Facts
The investment advisor A. was reported by X. GmbH for unfair competition under Art. 3 lit. a in conjunction with Art. 23 of the Unfair Competition Act (UWG). A. had made some critical statements about the X. funds in a letter to M. AG, which were perceived as defamatory by X. GmbH.
The High Court of the Canton of Lucerne had acquitted A. of two statements, but found him guilty of a third statement and fined him 2,000 Swiss francs.
A. then filed a nullity appeal with the Federal Supreme Court, requesting that the judgment be set aside and the case be remanded to the lower court for a new assessment.
Considerations
The Federal Supreme Court upheld the appeal. It concluded that the disputed statement by investment advisor A., that "hardly any paid prices can be found for the X. funds", should not be considered defamatory within the meaning of Art. 3 lit. a UWG in the overall context of the letter.
The court explained that while the statement was incorrect, it was…