"We are in the cigarette business. We are not in the sports business. We use sports as an avenue for advertising our products." Tobacco Industry Executive (at RJR)

Using tennis to sell death

Davideath beats Davidoff in Basel 6-0 6-0

Geneva, 14 November 2009 - The Swiss tobacco consortium, which calls itself the Oettinger Davidoff Group and is an extension of multinational Imperial Tobacco Group PLC, has initiated legal action against OxyRomandie. In a super-provisional request addressed to the civil court in Basel, they have accused OxyRomandie and Pascal Diethelm, its president, of violating their property rights over the Davidoff brand by mutilating it with the word "death" and the image of a skull. They requested that the www.davideathswissindoors.ch website be shut down and that reference to the website and its logo be removed from the www.oxyromandie.ch website.  They have finally indicated their intent to file a complaint for libel.

The legal action by Davidoff, filed on Friday 6 November, resulted in the shuting down of website www.davideathswissindoors.ch on Monday 9 November by Switzerland’s domain name registrar (NIC.ch) following a provisional decision by Dr. A. Heierli, judge at the civil court in Basel. Our main site, www.oxyromandie.ch, was also blocked on 9 and 10 November, but became again available later without any explanation.
 
Pascal Diethelm, OxyRomandie's president, was summoned by the judge to appear in Basel on Thursday 12 November. Only 48 hours were given to OxyRomandie, its president and their lawyer to prepare for the hearing, especially that the documents were all in German and were, on top of that, incomplete, as all attachments were missing. We tried to have the hearing postponed by a couple of weeks, explaining that we needed a minimum amount of time to examine the documents and prepare our response. The lawyer from Davidoff objected, and all we could get was a postponement by 24 hours. 

We went to the Civilgericht Basel-Stadt on the 13th, with not much hope: we expected a summary hearing that would confirm the provisional measure requested by the Davidoff group, which is all powerful in Basel. We prepared our arguments during the 3-hour train ride from Geneva to Basel. The hearing started at 2h30 pm. To our surprise, the judge heard both parties attentively, giving each plenty of time to explain its position. The team of a big law firm from Zürich (Rentsch & Partner), headed by a specialist in trademark protection law, did its best, but failed to present its position in a convincing way. Rudolf Schaller, our lawyer, pleaded our case in a remarkable way, building his arguments along a logical line (which we had elaborated in the train), quoting Swiss as well as European jurisprudence, and backing clear evidence with damning exhibits.

In the end, the judge ruled completely in OxyRomandie's favor. In the oral explanation of his decision, the judge declared that associating death with the Davidoff Swiss Indoors was legitimate, and, in addition, he agreed that the Davidoff group had made false statements in their complaint (see Other Big Lies).

Two of the main reasons invoked by the judge for accepting the Davideath designation are quite interesting:

• The notion of death is already overwhelmingly present on the cigarette packs sold by Davidoff. The pack of Davidoff Gold we produced during the hearing contained on the recto side "SMOKING KILL" in big letters and on the verso side the photograph of a dead body. Given that such association is already an integral part of the communication surrounding the product, reminding it in a logo like Davideath does not in any way denigrate the brand.
• The second reason is even more compelling. The judge said, in substance, that the Davidoff group does not hesitate to use a very aggressive advertising technique by associating sport, and tennis champions, with a tobacco brand, in a situation where the audience is captivated by the action and cannot separate it from the advertising message. This advertising method is psychologically pernicious, in particularly with young audiences. A company that uses such techniques for advertising cannot prevent those who oppose it from using, on their side, daring techniques. It is therefore inappropriate for them to object to the Davideath Swiss Indoors logo, which uses parody to communicate its critique.

We are of course very pleased with this result, which gives us confidence that freedom of speech is well protected in this country (contrary to our initial worries), and that tobacco companies cannot count on using the justice system to intimidate its opponents and cannot be arrogant to the point of thinking they can lie to a judge without consequences.

Overall, this was a great day for tobacco control in Switzerland. It is the first time the tobacco industry is defeated in a court case in this country.

This may also be a (Davi)death blow to the Davidoff Swiss Indoors…