Latest updates

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.

Objective necessity to rebox in parallel trade and implementation of EU Falsified Medicines Regulation
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 14 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.

Dynamic blocking injunction against ISPs
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 27 July 2020

In a groundbreaking case for copyright holders and internet service providers in Sweden, the Patent and Market Court of Appeal recently declared, for the first time, that dynamic blocking injunctions are in line with Swedish legislation. Unlike regular static blocking injunctions that cover only a specific infringement by a specific infringer, dynamic blocking injunctions also cover other infringements and possibly those by other infringers.

Biosimilars still not subject to mandatory substitution
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 08 April 2020

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.

Supreme Court rules on balancing of copyright and fundamental rights
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 06 April 2020

A landmark Supreme Court judgment has closed the book on the widely known 'iron pipe scandal'. The court confirmed that fundamental rights such as freedom of the press, no matter how fundamental, do not justify the use of copyrighted materials outside the scope of the existing exceptions and limitations as set out in the Copyright Act and the EU InfoSoc Directive.

Marketing authorisation holder lacks standing to challenge off-label prescription for unlicensed products
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 11 December 2019

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.

Blocking injunctions – proportionality and right of access to information
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 04 November 2019

The Patent and Market Court of Appeal recently ordered several internet service providers to take blocking measures against Sci-Hub and LibGen. The case is interesting in light of the court's 2019 decision in a similar case on interim blocking measures in which it denied blocking injunctions due to a lack of proportionality and issued stern words about the evidence invoked by the claimant and the risk of overblocking legitimate content.

Heavily discounted starter pack considered unethical grant to healthcare
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 30 October 2019

The Committee for the Review of Pharmaceutical Information recently confirmed the strict approach to the marketing of medicinal products in relation to pricing. The committee's findings serve as a reminder that companies should consider not only the intended purpose of offering a discount on a product, but also its actual effects. The case under review illustrates that an intended discount on a product may be considered contrary to the Ethical Rules for the Pharmaceutical Industry.