Partial Dismissal of the Appeal against the Determination of Unfairness of a Press Article

Facts

The company KI Konsumenteninfo AG published in its magazine "K-Tip" an article criticizing the practices of two consumer credit banks, Prokredit and Finalba. Prokredit AG then filed a complaint for unfair competition against KI Konsumenteninfo AG. The Commercial Court of the Canton of Zurich found the article to be unfair and ordered the defendant to stamp the remaining copies and publish the operative part of the judgment in the magazine. KI Konsumenteninfo AG appealed against this judgment.

Considerations

The FC partially admits the appeal, annuls the first instance judgment, and remands the case for a new decision in accordance with its considerations.

According to the FC, the requirement of a persistent infringement for the action for a declaration of unlawfulness under Art. 9 para. 1 let. c UCA must be interpreted broadly. An unlawful state of affairs created by a past infringement, but capable of still producing adverse effects, fulfills this condition. It…