Latest updates

Recent wave of decisions clarifies position on concept of bad faith
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 07 June 2021

Following the European Court of Justice's (ECJ's) pioneering decision in Lindt & Sprüngli, the concept of bad faith as a ground for revocation of trademarks is nothing new from an EU perspective. However, Swedish case law dealing with bad-faith registrations has so far been limited and the Patent and Market Court of Appeal only recently addressed this issue. This article discusses a series of recent judgments concerning the concept of bad faith in light of the established ECJ case law.

Submission of evidence in court proceedings does not constitute copyright infringement
Westerberg & Partners Advokatbyrå Ab
  • Litigation
  • Sweden
  • 01 June 2021

Whether the submission of copyright-protected materials as evidence in court proceedings can constitute copyright infringement has been the subject of much discussion in Sweden. By applying the European Court of Justice's preliminary ruling on a recent case, the Patent and Market Court of Appeal has now determined affirmatively that copyright-protected materials can be freely submitted as evidence to courts in Sweden, as long as the material has some prima facie relevance as evidence in the proceedings.

Submission of evidence in court proceedings does not constitute copyright infringement
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 31 May 2021

Whether the submission of copyright-protected materials as evidence in court proceedings can constitute copyright infringement has been the subject of much discussion in Sweden. By applying the European Court of Justice's preliminary ruling on a recent case, the Patent and Market Court of Appeal has now determined affirmatively that copyright-protected materials can be freely submitted as evidence to courts in Sweden, as long as the material has some prima facie relevance as evidence in the proceedings.

Spirit drink PDO versus trademark registration
Westerberg & Partners Advokatbyrå Ab
  • Litigation
  • Sweden
  • 25 May 2021

A recent Administrative Court of Malmö judgment sheds light on the balance between national registered trademarks and protected designations of origin (PDOs) in the spirit drink sector, which has been the subject of several recent cases. The court found that the use of the trademark KULLADOS for a cider spirit infringed the PDO Calvados and that the granted national trademark for KULLADOS did not prohibit a finding of infringement.

Spirit drink PDO versus trademark registration
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 24 May 2021

A recent Administrative Court of Malmö judgment sheds light on the balance between national registered trademarks and protected designations of origin (PDOs) in the spirit drink sector, which has been the subject of several recent cases. The court found that the use of the trademark KULLADOS for a cider spirit infringed the PDO Calvados and that the granted national trademark for KULLADOS did not prohibit a finding of infringement.

Compulsory patent licence as defence against claim for preliminary injunction
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 19 May 2021

In a recent decision, the Patent and Market Court of Appeal issued a preliminary injunction to prohibit a company from selling, importing and using certain products in the life sciences field. In reaching this finding, the court provided that an argument that the requirements for a compulsory licence are fulfilled when no such action has been filed is not itself sufficient to prevent a preliminary injunction. This decision is one of few Swedish decisions to touch on compulsory licences.

Compulsory patent licence as defence against claim for preliminary injunction
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 17 May 2021

In a recent decision, the Patent and Market Court of Appeal issued a preliminary injunction to prohibit a company from selling, importing and using certain products in the life sciences field. In reaching this finding, the court provided that an argument that the requirements for a compulsory licence are fulfilled when no such action has been filed is not itself sufficient to prevent a preliminary injunction. This decision is one of few Swedish decisions to touch on compulsory licences.

Online marketing of tobacco products
Westerberg & Partners Advokatbyrå Ab
  • Tech, Data, Telecoms & Media
  • Sweden
  • 09 April 2021

Despite being heavily regulated, the marketing of tobacco products is rarely subject to judicial review. The Act on Tobacco and Similar Products prohibits the marketing of tobacco products, with three exceptions. This article discusses a Patent and Market Court judgment which clarifies the rules which apply to the online sale of tobacco products under the act.

Do parties have an absolute right to dispute in person in Sweden?
Westerberg & Partners Advokatbyrå Ab
  • Arbitration & ADR
  • Sweden
  • 08 April 2021

Due to the ongoing COVID-19 pandemic, virtual hearings have become a common alternative to in-person hearings globally. To conduct a hearing online is not a problem under Swedish arbitration law, as long as both parties consent to it. On the other hand, it has been debated whether an arbitral tribunal can mandate that a hearing should be virtual instead of in person if one of the parties objects. The matter is currently being reviewed in a case in the Svea Court of Appeal.

Court finds that GLENETT trademark does not evoke Scotch Whisky GI
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 05 April 2021

The Patent and Market Court recently decided that the trademark GLENETT could be registered, even though it included the element 'glen', which – according to the Scotch Whisky Association – was closely associated with the registered geographical indication (GI) Scotch Whisky. The Scotch Whisky Association had asserted that the trademark GLENETT would evoke an association between any products bearing the trademark and the GI in the minds of the relevant public.

Patent and Market Court of Appeal rules on distinctiveness of position trademarks
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 29 March 2021

The European Court of Justice recently rendered a preliminary ruling, in a case that originated in Sweden, on how to assess trademarks composed of colour motifs that are intended to be exclusively and systematically affixed to the goods used for the provision of the services for which protection was sought. The case is notable because it specifically concerns the assessment of position marks used for services and not the goods on which the actual position mark is to be affixed.

New legislation on tobacco-free nicotine pouches expected
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 17 March 2021

In recent years, tobacco-free nicotine pouches, which are intended to be placed under the lip, have existed in a grey area with no clear rules or regulations to govern, for example, the warning labels which they must carry or their marketing. The government has therefore assigned to the Ministry of Health and Social Affairs the task of assessing and analysing how such products should be regulated. This article discusses how the issue arose and possible resolutions.

Actual use of company names
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 15 March 2021

Trademark and company name holders must make actual use of a sign to keep exclusive rights to it. In a recent judgment, the Patent and Market Court of Appeal examined the actual use undertaken by both a parent company, which used the sign in its company name, and a subsidiary company, which used a different company name. This judgment is a welcome addition to the scarce case law relating to the actual use of company names.

Calculation of damages in cases of misappropriation of trade secrets and copyright infringement
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 08 March 2021

In its first judgment of 2021, the Labour Court used a textbook case of misappropriation of trade secrets – where a previous employee had absconded with trade secrets and copyright-protected works that were subsequently used by his new competing venture – to clarify the method to be applied when calculating total damages under both legal regimes. It will be interesting to see how the courts interpret and apply this principle in future cases.

Availability of corrective measures
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 01 February 2021

The Patent and Market Court of Appeal recently handed down a judgment on the validity of a patent claiming a pharmaceutical invention and the availability of corrective measures with respect to goods manufactured in countries where the patentee's consent is unnecessary. The court's examination of the latter issue reveals that Sweden has failed to properly implement the EU Enforcement Directive with respect to corrective measures.

Marketing of gambling bonuses
Westerberg & Partners Advokatbyrå Ab
  • Tech, Data, Telecoms & Media
  • Sweden
  • 11 December 2020

In a recent judgment, the Patent and Market Court ruled on the issue of marketing bonus offers pertaining to gambling services in light of the requirement of sufficient information and moderate marketing under Swedish market law. The judgment, which also concerns the issue of sufficient disclosure of age limits and other undue marketing measures, is important as it is the second judgment to deal with gambling marketing since the deregulation of the Swedish gambling monopoly.

Do Swedish patent licence agreements last for the life of a patent unless otherwise specified?
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 09 November 2020

The Patent and Market Court of Appeal recently provided guidance on the term of patent licences in cases where the licence agreement is silent on that point. Patent proprietors that wish to have the opportunity to terminate a licence agreement governed by Swedish law without cause, or to have a shorter term than for the life of the patent, must be careful to include language to that effect in the contract.

Is Swedish market for CBD oils closed?
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 21 October 2020

In 2019 the Administrative Court prohibited several companies from selling products containing CBD. The decisions were essentially based on the finding that the use of 'CBD' in the products' names amounted to a statement which presented them as having properties which treated medical conditions. Following these decisions, the Swedish Medical Products Agency seems to have widened the definition of 'medicinal products' when it prohibited two companies from selling oils which contain CBD.

Joint handling of patent infringement claims and contractual claims in Swedish IP courts
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 21 September 2020

In the Swedish legal system, the specialist IP courts handle patent infringement claims, while the general courts handle contractual claims. But such different claims can be combined and handled jointly by the specialist courts under certain circumstances. In a recent case, the Supreme Court clarified under which circumstances patent claims and such civil claims can be combined and handled jointly.

Objective necessity to rebox in parallel trade and implementation of EU Falsified Medicines Regulation
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 16 September 2020

In a recent case, the Patent and Market Court (PMC) elaborated on the concept of objective necessity to rebox medicinal products subject to parallel distribution in light of the implementation of the EU Falsified Medicines Regulation. The PMC's decision is a significant victory for originators, as it confirms that relabelling is still the main rule in Sweden and that reboxing remains the exception and requires evidentiary support of objective necessity by the parallel trader.