Westerberg & Partners Advokatbyrå Ab updates

Contract interpretation in digital music industry
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 12 December 2016

The Svea Court of Appeal recently shed much-needed light on whether a right to digital use can be established through the interpretation of recording contracts from a time when such use did not even exist. The case shows how a party to a contract can be found to have consented to new terms regarding digital use through passivity and confirms that a recording artist has standing to seek an injunction on his or her own without the co-creators.

Prison for company executives for copyright infringement
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 07 November 2016

The Stockholm Patent and Market Court recently sentenced four company executives to up to 18 months in prison and ordered them to pay fines and damages amounting to several million Swedish kronor for copyright and trademark infringement through the online sale of counterfeit furniture. In light of the considerable damages, forfeiture of illegal gains and criminal liability, the story is likely to continue with an appeal.

No copyright protection for sport broadcasts
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 03 October 2016

The Supreme Court recently ruled on whether linking to live broadcasts of hockey games was communication to the public, and whether the live broadcasts met the requirements for copyright protection. The court made clear that the EU standard of copyright fully applies in Swedish law. Following this judgment, it would appear that these types of broadcast can rely only on the protection of related rights.

Off-label use: a comparator in health technology assessments
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 28 September 2016

The Dental and Pharmaceutical Benefits Agency (TLV) recently denied reimbursement for an orphan drug for the treatment of chronic thromboembolic pulmonary hypertension based on a health technology assessment which took into account off-label use of treatments for pulmonary arterial hypertension (PAH). The Stockholm Administrative Court has since upheld the TLV decision, agreeing with the TLV's reasoning that the orphan drug should be compared with available PAH treatments.

Car rims not under spare parts exemption may enjoy Community designs protection
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 25 July 2016

In the first decision of its kind from a Swedish appellate court, a Svea Court of Appeal panel recently found that car rims do not constitute spare parts and thus enjoy the protections offered by the EU Community Designs Regulation. The court's findings give the spare parts exemption a fittingly narrow and functional interpretation in line with the regulation.

E-cigarettes no longer considered medicinal products in Sweden
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 25 May 2016

The Supreme Administrative Court recently ruled that e-cigarettes not marketed for smoking cessation purposes should not be classified as medicinal products. The court stated that in order to be classified as a medicinal product, the product, if used as intended, must be capable of appreciably restoring, correcting or modifying physiological functions in human beings. It is not sufficient that the product has a pharmacological effect on the body's functions.

Pricing agreements for products in reimbursement scheme
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 10 February 2016

The Supreme Administrative Court recently handed down a long-awaited judgment in the case between the Dental and Pharmaceutical Benefits Agency and the Skane Region. The court departed from earlier judgments and stated that county councils and regions are permitted to enter into discount agreements with pharmaceutical companies for medicinal products which are included in the reimbursement scheme.

Swedish jurisdiction in national trademark cases
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 08 February 2016

The Supreme Court recently clarified the scope of jurisdiction of the Swedish courts in infringement actions involving Swedish trademarks where the infringer is domiciled outside the European Union or European Economic Area. Due to the territorial character of nationally registered trademarks, there is a legal interest for the country of registration to hear cases where a national trademark right has been invoked.

Responsibility for third-party violation of preliminary injunction
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 11 January 2016

The Supreme Court has strengthened the position of copyright holders in enforcing their rights against companies trying to circumvent court-ordered injunctions. Companies are generally not responsible for the actions of third parties. However, the company can be held responsible if it fails to prove that it has taken reasonable measures to prevent the third party from violating the injunction.

Named patient permission for unauthorised medicinal products – financial considerations
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 18 November 2015

The Stockholm Administrative Court of Appeal recently clarified the possibility to consider financial aspects when determining whether there are special requirements for granting a named patient permission. The court dismissed arguments that high prices and limited availability of an authorised medicinal product could constitute special requirements for a named patient permission for an unauthorised medicinal product.

Supreme Court confirms broad scope of information orders
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 19 October 2015

The Supreme Court recently confirmed that the Swedish implementation of the EU IP Rights Enforcement Directive goes further than the directive in relation to the information on infringing goods that a party can be ordered to provide. Under Swedish law, an information order can relate not only to goods which have been established to be infringing, but also to other specimens of the goods sold before and after the infringing goods.

Orphan drug denied reimbursement in health technology assessment
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 05 August 2015

A pharmaceutical company's recent application to the Dental and Pharmaceutical Benefits Agency (TLV) for a pricing and reimbursement decision regarding a medicinal product with orphan drug status was rejected. The decision appears to be the first in which a product under off-label use has been used as a comparator in the TLV's health technology assessment.

Medicinal products' approved indications irrelevant to substitutability
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 27 May 2015

The Uppsala Administrative Court has upheld a Medical Products Agency decision that a generic inhaler was not considered substitutable within the substitutability groups for which the generic company had applied. The court denied substitutability based on the generic inhaler's incompatibility with a spacer mentioned in the original inhaler's summary of product characteristics.

Cancellation of trademarks and importance of market surveys
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 13 April 2015

The Svea Court of Appeal recently clarified the method used by the courts to determine whether a trademark should be cancelled due to lack of distinctive character or degeneration. The court also provided guidelines on the importance of rights holders enforcing their rights and the value of well-conducted market surveys at the time of registering a trademark.

Pricing uncertainty for orphan drugs and innovative new drugs
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 11 February 2015

The Administrative Court of Appeal recently issued a judgment on the pricing of orphan drugs in the reimbursement system. The court considered whether a maximum price cap exists with regard to the cost-effectiveness calculation within the health technology assessment. The outcome is unsatisfactory for pharmaceutical companies, particularly those with orphan drugs or innovative new drugs in their product portfolio.

Court provides clarification on use of logotypes
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 02 February 2015

In certain situations the use of a third party's trademark is allowed – for example, to show that services for another business's products are offered. The Stockholm District Court recently clarified the distinction between the use of logos and word marks for such purposes, confirming that while the former create the impression of a commercial connection between two undertakings, the latter do not.

Trademark infringement – presumption of imprisonment?
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 19 January 2015

Whether a crime should be considered as punishable by imprisonment is based on the general penal value of the crime. In a recent case the Supreme Court considered whether a prison sentence is the presumed penalty in counterfeiting cases based on trademark rights. If the penal value is less than one year, it held, prison should be the last resort.

Agreement to limit distribution of private healthcare providers' profits
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 05 November 2014

The government and the Left Party recently reached agreement on initiatives aimed at restricting private companies from engaging in certain publicly funded healthcare, care and educational services and, as part of that limit, their right to distribute profits. Much of the criticisms leading up to the suggested initiatives may be addressed by stricter tender procedures.

Use of competitor's trademark in product catalogue
Westerberg & Partners Advokatbyrå Ab
  • Intellectual Property
  • Sweden
  • 22 September 2014

The Supreme Court recently considered Mon.Zon's use of Layher's trademark in its product catalogue. The court held that the product catalogues were directed only to prospective buyers and that the use of a photograph displaying Layher's trademark implied no connection between Layher and Mon.Zon. The court concluded that Mon.Zon had caused no damage to the trademark's indication of origin function.

Discount agreements for medicinal products in reimbursement system
Westerberg & Partners Advokatbyrå Ab
  • Healthcare & Life Sciences
  • Sweden
  • 10 September 2014

The Administrative Court of Appeal recently held that it is not possible for county councils and regions to acquire a discount on the price of medicinal products in the reimbursement system. The decision has been appealed to the Supreme Administrative Court. It remains to be seen what will happen to existing discount agreements within the reimbursement system should leave to appeal not be granted.

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