The Swedish Market Court (“MD”) has in two recent decisions (MD 2013:13 and MD 2013:14) ruled on the issue of parent company liability for subsidiary’s marketing. In one of the cases (MD 2013:13), Bayer Aktiebolag (“Bayer”) brought action against Bringwell AB (“Bringwell”) as well as its parent company and CEO, claiming that also they were liable for Bringwell’s marketing. MD found that the parent company contributed to its subsidiary’s marketing based on, inter alia, that both companies partly had the same officers and that the sender of all the relevant advertisements was only indicated by trademarks owned by the parent company. Since the parent company was aware of, and did not question, how the brand was being used by its subsidiary, it was concluded that it could be held liable in complicity for its subsidiary’s marketing. Regarding the CEO, who also was the sole director of the subsidiary, MD held that unless it is proven that the person substantially contributed or otherwise had an ultimate responsibility for the marketing, there is no cause of action for private individual liability. In the other case (MD 2013:14), Stömma Turism och Sjöfart AB brought action against Stockholm Info AB regarding its subsidiary’s marketing (the subsidiary having been liquidated at the time of the action). MD found that the parent company had contributed significantly to the subsidiary’s marketing and therefore could be held responsible in complicity. MD recalled that an overall assessment of the parent company’s involvement in the marketing has to take place in such cases. The status as parent company is in itself not sufficient for liability.
MD has also recently ruled in two cases concerning what constitutes taking unfair advantage of reputation (MD 2013:11 and MD 2013:12), relevant to matters of imitation. In one of the cases (MD 2013:12), Plaza Publishing Group AB (“Plaza”) brought action against its competitor Vårt Nya Förlag Scandinavian AB, claiming that the marketing of their magazine with the title Magasin Kvinna (literarily “Magazine Woman”) was a deliberate (and misleading) imitation of Plaza’s magazine Plaza Kvinna (literarily “Plaza Woman”) and due to the imitation also taking unfair advantage of Plaza’s reputation. MD dismissed Plaza’s action, holding that an injunction against deliberate or misleading imitations requires that the product claimed to be imitated possess individual character. MD found the word “Kvinna” (“Woman”) to be descriptive and concluded that it lacked both originality and acquired commercial individual character. MD further held that a prerequisite for unfair advantage of reputation is that what is taken advantage of is well known by the market and associated with the reputation of another business. Since Plaza could not show that buyers of magazines associated the word “Kvinna” (“Woman”) or the logotype used with Plaza or its magazine, MD found that the copying did not constitute taking an unfair advantage of reputation. The other case (MD 2013:11), between JAFO AB (“JAFO”) and Aktiebolaget Falu Plast (“Falu Plast”), included questions of misleading imitation and taking unfair advantage of reputation with regard to marketing of floor drain rings. MD found that the floor drain rings design was mainly functional and that JAFO had not shown that their design was of individual character. Because of this fact, any copying did not constitute misleading imitation or unfair advantage of reputation.