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Rights and protection
Is ownership of a trademark in your jurisdiction determined on a first-to-file or first-to-use basis?
Trademark ownership in Sweden is not determined exclusively on a first-to-file or first-to-use basis. Rather, the party which first acquires rights to a trademark – whether by use or registration – will be considered the owner. Further, a trademark cannot be registered if it can be confused with a mark that is used in Sweden or abroad if the applicant filed the application in bad faith.
What legal protections are available to unregistered trademarks?
Unregistered trademarks can acquire the same protection as registered trademarks if used in such a way that the mark has become known as a sign for the goods or services provided thereunder. If the mark is known as a sign only for the goods or services provided thereunder in a certain part of Sweden, it is protected only in that part of the country.
How are rights in unregistered marks established?
An unregistered mark is protected if it is known by a significant part of the relevant public in Sweden (generally around 30%) as a sign for the goods or services that are being offered thereunder. In order to establish this, information concerning the time during which the mark has been used in trade, details of the value, number of products or services sold under the mark, marketing investments and market surveys is typically required.
Are any special rights and protections afforded to owners of well-known and famous marks?
Yes, the protection of well-known and famous marks extends not only to the use of an identical or similar mark for identical or similar goods or services, but also to dissimilar goods or services where the use would take unfair advantage of, or damage the reputation or distinctiveness of, the well-known and famous mark.
To what extent are foreign trademark registrations recognised in your jurisdiction?
EU trademarks are recognised in Sweden, as well as international trademark registrations administered by the World Intellectual Property Organisation designating Sweden. Further, if the applicant was acting in bad faith at the time of application or registration, the Trademarks Act (2010:1877) provides for actions against the registration of a trademark if it can be confused with a mark which, at the time of the application, was being used by a third party in Sweden or abroad and is still in use.
What legal rights and protections are accorded to registered trademarks?
Trademark owners can prevent third parties from using a mark in the course of trading which is:
- identical to a trademark for identical goods or services;
- identical or similar to a trademark for identical or similar goods or services if there is a likelihood of confusion, including the likelihood of association between the user of the mark and the owner of the trademark; or
- identical or similar to a trademark which is known in Sweden by a significant part of the relevant public if the use concerns goods or services and takes unfair advantage of or, without due cause is detrimental to the distinctiveness or the reputation of the trademark.
Protection is valid for 10 years and can be renewed for an unlimited number of consecutive 10-year periods.
Who may register trademarks?
Individuals or legal entities can register Swedish trademarks.
What marks are registrable (including any non-traditional marks)?
A trademark can be any sign capable of being represented graphically – including words and personal names, figurative elements (eg, fonts and colours), letters, numerals and the shape of goods or their packaging – provided that it is distinctive. Further, non-traditional marks such as sounds and smells may in some cases be registered as trademarks (eg, melodies that are capable of being represented in sheet music). From January 1 2019, the graphical representation requirement will no longer apply, so that signs can be represented in any appropriate form using generally available technology.
Can a mark acquire distinctiveness through use?
Yes, a mark can acquire distinctiveness as a result of extensive use and promotion. Acquired distinctiveness can be established if the mark has become capable of distinguishing the goods or services of one business activity from that of another.
On what grounds will a mark be refused registration (ie, absolute and relative grounds)?
A trademark will be refused registration if it:
- lacks distinctiveness;
- consists exclusively of a shape which:
- results from the nature of the goods;
- is necessary to obtain a technical result; or
- gives substantial value to the goods;
- is contrary to law, regulations, principles of morality or public policy;
- could deceive the public concerning the nature, quality, geographical origin or any other circumstance relating to the goods or services;
- includes, without permission:
- a state or international emblem or a municipal coat of arms which, under law or regulations, cannot be used as a trademark without authorisation; or
- something that can easily be confused with such an emblem or municipal coat of arms;
- includes, without permission, or can be confused with a mark that cannot be used as a trademark under the Act on Protection for Marks in International Humanitarian Law (2014:812); or
- contains or consists of any sign which is liable to be conceived as a geographical indication for wines or spirits and relates to wines or spirit of a different origin.
A trademark must not be registered without the consent of the relevant owner of an earlier mark (eg, a trademark, registered company name or protected surname) if it:
- is identical to an earlier mark used for identical goods or services;
- is identical or similar to an earlier mark used for identical or similar goods or services if a likelihood of confusion exists, including the likelihood of association between the applicant and the owner of the earlier mark;
- is identical or similar to an earlier mark which is known by a significant part of the relevant public and its use would take unfair advantage of or, without due cause, be detrimental to the distinctive character or repute of the earlier mark; or
- can be confused with a mark that, at the time of application, was being used by a third party in Sweden or abroad and is still in use, if the applicant was acting in bad faith at the time of the application.
Further, a trademark will not be registered if it contains or consists of:
- an element that is likely to be perceived as another party’s company name;
- an element likely to be perceived as another party’s distinctive surname, a well-known artist’s name or similar if the use would cause a disadvantage for the bearer and the name does not obviously refer to someone who is long deceased;
- a picture of someone who is not obviously long deceased; or
- an element that infringes another rights holder’s copyright, photograph or design.
Are collective and certification marks registrable? If so, under what conditions?
Yes, certification marks are registrable by public authorities, foundations, associations, companies and other organisations establishing conditions for, or exercising control of, goods or services. Collective marks are registrable by associations, companies or other organisations.
The same conditions apply for registering collective and certification marks as ordinary trademarks with some exceptions. Marks that serve to designate the geographical origin of goods or services may be registered as collective or certification marks, even if they are normally considered to lack distinctive character. Further, an application for registration of a collective or certification mark must, in addition to the regular requirements, contain details of the conditions under which the mark may be used.
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