of the decision handed down, for general knowledge in that market, so that the recipients of that act may know of its unfairness, and adjust their consumer behaviour to that qualification.

SAP of Madrid of 13 January 2023.