brAnn On SWeden
Ip has never been in the spotlight in Sweden as
much as it is now during a tumultuous 2009. Hampus
rystedt and Astrid Johnsson review the most
important events and decisions of the year so far.
Unsurprisingly, most public debate on IP in Gucci argued that its trademarks are well- market for eight years. The proprietor argued that
Sweden during 2009 has revolved around known for fashion and apparel. It was noted it originally intended to sell the product through
copyright. Specifically, the debate has that Gucci is one of the world’s most famous
pharmacies, since the product was in the grey
been around the decision and subsequent fashion houses. Therefore, consumers will
area between cosmetics and pharmaceuticals.
consequences of Stockholm City Court’s connect GG or GG & design with Gucci. The
But since Swedish pharmacies are all state-
finding of four persons guilty of assisting word Sömnadsindustri in the trade name is
owned, there was only one market channel
copyright infringement. It sentenced each
descriptive but cannot be overseen in an overall
available. The product needed to be approved
of them to one year in prison and ruled that
comparison between the marks.
first and this took eight years. The Svea Court of
they pay damages of approximately €3.0
Appeals considered it allowable to choose only
million ($4.3 million). The decision was the
But the Patent Office disagreed. It found that
this marketing channel and considered the delay
catalyst that gave rise to the Pirate Party,
the marks are confusingly similar. The letter
reasonable under the circumstances.
which has since won one seat (or two if
combination GG is identical and the word
the Lisbon treaty enters into force) in the
Sömnadsindustri is merely descriptive. Gucci
patents
European Parliament.
appealed to the Court of Patent Appeals. The
court, however, refused the appeal without any
These events have put IP on the political
For the first time since 2002, the Supreme Court
reasoning, thereby finally refusing the Swedish
agenda as never before. But in addition to this,
has decided on a patent case. The case dealt with
designations of the subject international
the implementation of the Intellectual Property
alleged infringement by a generic pharmaceutical
registrations.
Rights Enforcement Directive (IPRED) into
company preparing to enter the Swedish market
Swedish law has stirred debate. This has mainly
The case illustrates that the scope of protection
after the expiry of a patent or, in this case,
revolved around so-called new media such as
for trade or company names in Sweden is Supplementary Protection Certificate (SPC).
blogs and Internet forums.
strong. The letter combination GG as such
In order to include a pharmaceutical in the
has low inherent distinctiveness and the word
Meanwhile, the courts in Sweden have also
Sömnadsindustri is merely descriptive. In spite
government-run benefit system, the supplier
issued some important decisions that are of
of this, the local small business that trades
must agree on a price with the Pharmaceuticals
interest to IP practitioners. This article will
under the name GG Sömnadsindustri was able
Benefits Agency (PBA). The question in the
review some of the most interesting decisions
to stop the famous Italian fashion house. If
case was whether such negotiations and price
of the past year and elaborate on what influence
Gucci now designates Sweden via a Community
agreement may be considered as an offer for sale
the Pirate Bay verdict and the Pirate Party may
Trademark, it may still get a registration. It will
and thereby an infringement of the SPC.
have on the general IP debate in Sweden and
also be difficult for GG Sömnadsindustri to
abroad.
The court concluded that the company negotiating
challenge this, as it will have to show more than
with the PBA did not intend to actually sell the
just local significance.
trademarks
pharmaceutical to the PBA, only to agree on a
price for sales made after the expiry of the SPC.
Guccio Gucci applied for registration in
Legitimate delays
Sweden of the marks ‘GG’ and ‘GG & design’
Proceedings before the PBA could thus not be
via designations in international registrations
A question about legitimate delay before using
considered as an offer for sale and consequently
of the marks. The registrations cover goods in
a trademark was discussed in the Svea Court
the generic company did not infringe the SPC.
Class 25.
of Appeal in a case. There is a requirement in
The Svea Court of Appeals has also decided
the Swedish Trade Mark Act to put a registered
The Patent Office barred the registration on
patent infringement by way of equivalence in two
trademark to actual use within five years from
the basis of the prior trade name of a sole
cases. The circumstances are too complex for this
registration. But a company may defend its
proprietorship, GG Sömnadsindustri. The word
article, but suffice to say that the Swedish courts
registration against a cancellation claim if it can
‘Sömnadsindustri’ means sewing industry.
still consider that a patent can be infringed even
show proper reasons for non-use.
The business of the sole proprietorship is the if the accused product, method or use is not
manufacture and sale of clothing and textiles. In this case, the product was not put on the within the literal scope of the claims.
www.worldipreview.com World Intellectual property review September/October 2009 47
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