Facts
Jules Minet, the advertising manager of Merkur AG, organized an advertising contest called "Merkurkaffee-Roulette". Participants had to mark 5 numbers on a roulette card to be eligible for the monthly draw. The winner received 6,000 francs, an amount that could be doubled if they chose the correct symbol from 10 representing Merkur coffee varieties. The symbols allowing the gain to be doubled were available free of charge in Merkur stores or in advertisements. However, in some stores, the symbols were only given upon the purchase of a coffee packet. Minet was convicted of organizing an operation analogous to the prohibited lotteries.Considerations
The Federal Tribunal considers that the determining factor in qualifying an operation as analogous to lotteries is the planned nature of the prize allocation. This implies that the organizer's risk is excluded by precise calculations, which was not the case here. The probability calculations used are not sufficient to fulfill this condition.
However, Article 43 paragraph 2 of the Implementing Ordinance does not expressly mention the requirement of…