Finnish Market Court on Parasitic Copying and Misappropriation of Goodwill 

The Market Court has on 19 November 2014 ruled on a trademark case (MAO:809/14) concerning alleged slavish imitation and unfair exploitation of goodwill. In the case, which was initiated by Valio Oyj, it was alleged that Bunge Finland Oy would have slavishly imitated Valio’s trademarks OIVARIINI and VOIMARIINI by using their own trademark KEIJURIINI as a part of the Keiju family of butter and butter-like products. Based on the evidence presented before it, the Market Court ruled that neither the mark “KEIJURIINI” nor the suffix “-riini” alone created an association with Valio Oyj’s trademarks. Therefore Bunge Finland Oy did not unrightfully make use of the reputation or recognition of Valio Oyj’s trademarks.  A dispute has previously arisen between Valio Oyj and Arla Oy on the use of the word INGMARIINI on similar grounds. These disputes involved a claim of a breach of trademark, while as the new ruling by the Market Court denied claims of unfair marketing. The Supreme Court dismissed claims of trademark infringement (Supreme Court decision no 2010:12; given on 19 February 2010). However, the Supreme Administrative Court refused the registration of the trademark “INGMARIINI” in its conflicting decision (Supreme Administrative Court Decision no 2011:1996, given on 8 July 2011). The decision of the Supreme Administrative Court did not prevent the use of the mark, and Arla has still used the mark as an unregistered trademark and re-filed for the registration for same and similar marks. These applications are pending.

IT & Communications

The New Information Society Code Will Enter into Force on 1 January 2015 in Finland 

The new code codifies and replaces various acts in the field of telecommunications, such as the Communications Market Act. Changes for an actor in the field are firstly simpler licenses, since granting of most program licenses are transferred to the Finnish Communications Regulatory Authority, FICORA, from the Council of State. Additionally, FICORA is given broader rights to oversee pricing in the telecommunications market by issuing decisions, for example, by issuing binding maximum prices in situations of market disturbances, even to companies without significant market power. The code extends the liability of telecommunications companies offering services in which customers can pay for goods or services as a part of their phone invoice. A telecommunication company will now be jointly liable with the provider of goods or services towards customers in situations where customers are entitled to refunds, similar to credit card companies. Furthermore, the code extends electronic privacy regulations previously limited to traditional telecommunications companies to new forms of message exchanging, such as social media services Roschier will be publishing a separate in-depth article on the code and its effects later in the year.

Marketing & Consumer

New Commission Proposals Regarding Regulations on Medicinal Products   

The Commission has proposed separating the legislation on medicinal products for veterinary use from the legislation on those for human use. According to the proposal for a Regulation amending Regulation (EC) No 726/2004 (COM/2014/0557), provisions regarding veterinary medicinal products are deleted from the Medicines Regulation. The idea behind the proposal is inter alia to make veterinary medicinal products more accessible and to promote innovation and competitiveness. Granting and maintaining marketing authorization for veterinary medicinal products is proposed to be legislated by a new Regulation on veterinary products (COM/2014/0558). The new Regulation will cause some changes if it comes into effect. It is suggested in the proposal that a granted marketing authorization is valid for unlimited time. Currently, a marketing authorization has to be renewed every five years. It is also proposed that European Medicines Agency establishes a product database for all authorized veterinary medicinal products in the EU. Relevant information of the database, such as a list of the authorized products and their summary of product characteristics, would be available to the public. According to the proposal, Member States can choose the language of the text used in the labeling of veterinary medicinal products authorized in their territory. However, the package leaflet has to be still in the official language of the Member State. In the Commission proposal, prolongation of the periods of the protection of technical documentation is also suggested.  If the new Regulation comes into effect, the Finnish Medicines Act and Veterinary Medicines Act have to be amended accordingly.  In addition, the Commission gave a proposal (COM/2014/0556) for a Regulation on the manufacture, placing on the market and use of medicated feed and repealing Council Directive (90/167/EEC). The proposed Regulation confirms the provisions regarding manufacturing, transporting, entering the market and using of medicated feed and intermediate products.

Telge Energi Prohibited from Using Certain Marketing Activities in Sweden 

The Swedish Market Court has in a recent case (MD 2014:9) concerning energy marketing discussed,inter alia, what constitutes misleading and unfair marketing. In the case, the electric company Bixia AB (“Bixia”) brought a claim against its competitor Telge Energi AB (“Telge Energi”) regarding a commercial, an ad and certain statements - which Bixia claimed to be in breach of the Swedish Marketing Act (2008:486).  The Court found that the expression in the Telge Energi’s commercial “Have you not switched to solar power yet?” along with pictures of natural disasters gave the impression that those who do not switch to solar power contribute to the negative environmental effects. Accordingly, the Court concluded that Telge Energi had alluded to the consumers’ emotions without a reasonable cause in order to get them to choose Telge Energi’s electricity above their competitors’ and that the commercial constituted unfair marketing. Secondly, The Court concluded, inter alia, that the use of the ad picturing (among other things) a green bulletin board with Telge Energi’s competitors’ dirty and Telge Energi’s clean envelopes posted on it, as well as a statement saying that Telge Energi is first in Sweden providing all customers with solar power while competitors continue to sell soiled coal power, was misleading and discrediting.  Lastly, the Court concluded that statements about Telge Energi being the first provider of solar power were misleading and discrediting and moreover did not meet the requirements for an approved comparison. The Court also ruled that the statements of Telge Energi stating that its competitors provide coal power and Telge Energi solar power and clean electricity were misleading and unfair. Consequently Telge Energi was prohibited from using said marketing actions.

Swedish Market Court Finds Statements about Incineration Toilets Misleading 

The Swedish Market Court has in a recent case (MD 2014:11) concerning the marketing of incineration toilets prohibited misleading and unfair marketing under the Swedish Marketing Act (2008:486). In the case the Court ruled that statements such as “the safest incineration toilet”, “the only toilet system in the world in which all medicine residues are burned” and “a unique toilet that could save the Baltic Sea” used by a sales company in the promotion of an incineration toilet were misleading and unfair.  Initially, the Court concluded that the average consumer perceives the statement “the safest incineration toilet” with the meaning that “the toilet system is the one in the world where all medicine residues are burned” and “unique toilet that could save the Baltic Sea”, literally. The Court also found that the defendant had not proved the accuracy of the said statements. Furthermore, the Court concluded that there were no reasons to assume that an average customer would not perceive the statements as seriously meant and hence they could not be considered as acceptable excesses. The statements were therefore considered misleading and the defendant was prohibited from using the statements or statements with substantially the same meaning.

Swedish Market Court Rules that Too Similar Vehicles Implied a Risk for Confusion 

The Swedish Market Court has in a recent case (MD 2014:10) regarding marketing of taxis discussed what constitutes misleading and unfair marketing. In the case the taxi company Taxi Göteborg brought an action against a taxi driver marketing its business under a similar name and car decals as Taxi Göteborg within the same area as Taxi Göteborg.  The Swedish Market Court concluded that the characteristics (decors containing “Taxi Göteborg” and a decorative stripe which the taxi driver had used on his vehicle) were similar to Taxi Göteborg’s decors as regards color, design and location. The Court found the fact that the vehicle had been equipped with a number similar to Taxi Göteborg, had also triggered associations to Taxi Göteborg.  The Court concluded that the characteristic features and the decorative stripe could be regarded a misleading imitation which could lead to confusion. Consequently, the Court found the marketing unfair and prohibited the defendant from using the said characteristics.

In Brief

Restrictions on Claims for Declaratory Judgments in Sweden

The Swedish Market Court has in a recent decision (C-6/14 and C-7/14) provided guidance regarding restrictions on claims for declaratory judgments. In the case in question the plaintiff had withdrawn its action for injunction regarding certain statements, whereupon the defendants requested for a declaratory judgment stating that the said statements were permitted.  However, the Court concluded that such declaratory judgment was not possible since this must apply to a specific legal relation between the parties. Since said statements were not questioned, such an examination should entail an abstract review of legality which is not possible under Swedish law