The L’Oréal case has not yet been cited by Swedish Courts in trade mark matters, but a principle similar to the free-riding principle has for many years been applied by the Swedish Market Court on matters regarding unfair marketing. According to this Market Court principle, a third party may not free-ride on the “attention value” of a brand regardless of whether there is any risk of confusion among the public or not concerning the commercial origin.
The Swedish unfair marketing legislation has for many years included protection for the reputation of a company and its products, but the principle has over time widened its scope starting in 1999 when the Market Court delivered its decision in the so called “Robinson” case. “Robinson” is the Swedish version of the popular reality TV show “Survivor” where a number of contestants are put on an isolated island to compete. OLW, a Swedish producer of snacks, launched its new product “Robinson potato chips”, during a period when “Robinson” was broadcasted. SVT, the Swedish public television which broadcasted “Robinson”, filed a complaint with the Market Court and argued that OLW took unfair advantage of the TV show’s reputation. OLW argued that “Robinson” was a reference to the well-known novel by Daniel Defoe and not to the TV show. In its decision, the Market Court stated that the popularity of the TV show meant that most people associated the word Robinson with the TV show rather than the novel, and that OLW was free-riding the “attention value” that SVT and the TV show had created amongst the consumers. The consumers were not considered misled concerning the commercial origin, due to the difference in products offered by SVT and OLW. As the attention value for a TV show is limited in time to the periods during which the TV show is broadcasted, the Market Court prohibited OLW to use the marketing in question for the time when the TV show is broadcasted, and one year thereafter.
For the above principle to apply, the existence of a reputation or “attention value” for the brand owner or its products must first be established, and the second step is to examine whether an unfair use of this “attention value” has taken place. It must be shown that the “attention value” is associated with the specific brand owner. It does not matter whether the involved parties are competitors or not.
Market Court Decision No. 1999:21 (Robinson)