The Swedish Court of Patent Appeals Rules that "SKYR" Cannot Be Registered as a Trademark in Sweden 

The Swedish Court of Patent Appeals ("Court") has on the 17 December 2015 ruled in a case between Kavli Holding AS ("Kavli") and Skånemejerier AB (case 15-027) regarding revocation of the registered trademark "SKYR".

Firstly, the Court analyzed whether the word "SKYR" is generic (merely describes the product) or not. Since the word "skyr" was listed in a dictionary, described in a journal and mentioned in an article on Wikipedia as a dairy product that is common in Iceland and has similarities to yoghurt, it indicates, according to the Court, that the word is generic for a certain dairy product. As a rule of thumb, a generic word cannot be registered as a trademark for products it describes. Secondly, the Court held that it had not been proved that "SKYR" had become known among a significant part of the relevant public in Sweden, excluding the possibility that "SKYR" would be a distinctive mark.

With reference to the reasoning above, the Court found that "SKYR" cannot be registered as a trademark for milk and milk products in class 29.

A case from the Finnish Market Court regarding the use of the sign "SKYR" on dairy products was commented in the December edition of the IP & Technology Review.

The Swedish Market Court on Marketing of Mixed Margarine and Butter Products

On 25 November 2015, the Swedish Market Court ("Court") issued its judgment regarding marketing of mixed margarine and butter products (MD 2015:20). Arla Foods AB claimed that Unilever Sverige ABwas marketing "Flora med Smör" ("Flora with Butter") as butter and consequently violated applicable legislation. However, the Court found that the marketing was not misleading and was in compliance with the legal requirements.

Both the EU-legislation and the legislation issued by the Swedish Food Authority specify which trade names and descriptions are reserved for certain products. Additionally, information about food must not be misleading. A product must contain at least 80 % milk fat to be allowed to be marketed as butter. "Flora med Smör" contains significantly less milk fat than 80 %, since it is mainly made on margarine. The Court found that the accurate trade name for "Flora med Smör" is "matfettsblandning 70 %" (fat spread 70 %). 

However, there are some exceptions in the legislation on when a reserved trade name like butter may be used to market a product that is not strictly qualified as butter. One exception is for mixed products when a milk ingredient is an essential part of the product. The Court finds that butter is an essential part of the product "Flora med Smör" and that it can be used in combination with another word as a trade name for the product. The true trade name of the product must be placed in a conspicuous place where it is clearly readable. The Court finds that it is enough that the text is at the bottom of the package and in the same font and size as the other text at the bottom, provided that the relevant text is in bold letters. Additionally, the Court concluded that the marketing is not misleading since the product with the name "Flora med Smör" is not perceived by the average consumer as being butter.

The New EU Regulation on Novel Foods Streamlines Access to the EU Market

The new EU Regulation (No 2015/2283) on Novel Foods clarifies the scope of the definition of novel food, centralizes the authorization procedure for placement of novel foods on the EU market and addresses the issue of data protection. Most of the provisions of the new EU Novel Foods Regulation will be applicable from 1 January 2018.

Novel food means any food that has not been used for human consumption to a significant degree within the EU before 15 May 1997. The new EU Novel Foods Regulation contains largely the same general definition for novel foods as its precedent but clarifies and updates the categories of novel foods. The categories of novel foods include among others food consisting of microorganisms, fungi or algae as well as food consisting of engineered nanomaterials.

The new EU Novel Foods Regulation creates a centralized procedure for the authorization of novel foods. Under the new procedure the applicants will submit their applications directly to the European Commission. This change hopefully streamlines the current procedure where the applicant submits request to the Member State where the product is to be placed on market for the first time. If the applicant is successful, the Commission will authorize and add a novel food to the Union list. A market operator may place only novel foods authorized and included in the Union list on the market within the EU. The Union list replaces the need for authorization explicitly granted to a market operator. After authorization and inclusion of a novel food to the Union list, the Commission may impose post-market monitoring requirements.

To protect investments and stimulate innovations, the new EU Novel Foods Regulation allows the applicant that has submitted newly developed scientific evidence and proprietary data in support of its application to request for a five-year period of data protection from the date of authorization of the novel food. During that period the information may not be used to the benefit of a subsequent application.

 CJEU Provides Guidance on the Permissible Requirements for Distance Selling of Alcohol

The Court of Justice of the European Union (''CJEU'') ruled in its judgement Valev Visnapuu v.Kihlakunnansyyttäjä, Suomen valtio - Tullihallitus (C‑198/14) that the Finnish legislation relating to the excise duties on certain beverage packaging was compliant with the EU law but found some aspects of the retail sale license system problematic.

A company based in Estonia offered distance purchasing of alcohol and home delivery to Finnish residents through its website. The Estonian company had not paid excise duties on certain beverage packaging in Finland. The Finnish law provides exemption from the excise duty if the packaging is integrated in a functioning return system. The controller of the Estonian Company claimed that requirements for exemption were indirectly discriminatory as it was expensive to join a functioning return system for distance seller from another Member State.

The CJEU concluded that the possible difficulties to join in a functioning return system did not constitute a difference in treatment between beverage packaging from other Member States and similar domestic products in a sense meant in Article 110 TFEU. Further, the legislation on excise duties was regarded as a measure implementing objectives of Directive 94/62/EC and the polluter-pays principle. Therefore, the legislation on excise duties was compliant with the EU law.

The Finnish legislation imposes obligation to have a retail sale license in order to import alcoholic beverages for the purposes of retail sale in Finland. The Estonian company did not have such license. The CJEU ruled that the requirement of a retail sale license constituted a measure having equivalent effect to a quantitative restriction on imports as meant in Article 34 TFEU. The CJEU considered justifiability of the requirement of retail sale license on health grounds under Article 36 TFEU. Justifiability on health grounds requires that the measure is proportionate to the objective to be achieved and does not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Regarding proportionality, the CJEU found it problematic that authorized retail outlets are effectively banned from distance selling with home delivery while Alko was in some cases entitled to sell alcoholic beverages by mail order. Furthermore, the CJEU questioned whether the exemption from retail sale license requirement allowing manufacturers of alcoholic beverages established in Finland to sell their own production meeting certain criteria could be discriminatory for goods originating from other member states. However, the CJEU left it for the Finnish Court to make a final decision on these issues.

In Brief

Opening Hours for Retail Stores Released as of 1 January 2016 in Finland 

The Act restricting opening hours of retail stores and barber's and hairdresser's shops was repealed and opening hours released as of 1 January 2016 (1618/2015). According to the Government Bill (HE 88/2015) the purpose is to allow, for instance, entrepreneurs to set more freely their opening hours than previously and improve the competitiveness of retail shops in relation to online shops. The repeal of the Act restricting opening hours also renders it unnecessary to apply permits for exemptions from opening hours. 

CJEU Clarifies that in Calculating Sodium Content of Natural Mineral Waters All Chemical Forms of Sodium Should Be Taken into Account 

The Court of Justice of the European Union ("CJEU") concluded in its judgement Neptune Distribution SNC v Minister for Economic Affairs and Finance (C-157/14) that it is not possible to use the claim "very low in sodium/salt" in relation to mineral waters and waters in light of the Regulation on Nutrition and Health Claims (No 1924/2006). Further, the Directive on Natural Mineral Waters (2009/54/EC) precludes the use of expressions "low in sodium or salt" or "suitable for low sodium diet" on packaging, labels or advertising of mineral waters in a case that sodium content is equal to or exceeds the limit of 20 mg/l. In calculating the sodium content the total amount of sodium present in the natural mineral water should be taken into account regardless of its chemical form. 

CJEU Gave Guidance on Assessment of Evocation under the Article 16(b) of Regulation No 110/2008

The Court of Justice of the European Union ("CJEU") gave guidance on the interpretation of the concept "evocation" in its judgement Viiniverla Oy v. Sosiaali- ja terveysalan lupa- ja valvontavirasto (C-75/15). The said case concerned protection of geographical indication "Calvados" against evocation allegedly caused by the use of name "Verlados" in marketing of cider spirits in Finland.

According to the CJEU, the national court is required to refer to the perception of the average consumer, who is reasonably well informed and reasonably observant and circumspect when assessing the existence of evocation. In this connection the CJEU concluded that the definition of consumer is not limited to consumers of the Member State where the product claimed to cause evocation with the protected geographical indication is manufactured. Instead the definition of consumer covers all European consumers. In assessing possible evocation the national court must take into account the phonetic and visual relationship between the concerned names as well as any evidence that may show that such a relationship is not fortuitous. The use of name constituting evocation may not be authorized even if there is no likelihood of confusion.

A New Origin Marking for Swedish Food Will Be Soon Launched: "FRÅN SVERIGE" 

A new marking "FRÅN SVERIGE" indicating the origin of the food will be available soon for use on food packages in Sweden. The voluntary marking has blue and yellow colors and may be used on all types of food, ingredients and plants that meets the specified criteria. The initiators behind this marking are "The Swedish Food Federation", "Svensk Daglivaruhandel" and "The Federation of Swedish Farmers – LRF" which jointly have started "Svenskmärkning AB". Any company wishing to use this marking on their products can apply for a license from Svenskmärkning AB.