Intellectual Property, Sweden updates

Watch out! Patent and Market Court of Appeal finds watch protected by copyright
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 27 May 2019

For the first time, the Patent and Market Court of Appeal has confirmed that a watch can be protected by copyright as a work of applied art, even in a crowded design field. The decision enables rights holders to not only pursue counterfeits on the basis of trademark infringement, but also to prosecute copycat watch models on the basis of copyright protection in physical and digital environments.

Preliminary injunction denied in Swedish darunavir SPC proceedings
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 11 March 2019

The Patent and Market Court of Appeal recently handed down a preliminary injunction ruling in Sandoz v GD Searle LLC relating to the supplementary protection certificate (SPC) for darunavir. The ruling clarifies that SPCs enjoy a validity presumption for the purpose of a preliminary injunction ruling in the same way that patents do. However, in the instant proceedings, the court found that Sandoz, against which the lower court had issued a preliminary injunction, had managed to rebut the presumption.

Calculating copyright infringement damages using hypothetical licence fees
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 11 February 2019

The Supreme Court recently rejected the application of a hypothetical licence fee to calculate reasonable compensation for massive copyright infringement through the operation of an illegal streaming site. This decision raises several interesting questions, including to what extent an infringer's illegal business model should be taken into account when calculating reasonable compensation.

No infringement where software backups are passively stored
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 24 December 2018

The Supreme Court recently declared that the mere passive storage of backups of copyrighted software with expired licences does not constitute copyright infringement. The judgment is significant as it clarifies which actions constitute copyright infringement and, from a practical perspective, relieves licensees from having to mine their backup servers in pursuit of potential 'sleeper' infringements.

Patent and Market Court rules on global retransmissions of TV broadcasts
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 22 October 2018

On the ever-growing market for streaming services and online access to TV broadcasts, illegal services are common and sometimes difficult to shut down due to their technical complexity and the multi-jurisdictional scope of the infringing activities. The Patent and Market Court recently held three persons liable for global retransmissions of TV broadcasts, sentencing them to prison and awarding rights holders significant compensation for damages.

New Trade Secrets Act implements EU directive
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 20 August 2018

A new Trade Secrets Act, which implements the EU Trade Secrets Directive, recently entered into force. Even if the strengthened position for trade secret owners is welcome, discrepancies remain between trade secrets and other IP rights. Further, any dispute on trade secrets will not be subject to the jurisdiction of Sweden's specialised IP courts – jurisdiction will remain vested in the courts of general jurisdiction and often subject to labour dispute rules.

Private copying levies on technically independent devices
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 23 April 2018

The Supreme Court has rendered its judgment in a long-running dispute concerning private copying levies on mobile phones with an external memory device. The court found that the right to collect private copying levies extends to devices which consist of two technically independent devices, even if the independent devices are not "especially suited for the production of copies of works for private use" and would thus not be subject to private copying levies if sold individually.

Forfeiture of Pirate Bay domain names
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 05 March 2018

The Supreme Court has confirmed that domain names are property which can be forfeited to the state, providing rights holders with another measure in their fight against online infringement. The court noted that the concept of 'property' is central for the rules on forfeiture. It concluded that a person who registers a domain name is granted an exclusive right to that domain name and the right to a domain name may be subject to dispute resolution and entitlement claims.

No presumption of imprisonment for copyright infringement
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 09 October 2017

The Supreme Court recently clarified that copyright infringement is not a crime where the presumed penalty is imprisonment. This decision marks a change in relation to previous case law regarding the penalty for copyright infringement through illegal file sharing. The Supreme Court has now aligned the view on the severity of IP infringements. This is a welcome development, although rights holders may have benefited from a stricter view and a development in the opposite direction.

Rights holders should be careful when requesting preliminary injunction
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 15 May 2017

The holder of an IP right which considers that right to be infringed will often seek a preliminary injunction. If the injunction is wrongfully granted and then overturned, the plaintiff is liable to pay damages to the defendant. A recent Supreme Court case discussed several issues relevant to proceedings concerning such damages and damages in general and is likely to be a leading case for years to come.

Guidance on preparatory patent infringement
Westerberg & Partners Advokatbyrå Ab
  • Sweden
  • 06 March 2017

In a recent case, the claimants brought forward other circumstances to demonstrate that a preparatory patent infringement had occurred. The Stockholm District Court was clear that it must be demonstrated that preparatory acts are undertaken with the intent to commit or promote patent infringement. The decision appears to indicate that stating in general terms that valid patent rights will be respected is sufficient to oppose claims of preparatory infringement.

Contract interpretation in digital music industry
Westerberg & Partners Advokatbyrå Ab
  • 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
  • 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
  • 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.

Car rims not under spare parts exemption may enjoy Community designs protection
Westerberg & Partners Advokatbyrå Ab
  • 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.

Swedish jurisdiction in national trademark cases
Westerberg & Partners Advokatbyrå Ab
  • 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
  • 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.

Supreme Court confirms broad scope of information orders
Westerberg & Partners Advokatbyrå Ab
  • 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.

Cancellation of trademarks and importance of market surveys
Westerberg & Partners Advokatbyrå Ab
  • 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.

Court provides clarification on use of logotypes
Westerberg & Partners Advokatbyrå Ab
  • 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.

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