The Swedish Parliament has accepted the Government’s draft. The legislative changes due to the implementation of the Directive will come into force on 1 January 2019. The Government bill regarding the implementation can be accessed here (in Swedish).
The need to represent a mark graphically will be removed. In the future, a trade mark could consist of any sign that has a distinctive character and which can be clearly reproduced in the register of the Swedish Patent and Registration Office. This means that the new Swedish regulation will be given a slightly simpler structure than the provision in the Directive.
The exclusive right to a trade mark will include the ability to stop the transit through Sweden of counterfeit goods and to bring similar customs actions. However, in Sweden, the defendant in such actions will not be criminally liable and the goods will not be forfeited. The reason for this is the following. Counterfeit goods in transit are presumed to infringe a trade mark if the suspected infringer cannot prove that the trade mark lacks protection in the intended destination of the goods. This reversal to the burden of proof departs from the principal under Swedish criminal law that it is for the prosecutor, or the injured party, to prove all the circumstances that must exist for the defendant to be convicted and criminal liability or sanctions imposed. The goods in question could still, however, be destroyed under civil law sanctions.
In Sweden, an opposition can be submitted after the registration of a new trade mark, which differs from the proceedings in, for example, the EUIPO where an opposition is submitted before registration of a trade mark.
After the opposition proceedings have started, the parties will, according to the Government's proposal, have the possibility of requesting a two-month cooling off period during which the parties can negotiate an agreement. The period could be prolonged if both parties request it.
Further, the applicant may request that the opponent demonstrates proof of use of the earlier trade mark on which the opposition is based. The consequence of a lack of proof of use, or proper reasons for non-use, in opposition proceedings would be that the opposition cannot be successful. The idea behind this proposal is that a holder of a trade mark that is not in actual use should not be able to rely on that trade mark in relation to other marks. The possibility of requesting proof of use of an earlier trade mark will also be introduced in infringement and revocation proceedings.
In the future, designations of origin, geographical indications, traditional terms for wine or traditional specialties guaranteed, to the extent that the term is protected under EU law, and plant variety names would be barred from being registered as a trade mark.
A new Act regarding company names will replace the current Trade Names Act. The current Act is more than 40 years old and has been amended several times. The amendments have usually been associated with corresponding amendments in the Trademark Act. However, no editorial and linguistic review of the Trade Names Act has been made. Over time, the legislation has become more and more difficult to interpret. The new Act, which could be translated to the Company Names Act, would have a structure that is more easily accessible and easier to apply and would be drafted in more modern language. The Swedish term "firma" would therefore be replaced by "företagsnamn", which is a more modern and appropriate term. Further, the amendments that will be made to the Trademark Act will, in many cases, be implemented in a similar manner in the new Company Names Act.
Written by Gabriel Lidman, Rebecca Fassihi