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.
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.
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.
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.
Both the Medical Products Agency and the Dental and Benefits Agency (the authority which decides on reimbursement) have long held the position that biosimilars are not interchangeable or substitutable with their reference products, which has been reiterated in different policy papers since 2007. This position has now been supported by an administrative court of appeal in a case relating to glatiramer acetate products used for the treatment of multiple sclerosis.
The Swedish system for medicinal products is generally product based. Prescriptions as such are product based (ie, by brand name or generic product name) and the indication for which the product is intended cannot be filled in anywhere by the prescriber. Off-label prescriptions are therefore not generally possible in the 'official' prescription system. However, when it comes to accessing unlicensed medicinal products, the system for licences on a named-patient basis works differently.
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.
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.
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.
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.
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.