1 Introduction

This is an overview of Swedish Intellectual Property Law. The purpose with the overview is to supply basic knowledge that is of value when reading about developments in this field in coming newsletters.

The overview is structured as follows:

  • Copyright
  • Patents
  • Registered Designs
  • Trademarks
  • Trade names

2 Copyright

2.1 International Regulations

Sweden is a member of the Berne Union, and has adopted the latest revision of the so-called Paris text of the Berne Convention. Sweden has also entered the Universal Copyright Convention.

2.2 The Emergence And The Object Of Copyright Protection

Pursuant to Section 1 of the Swedish Copyright Act (1960:729) (the "Copyright Act"), two main categories of works are granted protection, namely literal works and artistic works. Different types of works fall within the scope of these two categories, e.g. fictional and descriptive representations in writing or speech, computer programs, musical or dramatic works, cinematography works, photographic works or another works of fine arts, works of architecture or applied art or works expressed in some other manner. Protection arises automatically without any formalities. The requirement is that the work reaches a certain level of creativity (Sw: verkshöjd). Copyright only protects the form of the object, not the intellectual essence of the expression.

2.3 The Scope Of Protection

Pursuant to Section 2 of the Copyright Act, copyright includes the exclusive right to control the work by reproducing it and by making it available to the public, in its original form or in an altered form, in translation or adaptation, in another literary or artistic form, or by other technical means. Besides these so-called economic rights, copyright also includes moral rights. Pursuant to Section 3 of the Copyright Act, the name of the author must be stated, to the extent and in the manner required by proper usage, when a work is reproduced or made available to the public, and a work may not be changed in a manner which is prejudicial either to the author’s literary or artistic reputation or to his individuality, nor may it be made available to the public in such a manner.

2.4 Limitations And Duration

According to Section 9 of the Copyright Act, copyright does not subsist in i) laws and other regulations, ii) decisions by public authorities, iii) reports by Swedish public authorities and iv) official translations of texts mentioned under i)-iii). However, copyright does subsist in maps, drawings, paintings, engravings, musical works and works of poetry which form part of such official documents.

Moreover, Chapter 2 of the Copyright Act contains some important limitations on copyright. For instance, anyone is entitled to make single copies for private purposes of works that have been made public. There are also certain exceptions for educational activities, social purposes, photographic reproductions in archives and libraries, quotations, reproduction of newspaper articles or of work in anthologies for education, performance for education, distribution or public exhibition of copies of published works.

Copyright is limited in time and subsists until the end of the seventieth year after the year in which the author deceased or, if there were several authors, after the year in which the last surviving author deceased.

2.5 Ownership And Transfer Of Copyright

Originally, copyright to a work is granted the creator of the work, i e the author. The economic rights of the author may be transferred entirely or partly by assignment, inheritance or will, to both legal and natural persons. Moral rights cannot be transferred. However, in accordance with Section 3, paragraph 3 of the Copyright Act an author may waive his moral rights in relation to use that is limited as to its character or scope. Moreover, there are special provisions in the Copyright Act regarding transfer of right in relation to public performances, publishing and film contracts. There are also rules regarding computer programs created in employment relations.

2.6 Neighbouring Rights And Protection Of Photographic Pictures

The rights to artists’ performances, phonographic recordings, broadcasts, catalogues and certain photographic pictures, referred to as "neighbouring rights" are covered by Chapter 5 of the Copyright Act. The protection is more limited than regarding the rights of the author. For example, only performing artists and photographers are attributed with moral rights. The neighbouring rights include the right of reproduction and the right to make the object at issue available to the public. The neighbouring rights subsist for a period of fifty years, with the exception for catalogues or similar products where the protection subsists for 15 years.

2.7 Sanctions

Chapter 7 of the Copyright Act contains provisions regarding penalty and damages in cases of copyright infringements.

According to Section 53 of the Copyright Act, anyone who commits an act, which infringes the copyright of a literal or artistic work, shall be punished by fines or imprisonment for not more than two years, if the act is committed wilfully or with gross negligence.

Pursuant to Section 53 a of the Copyright Act, a Court may, at the request of the author or his successor in title, or of a person who, on the basis of a license, has the right to use the work, issue an injunction prohibiting, under the penalty of a fine, a person who infringes someone’s copyright, to continue that act. If the plaintiff shows a probable cause that an infringement is taking place and if it can reasonably be expected that the defendant, through the continuation of the infringement, diminishes the value that the copyright confers, the Court may issue an interlocutory injunction until the case has been finally adjudicated or otherwise is decided.

Anyone who exploits a work in violation of the Copyright Act shall pay such compensation to the author or copyright owner as will constitute a reasonable remuneration for the exploitation. Furthermore, pursuant to Section 54 of the Copyright Act, the person who is infringing someone’s copyright has to pay damages, including compensation for losses, mental suffering and other injury, if the infringement is being made wilfully or with gross negligence.

3 Patents

3.1 International Regulation

This branch of law has been highly affected by the international efforts to harmonise the patent law of different countries.

The Swedish Patent Act (1967:837) ("the Patent Act") has been amended several times during the past years, mainly due to international developments, primarily the Swedish ratification of the Patent Co-operation Treaty (the "PCT"), and the European Patent Convention (the "EPC").

Sweden is a party to the Paris Convention.

3.2 The Emergence And Object Of Patent Rights

As a result of the international co-operation, there are today three possibilities to obtain a patent valid in Sweden; (i) through a Swedish application for patent (Chapter 1-2 of the Patent Act), (ii) through an international application for patent according to the PCT (Chapter 3 of the Patent Act), or (iii) through a European application for patent according to the EPC (Chapter 11 of the Patent Act). The different types of applications all result in a Swedish patent with validity in Sweden, and which is subject to the rules of the Patent Act.

To obtain a patent one has to file an application to a registry authority. The authority is either the Swedish Patent and Registration Office (the "PRV") or the European Patent Office (the "EPO"), depending on the kind of application. The application shall, pursuant to Section 8 of the Patents Act, contain information about the inventor, a detailed description of the invention including relevant drawings etc., the so-called "claims" stating what is sought to be protected by the patent and a brief summary of the description and the claims. The inventor must always be a natural person. If the application is filed by anyone else but the inventor, the applicant must prove his title to the invention. Applicants residing outside EU must have representation inside EU. As regard the description, it must be detailed enough to enable a technically skilled person to perform the invention.

Pursuant to Section 1 of the Patents Act the object of patent rights is always an invention, which could generally be described as a "technical solution to a technical problem", excluding mere discoveries, scientific theories, mathematical methods, aesthetic creations, schemes or rules of methods or a program for computers. Biological developments regarding plants and animals are also excluded. Patents are not granted inventions considered contrary to morals or public order.

To be granted a patent an invention has to be new in relation to "the state of art" at the time of the application, and differ essentially from what is known before the filing date.

The invention is thoroughly tested by the PRV. If the application meets the requirements of the Patent Act a patent is granted. During a period of nine (9) months after the granting of the patent anyone may object to the patent with the result of a possible rescission of the patent.

3.3 The Scope Of Protection

According to Section 1 of the Patents Act, a patent gives the inventor or his successor in title, the exclusive rights to use the invention commercially. These exclusive rights are further defined in an exhaustive enumeration in Section 3 of the Patents Act. The exclusive rights are that no one may, without the consent of the patent holder, use the invention by;

  1. making, offering, putting on the market or using a product protected by the patent or importing or possessing such a product for these purposes;
  2. using a process which is protected by the patent or, while knowing, or it being obvious from circumstances, that the use of the process is prohibited, without consent of the proprietor, offering the process for use in Sweden;
  3. offering, putting on the market, or using the products made by a process protected by the patent or importing or processing the product for these purposes.

The scope of protection is strongly connected with the specifications, the claims, in the application. To determine whether there has been an infringement or not, the court has to carry out an interpretation of the claims. The Court then compares the description of the patented invention with the potentially infringing product. All changes, improvements or other modifications of an invention, which are easily available among experts, shall be considered to be within the scope of protection. This is known as the "doctrine of ecquivalence".

3.4 Duration And Limitation

Firstly, a patent is limited in time. Pursuant to Section 40 of the Patents Act, a patent may be kept in force until 20 years have elapsed from the day of the filing of the patent application. However, in order to keep the patent in force, a prescribed annual fee must be paid. According to Section 51, if the annual fee is not duly paid the patent lapses as of the beginning of the year for which the fee has not been paid.

Furthermore, non-commercial use, and exploitation by means of experiment of an invention, is excluded from the exclusive rights pursuant to Section 3, of the Patents Act.

The rigorous principle of "first to file" is modified by Section 4 of the Patent Act which gives an inventor who has been using an invention without filing for a patent prior to the filing date, a right to continue his commercial exploitation under certain conditions.

Finally, there are also a few rules on compulsory licenses, of which the most important one is connected to the patent holder’s omission to use the patent for a certain period of time, according to Section 45 of the Patents Act.

3.5 Ownership And Transfer Of Patent Rights

Pursuant to Section 1 of the Patents Act, patent rights are granted to the inventor. However, the right to apply for a patent is transferable. The patent right is granted to the applicant, who, if he is not the inventor, must prove his title. If several inventors have developed the invention together they shall all be mentioned as inventors in the application.

A patent may be transferred by assignment, inheritance or will. The patent holder often lets others exploit the patented invention by a licensing agreement.

3.6 Sanctions

Chapter 9 in the Patents Act contains provisions for penalty and damages in cases of infringement.

According to Section 57, anyone who commits an act, which infringes the rights of a patent holder, shall be punished by fines or imprisonment for not more than two years, if the act is committed wilfully or with gross negligence.

Section 57 a grants the patent holder a possibility to obtain at a court of law an injunction prohibiting, under penalty of a fine, a person who commits a patent infringement to continue the infringement. If the plaintiff shows a probable cause that an infringement is taking place and if it can reasonably be expected that the defendant, by continuing the infringement, diminishes the value that the patent confers, the Court may issue an interlocutory injunction until the case has been finally adjudicated or otherwise is decided.

Furthermore, pursuant to Section 58 of the Patent Act the patent holder has a right to receive damages, if a work is exploited wilfully or negligently. Even if the infringing party has not been acting negligently the patent holder has a right to compensation for the use of the invention.

4 Registered Designs

4.1 International Regulations

Designs are protected by the Paris Convention, of which Sweden, as mentioned above, is a party. In the field of registered designs, harmonisation has so far not been effected to the same extent as for example in the field of patents.

4.2 The Emergence And Object Of Protection For Registered Designs

The Design Protection Act (1970:485) offers protection, upon registration at the Swedish Patent and Registration Office (the "PRV") for a design, which means a model for the appearance of a good or the model for an ornament. The object may be a one- or two-dimensional object, a product aiming at purely aesthetic effects as well as a technical device. The object has to be a product, meaning something manufactured and sold separately (cf. the problem with spare parts).

To be registered, the design must, pursuant to Section 2 of the Design Protection Act, differ substantially from what is known prior to the filing date of the design application. Hence, there is a demand on absolute novelty; all prior designs are taken into consideration. Furthermore, the object has to present a substantial difference in appearance in relation to other known designs. Pursuant to Section 10 of the Design Protection Act, the applicant must file a declaration stating that he was not acquainted with the design before the filing date.

Section 4 of the Design Protection Act sets out certain general impediments to registration.

The application is tested by the PRV. If the application meets the requirements of the Design Protection Act it is published. During a period of two (2) months after the publication, anyone may, pursuant to Section 18 of the Design Protection Act, object to the registration. If there are no relevant objections within that time, the design is then registered.

4.3 The Scope Of Protection

The right to a registered design contains, pursuant to Section 5 of the Design Protection Act, an exclusive right to exploit the design commercially by manufacturing, importing, offering, vending, assigning, or leasing any article which does not substantially differ in appearance from the design. The protection is limited to articles for which the design has been registered and articles similar thereto.

The difference requirement is not only a prerequisite for registration, but is also important to determine the scope of protection. There is nothing like the patent holder’s claims to rely on to determine whether there is an infringement of the design right. The representation of the design in the application determines the scope of protection. The scope of protection shall correspond to the difference requirement, with the result that characteristic designs obtain a wider scope of protection than designs of a more common nature.

4.4 Duration And Limitations

Pursuant to Section 24 of the Design Protection Act, the design right is valid for five years from the day of the filing of the design application. The registration may on request be renewed for two further five-year periods. Thus, the maximum period of protection for a design right is 15 years. After that period, anyone may use and copy the design.

Compulsory licenses can be granted under specific circumstances, Sections 28 – 30 of the Design Protection Act.

4.5 Ownership And Transfer Of Registered Designs

Pursuant to Section 1 of the Design Protection Act the designer has to be a natural person. The designer shall always be mentioned in an application. The possibility to apply for a registered design belongs primarily to the designer himself but may be transferred to another person, legal or natural. The design right may be transferred by assignment, inheritance or will.

4.6 Sanctions

According to Section 35 of the Design Protection Act, anyone who commits an act, which infringes someone’s design right, shall be punished by fines or imprisonment for not more than two years, if the act is committed wilfully or with gross negligence.

Section 35 a of the Design Protection Act grants the design right holder a possibility to obtain at a court of law an injunction prohibiting, under penalty of a fine, a person who commits a design infringement to continue the infringement. If the plaintiff shows a probable cause that an infringement is taking place and if it can reasonably be expected that the defendant, by continuing the infringement, diminishes the value that the design right confers, the Court may issue an interlocutory injunction until the case has been finally adjudicated or otherwise is decided.

Furthermore, pursuant to Section 36 of the Design Protection Act, the design right holder has a right to claim for damages, if a design is exploited wilfully or negligently. In other cases of exploitation the design right holder has a right to compensation for the use of the design.

5 Trademarks

5.1 International regulations

The Swedish Trademarks Act (1960:644) (the "Trademarks Act") is of old origin, but has been amended several times, mainly due to international developments. The most important changes during the last years are related to the implementation of the Council Directive (89/104/EEC) on harmonisation in the field of trademarks and the European Regulation (40/94/EEC) on the Community Trademark.

Sweden is a party to the "Madrid Protocol". Through this system protection for a trademark in Sweden may be obtained by an international trademark registration effectuated by WIPO.

As mentioned above, Sweden is also a party to the Paris Convention.

5.2 The Emergence And Object Of Trademark Protection

Pursuant to Section 1 of the Trademarks Act, trademark protection may be granted by registration of the trademark at the Patent and Registration Office (the "PRV"). Protection is also granted, pursuant to Section 2 of the Trademarks Act, where the trademark has become established on the market. As regards the latter case, such establishment exists if the trademark is generally known to those to whom it is addressed as the symbol for goods of the proprietor of the mark.

In the case of registration, an application is filed to the Patent and Registration Office containing a reproduction of the trademark and a definition of the classes of goods and/or services for which protection is sought.

Pursuant to Section 1 of the Trademarks Act a trademark may consist of any sign capable of being represented graphically. However, such a sign must be capable of distinguishing the goods or services offered by a trader in his business from those of another.

5.3 The Scope Of Protection

The scope of protection is identical whether the trademark right is based on registration or use. The exclusive rights to a trademark, pursuant to Section 4 of the Trademarks Act, imply that only the proprietor is entitled to use the symbol, or a confusingly similar symbol, on its goods in a commercial activity.

Section 6 of the Trademarks Act specifies what confusing similarity means. To be considered confusingly similar a symbol must be used for goods of the same or similar kind as the protected goods. Outside this field confusing similarity may also be the case if a trademark has a high standing in the country and the use of another similar mark takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the highly regarded trademark.

5.4 Duration And Limitations

Section 14 of the Trademarks Act contains a list of absolute hindrances to registration. For example a trademark may not be registered if it contains something that is liable to be perceived as someone’s family name or if it is confusingly similar to the trade name or trademark of another party with earlier priority.

A trademark registration is valid for ten years from the day of the filing of the trademark application, but may be renewed unlimited times.

5.5 Ownership And Transfer

A trademark may be transferred by assignment, inheritance or will. Moreover, according to Section 32 of the Trademarks Act, there is a presumption that the trademark is transferred as a consequence of a sale of an enterprise, unless otherwise is stipulated between the seller and the buyer. A trademark may also be transferred separately, or be the object of a licence.

5.6 Sanctions

According to Section 37 of the Trademarks Act, anyone who commits an act, which infringes the right to a trademark, shall be punished by fines or imprisonment for not more than two years, if the act is committed wilfully or with gross negligence.

Section 37 a of the Trademarks Act grants the trademark owner a possibility to obtain at a court of law an injunction prohibiting, under penalty of a fine, a person who commits a trademark infringement to continue the infringement. If the plaintiff shows a probable cause that an infringement is taking place and if it can reasonably be expected that the defendant, by continuing the infringement, diminishes the value that the trademark right confers, the Court may issue an interlocutory injunction until the case has been finally adjudicated or otherwise is decided.

Furthermore, the trademark owner has, pursuant to Section 38 of the Trademarks Act, a right to claim for damages, if a trademark is exploited wilfully or negligently. In other cases of exploitation the trademark owner has a right to compensation for the use of the trademark.

6 Trade Names

The protection of trade names in many ways resemblance the above-described protection of trademarks. The protection of trade names is governed by the Trade Names Act (1974:156).

6.1 The Emergence And Object Of Trade Name Protection

A trade name is generally defined as the name under which a tradesman conducts his business.

As is the case for trademarks, trade name protection is granted through registration of the trade name with the Patent and Registration Office (the "PRV") or through establishment on the market.

6.2 The Scope Of Protection

The exclusive right to a trade name means that no one except the trade name owner is entitled to use a confusingly similar business symbol within the field for which the trade name is protected, unless it can be established that such use causes no damage to the owner.

6.3 Duration

The right to a trade name is not limited in time. Thus, there is no need for renewals in relation to the registration of a trade name.

6.4 Ownership And Transfer Of Trade Names

In contrast with trademark law, a trade name may only be assigned in connection with the assignment of the business in which the trade name is used.

6.5 Sanctions

According to Section 18 of the Trade Names Act, anyone who commits an act, which infringes the right to a trade name, shall be punished by fines or imprisonment for not more than two years, if the act is committed wilfully or with gross negligence.

Section 15 a of the Trade Names Act grants the trade name owner a possibility to obtain at a court of law an injunction prohibiting, under penalty of a fine, a person who commits a trade name infringement to continue the infringement. If the plaintiff shows a probable cause that an infringement is taking place and if it can reasonably be expected that the defendant, by continuing the infringement, diminishes the value that the trade name right confers, the Court may issue an interlocutory injunction until the case has been finally adjudicated or otherwise is decided.

Furthermore, the trademark owner has, pursuant to Section 19 of the Trade Names Act, a right to claim for damages, if a trade name is exploited wilfully or negligently. In other cases of exploitation the trade name owner has a right to compensation for the use of the trade name, if and to the extent it is reasonable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.