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Article 63.2 of the TRIPS Agreement requires Members to notify the laws and regulations made effective by that Member pertaining to the subject matter of the Agreement to the Council for TRIPS in order to assist the Council in its review of the operation of the Agreement.

This page allows you to search Members' questions and answers on notified laws and regulations. You can consult search results on screen, download and print them in Excel format. You can also download individual documents.

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Page 668 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q4/SWE/1 Sweden Japan 12. Is the right holder informed of identities of the importers and consignors when the competent authorities "suspend" the goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights as well as the case where the right holder is informed of identities of the importers and consignors stipulated in Article 57 of the TRIPS Agreement?
The above-mentioned Act does not contain any provisions concerning the information about the identities referred to in the question. Also in this respect the provisions in the European Union Council Regulation apply. In principle, the customs authority shall, at the request of the right-owner, inform him about the person who has submitted the customs declaration and about the receiver, if he is known. Also, the authority shall give the right-owner and other persons who are affected by any of the actions taken a possibility to inspect the goods.
26/08/1998
IP/Q4/SWE/1 Sweden Japan 13. Please explain the measures to protect confidential information in the course of the inspection stipulated in Article 57 of the TRIPS Agreement. And please indicate provisions of laws and ordinances which prescribe such measures.
The general principle under Swedish law is that documents and information in Courts and public authorities – for instance customs authorities – are available for the public unless the Secrecy Act (Act 1980:100) prescribes that, in specified and rather narrowly defined cases, the documents/information shall be kept secret. Chapter 9 of that Act contains a number of provisions on "Secrecy with Regard to Private Persons' Personal and Economic Relations". Thus, for instance, Article 2 of that Chapter provides that secrecy applies to activities relating to customs inspections as regards private persons' personal and economic relations.
26/08/1998
IP/Q4/SWE/1 Sweden Japan 14. Please explain the procedures of detentions and seizures to be ordered by the competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
The procedures referred to in the question are explained in Sweden's response to question 16 of the Checklist of Issues on Enforcement. They imply essentially the following. A right-owner may apply in writing to the customs authority for an action against the import of counterfeit or pirated goods. The application shall contain a sufficiently detailed description of the goods and evidence that the application is actually the right-owners in relation to the goods. Following an examination of the application the customs authority may suspend the release of the goods or retain them. Where the relevant customs authority has not within ten days from the application been informed of the fact that the matter has been referred to the competent authority, the goods shall be released; this period may, however, where necessary be extended by not more than ten days. The customs authority may request the applicant to provide a security in order to guarantee his obligations towards the persons affected by the action and the payment of the costs for the keeping of the goods by the customs authority. The owner, importer or receiver of the goods may request the release of the goods, against providing of a security in order to protect the interests of the right-owner.
26/08/1998
IP/Q4/SWE/1 Sweden Japan 15. Please explain the procedures to appeal against any decisions ordered by the competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
As mentioned above, decisions by the customs authority in matters concerning the suspension of infringing goods may be appealed against to the administrative courts. Detailed provisions in this respect are contained in the Act on Administrative Procedures (Act 1971:291). In principle the proceedings are conducted in written form. The decisions by a County Administrative Court may be appealed against to the Central Administrative Court in order for the matter to be considered by that Court, only on special conditions, for instance that it is of importance for the judicial practice that the matter is reconsidered or where there is a special reason to change the decision by the County Administrative Court. Decisions by the Central Administrative Court may be appealed against to the Supreme Administrative Court, which will, however, only consider the matter if there are very special reasons to reconsider the lower Court's decision.
26/08/1998
IP/Q4/SWE/1 Sweden Japan 16. Please explain the basis for calculating the security or equivalent assurance stipulated in Article 53 of the TRIPS Agreement that the competent authorities may require an applicant when they suspend the release into free circulation.
As mentioned above, the security which the applicant has to provide is decided by the customs authority; its purpose is to guarantee the applicant's obligations towards the persons affected by the action and the payment of the costs for the keeping of the goods by the customs authorities. It is not known whether there are any principles established yet for the calculation of those costs.
26/08/1998
IP/Q4/SWE/1 Sweden Japan 17. Please explain who shall pay the cost of detentions based on Article 51 of the TRIPS Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
As mentioned above, the applicant shall, in the first instance, bear the costs for the detention/storage of the goods. Where the final decision implies that the goods shall be changed, the costs for that change shall be borne by the person who has the right in the goods. Where the final decision implies that the goods shall be destroyed or changed, the applicant has a right to compensation for what he has paid for the keeping of the goods from the person or persons against whom the decision applies.
26/08/1998
IP/Q4/SWE/1 Sweden Japan 18. Please explain what kind of cases are regarded as "the exceptional circumstances" in which the competent authorities may allow re exportation of counterfeit trademark goods stipulated in Article 59 of the TRIPS Agreement.
The legislation contains no provisions on such "exceptional circumstances" as mentioned in Article 59 of the TRIPS Agreement.
26/08/1998
IP/Q4/SWE/1 Sweden Japan 19. Please explain whether the Swedish criminal procedures are consistent with Article 61 of the TRIPS Agreement which requires provisions for a sufficient deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.
In a bill (Bill 1993/94:122, pages 55-56) containing proposals for strengthening the measures against intellectual property infringements the Government stated, inter alia, that "acts that involve infringements of intellectual property rights are to be taken seriously and possibilities must exist to impose severe imprisonment penalties in serious cases". The Government then proposed – and the Parliament accepted – that the maximum penalty be increased from six months to two years for industrial property infringements (formerly, this imprisonment scale had existed only as far as copyright infringements were concerned). This increase of the maximum penalty had also the effect of extending the timeframe for instituting an action in respect of the violation of an intellectual property right and of making the provisions on detention of suspected persons possible. It seems that the Courts more and more tend to adjudicate imprisonment sanctions, at least in more flagrant copyright infringement cases. As an example can be mentioned that the Court of Appeal in Stockholm in a judgement of 26 September 1996, invoked, inter alia, the fact that the piracy activities of a defendant involved several hundreds of copies of children's movies which are commercially interesting for a comparatively long period in an important market and that, consequently great damage had been caused to the right-owners. Moreover, part of the activities had occurred through different shops, a fact that would make possible a wide distribution which was therefore especially dangerous also because the distribution would occur without the public suspecting that the copies were pirated ones. For these reasons the Court found that the penalty should be imprisonment.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for the effective enforcement of the intellectual property rights covered by the Agreement. IP/N/6/SWE/1 describes jurisdiction in relation to copyright, patent, trademark, and industrial design cases. Please state whether the same jurisdiction applies in connection with geographical indications, integrated circuit layout-designs, and rights in undisclosed information and, if not, describe identify the courts that are responsible for infringement actions in relation to those rights.
As regards the protection of integrated circuit layout-designs and as regards rights in undisclosed information, the same the same jurisdiction applies as in the case of copyright and other intellectual property rights. However, a special regime applies as regards geographical indications. Those enjoy protection under the Marketing Act (Act 1995 No. 450). There is a special system of sanctions for violations of that Act. Thus, any person who intentionally or with carelessness contravenes the provisions of the Act may be ordered to pay to the State a "market disruption fee" of between Skr 5 000 and Skr 5 000 000, and, in addition, be subject to prohibition and information orders and may be ordered to pay a compensation for damages, etc. Procedures for the imposition of a market disruption fee may be initiated at the District Court of Stockholm by the Consumer Ombudsman (an official who must be a lawyer and who is appointed by the Government under the Marketing Act to deal with matters relating to marketing practices, etc.). If the Consumer Ombudsman in a particular case decides not to present an application for a market disruption fee, any businessman affected by the marketing and any association of such businessmen may institute such a proceeding. Furthermore, actions relating to prohibition orders (against the continuation of marketing actions which would violate the Act) may be instituted at the Stockholm City Court by the Consumer Ombudsman, by any businessman affected by the marketing activities and any association of consumers, businessmen or wage or salary earners. Interim decisions may be issued by the Court while proceedings are pending. Finally, actions relating to the payment of damages may be instituted either at the Stockholm City Court or at any District Court which is competent under the Code of Judicial Procedure. The Consumer Ombudsman has the authority to order certain such orders himself, primarily such which concern obligations for a businessman to provide information concerning such products and acts where a violation of the Marketing aAct may occur. These decisions by the Ombudsman may be appealed to the Stockholm City Court. Any judgements by the Stockholm City Court or any other District Court may be appealed against to the so-called Market Court. This Court is a specialized court competent in matters concerning the Marketing Act and matters concerning unfair competition or concerning, for instance, product liability and contract terms in consumer relations. The Market Court consists of a President and a Vice President, who must have experience as judges, and five special members who must be economic experts. The Market Court is the final instance in, inter alia, matters relating to the application of the Marketing Act.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 2. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in the courts.
The procedures for initiating enforcement procedures are the same for foreign parties as for Swedish nationals (see, however, the reply to question 3).
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 3. Please identify any requirement that a foreign party must meet to initiate a proceeding in the courts that is not required of a national or resident of Sweden and cite the legal authorities providing for those differences.
The Act (1980 No. 307) on the Duty for Foreign Claimants to Post a Bond for Litigation Costs contains provisions on what foreign claimants have to comply with in this respect. Basically, where a foreign national not having his residence in Sweden or a foreign legal entity wants to initiate an action at a Swedish court against a Swedish national or a Swedish legal entity, he must, upon request by the defendant, post a bond for the litigation costs which he may be ordered to pay under a final decision in the case. Then there are a number of detailed provisions about the waiver of that duty (for instance in relation to persons from the European Economic Area), about the nature of the bond, etc. which are, however, too detailed to be dealt with here.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 4. Please explain any provisions in the enforcement system in Sweden that ensure expeditious remedies. In addition, please explain what provisions are available to prevent deliberate delays by the parties to a proceeding and indicate the circumstances in which such provisions will be applied.
There are a number of provisions in the Swedish Code of Judicial Procedure which aim at securing the availability of expeditious remedies. For instance, Chapter 18, Article 6, of the Code makes it possible to take certain actions against any party who, through the failure to appear or to comply with a court order, or the presentation of a claim or defence that he knew or should have known to be without merit, or carelessness or oversight in other respects, has caused adjournment of the proceedings or has otherwise caused expenses for the adverse party. Such a party shall reimburse the adverse party for such expenses regardless of how costs in the case in general are to be distributed. Also, Article 7 in the same Chapter contains a provision on the liability of an attorney in case he has caused expenses through having initiated an action without provocation from his adversary or has otherwise deliberately or negligently caused unnecessary litigation. In such a case, the Court may impose joint liability for costs upon the party and his representative. Furthermore, Chapter 42, Article 15 of the Code gives the Court the authority to order a party to determine finally his claims and state the evidence that he wants to invoke, where this is called for taking into account the way in which the party has acted earlier in the proceedings. After the expiry of the time within which such an order has to be complied with, the party in question must not invoke any new circumstances or invoke any new evidence where he can not make it plausible that there was a valid excuse for his non-action in this respect. Furthermore, the Code contains provisions on so called "Default Judgement" which may be pronounced in cases amenable to out-of-court settlement. Such a judgement may be entered where a party has been directed to appear before the Court with the consequence that otherwise a default judgement may be entered against him and he nevertheless does not appear and, furthermore, that the appearing party requests such a judgement.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 5. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably be in writing, the better to determine the reasoning on which the decision is based. Please state whether judges must render their decisions in writing and cite the legal authorities requiring such written opinions.
Obviously, any judgements or decisions by judges have to be rendered in writing, inter alia, to make appeals possible. Thus, Chapter 17, Article 7 prescribes that "any judgements shall be in writing and contain …".
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 6. Article 42 requires that defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures for notifying defending parties regarding proceedings that have been initiated against them, indicate the information provided regarding the proceeding and cite the legal authorities establishing these procedures.
The general provisions on applications for summons and on the calling on the defendant to answer the claims in such applications are contained in Chapter 42, Articles 1 to 6 of the Code on Judicial Procedure (as regards civil cases) and in Chapter 45, Articles 1 to 9 of the same Code (as regards penal proceedings). These provisions apply in intellectual property cases as well as in other cases. Dealing here only with civil cases and leaving details aside, the provisions prescribe basically the following. Anyone who desires the issuance of a summons shall file a written application in this respect to the competent court. The application shall be signed by the plaintiff or his attorney and shall contain indications about the circumstances upon which the action is founded, the demand for relief, the documentary evidence offered and the circumstances which make the court competent. Where the summons application fails to comply with the relevant requirements or is otherwise incomplete, the Court shall direct the plaintiff to cure the defect. Where such directives are not complied with, the result is generally that the application may be dismissed. If the application is not dismissed, the Court shall issue a summons calling upon the defendant to answer the claim. The summons together with the summons application and the documents annexed thereto (for instance evidence) shall be served upon the defendant. There are no explicit time-limits within which the Court has to serve that summons in civil cases. Neither are there, generally speaking, such time-limits in criminal cases; however, if the defendant is under arrest or detention, there are time-limits within which the prosecutor has to file an application for summons in the case. Those time-limits differ somewhat depending on the situation and the seriousness of the case. It would be too complicated to go into details on these issues here, more so as these situations do not occur frequently in intellectual property cases.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 7. Article 43.2 provides that, in the event a party refuses to provide information ordered by judicial officials, those officials may be authorized to make preliminary and final determinations adverse to that party. IP/N/6/SWE/1 states that fines can be imposed in the event a person fails to produce a document ordered by the court. May judges order parties to provide information not contained in a document and have the authority to make determinations adverse to the party refusing to provide information or documents?
In addition to the provisions on documentary evidence contained in Chapter 38 of the Code of Judicial Procedure, that Code also contains provisions on the hearing of witnesses (Chapter 36), of parties under truth affirmation (Chapter 37), or experts (Chapter 40) and on examination of objects (Chapter 39). Also, a special provision in the Code deals with the evidentiary value to be given to a party's behaviour in the proceedings. In this respect, Chapter 35, Article 4, prescribes that if a party fails to respond to an order by a court to appear before it or to perform any other procedural act, or refuses to answer a question relevant to the investigation, the Court shall determine, in view of all the relevant circumstances, the evidentiary significance of the party's behaviour. Generally speaking, the Court shall, in accordance with what its conscience dictates, determine what has been proved in the case after evaluating everything that has occurred in the proceedings (Chapter 35, Article 1, of the Code of Judicial Procedure). This is the so-called "Principle of Free Evaluation of Evidence" upon which the Swedish Court procedures, and legal system in general, are based.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 8. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or use by third parties authorized by the government, limiting the remedy for infringement to payment of adequate remuneration as provided in Article 31(h). Please describe any such limitations on remedies in the laws of Sweden and cite the legal authorities providing for those limitations.
There are no such limitations on remedies as mentioned in the question.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 9. Article 50.1 require that judicial authorities have the authority to order prompt and effective provisional remedies to preserve relevant evidence in regard to an alleged infringement. IP/N/6/SWE/1 describes the authority which exists to prevent further infringement or to preserve assets that might be needed to satisfy a judgement. Please identify any provisional measures available to preserve relevant evidence in regard to an alleged infringement and cite the relevant legal authority.
Provisions on orders for the preservation of evidence are contained in various provisions in the Code of Judicial Procedure. Thus, Chapter 27, Article 1, of that Code prescribes, as regards criminal proceedings: "Objects which reasonable can be assumed to be of importance for the investigation of an offence, or to have been taken from a person by an offence or to be subject to forfeiture by reason of an offence may be seized" ("tagna i beslag"); according to Article 5 of the same Chapter, Courts may, if delay entails risks, issue such seizure orders immediately to remain effective until otherwise ordered. In addition to these provisions also Chapter 15 of the same Code contains provisions on general provisional measures in civil cases. These have been elaborated on in some detail in Sweden's responses to the Checklist of Issues on Enforcement submitted by the Ministry of Justice in April 1996. Such measures may also, in practice, serve the purpose of securing evidence. Furthermore, Chapter 38, Article 2, of the Code (which provision has general application in all types of cases) prescribes that "anyone possessing a document that can be assumed to be of importance as evidence is obliged to produce it" and Article 4 of the same Chapter prescribes that "when anyone is under an obligation to produce a document as evidence, the Court may direct him to produce it". Essentially, the same provisions apply as regards examination of objects etc., provided for in Chapter 39 of the Code. All these provisions imply that provisional measures for the preservation of evidence are available under Swedish procedural law. In addition to what has been said now, also the application of some provisions in the intellectual property laws may have the effect of securing evidence in a particular case. Thus, for instance, Article 41 of the Trademark Act and Article 55 of the Copyright Act contain provisions on the seizure, also on a provisional basis of goods or objects in respect of which an infringement may have occurred. Such seized goods or objects may certainly also be of importance for evidentiary purposes.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America [Follow-up question from the US] Sweden's response to question 9 from the US describes the provisional measures which are available under Swedish law to preserve relevant evidence. Please clarify whether any of these measures can be taken without notice to the other party.
Such orders for the preservation of evidence as are mentioned in the reply to question 9 from the US may, if a delay entails risks, be issued immediately, without notice to the other party, to remain effective until otherwise ordered.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 10. Article 50.3 requires that judicial authorities be authorized to require an applicant to provide evidence to establish with a sufficient degree of certainty that the applicant is the right holder and that infringement has occurred or is imminent. With respect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, please describe the evidence required by right holders to establish ownership.
There are no formal provisions on the evidence required for the holder of an intellectual property right to establish ownership of the right. This follows naturally from, for instance, the provisions on the contents of an application for summons (where the applicant has to state, inter alia, the circumstances upon which the claim is based); these circumstances would, if properly presented, constitute sufficient reason for the Court to assume that the status of the applicant in this respect is what he claims it to be. However, as regards the ownership of the rights in a literary or artistic work Article 7, first paragraph of the Copyright Act (1960 No. 729) contains a provision to the effect that "a person whose name or generally known pseudonym or signature appears in the usual manner on copies of the work or when it is made available to the public, shall, in the absence of proof to the contrary, be deemed to be its author". This thus establishes a presumption of authorship and consequently also on the right to file an action for a provisional measure.
26/08/1998
IP/Q4/SWE/1 Sweden United States of America 11. Article 50.4 requires that parties be notified when provisional measures have been adopted inaudita altera parte. Please describe briefly the procedures followed by each authority able to adopt such measures for notifying affected parties and state the time within which such notice must take place.
As mentioned in Sweden's responses to the Checklist of Issues on Enforcement6 provisional measures are available under Swedish law inaudita altera parte in the form of interlocutory injunctions (under special provisions in each one of the intellectual property laws), in the form of general provisional measures in civil cases (Chapter 15, Article 3 of the Code on Judicial Procedure) and in the form of provisional measures and security measures (detention or arrest, provisional attachment, etc.) in criminal cases. From general principles in procedural law in Sweden follows that when an application for a provisional measure is filed and the Court finds it necessary to grant inaudita altera parte the measure applied, the application and the decision on the grant of that measure are served upon the defendant at the same time; the defendant will then have the possibility to request a review of the action taken. It also follows from general principles that cases relating to provisional measures are to be dealt with by the Courts without delay. In established practice this will occur within days. In cases relating to documents or objects there are, however, no determined time-limits in this respect.
26/08/1998

Page 668 of 677   |   Number of documents : 13533

 
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