The above-mentioned Regulation applied by Sweden provides that the customs authority concerned shall give the right-owner and other persons who are affected by any of the actions taken, a possibility to inspect the goods. Also in this case Swedish law does not contain any specific criteria on the way in which right-holders are to be provided an opportunity to inspect suspect goods that have been detained by customs authorities.

There are no explicit provision on de minimis imports in Swedish law (except the provisions on tax-free importation of duty-free goods which are hardly of any interest in this context).

In a bill (Bill 1993/94:122, pages 55-56) containing proposals for strengthening the measures against intellectual property infringements (which proposals were adopted by the Parliament) 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 sanction, at least in more flagrant copyright infringement cases. As an example, it can be mentioned that the Court of Appear 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 printed ones. For these reasons the Court found that the penalty should be imprisonment.

It has proved to be extremely difficult to obtain any exact and reliable information concerning the number of intellectual property cases in the courts and outright impossible to obtain such information broken down according to types of rights and types of cases, the reason being that no such breakdown exists in the statistical information available at our central court administration. The information below is, therefore, based on personal inquiries at some courts which are of special importance in this respect. The information relates only to civil cases; no specific information is available on the number of criminal cases, the reason being that those which concern intellectual property are not singled out in the statistics and, furthermore, intellectual property violations frequently are linked to other types of offences/crimes and thus disappear in the statistics. Generally speaking, the impression of the authorities is that the number of both civil and criminal cases has been steadily increasing during the last ten years. As regards the proceedings in the ordinary courts, civil litigation in patent cases is concentrated in the Stockholm City Court and in practice also most civil litigation occurs in that Court. According to the information provided by the Court, 31 cases have been filed in the course of 1996 and 20 cases between 1 January 1997 and 30 November 1997. As regards administrative proceedings, which are perhaps of less interest from an enforcement point of view, the normal route is that rejections of applications for industrial property rights may be appealed against to the Patent Court (which is the second instance) and from there to the Supreme Administrative Court. Each year about 100 patent cases go to the Patent Court and about 700 cases relating to other industrial property rights, primarily trademark rights. The Supreme Administrative Court received 95 appeals from the Patent Court in 1996 and 61 cases during the first 11 months of 1997.

Please see the reply to follow-up question 1.

Decisions on the suspension of the release into free circulation of goods as mentioned in Article 51 of the TRIPS Agreement are taken by the National Customs Board ("Generaltullstyrelsen") which is the central administrative customs authority, whose decisions may be appealed against to the general administrative courts (the County Administrative Courts, the Central Administrative Court and the Supreme Administrative Court). The question of whether an infringement has actually taken place and the measures to be taken in case such an infringement has actually occurred, is decided by the competent ordinary Court which also has the power to issue an interim decision to the effect that the suspension shall be terminated.

As mentioned in the reply to question 1, decisions on the merits of the case are taken by the ordinary Courts.

As indicated in Sweden's response to question 5 of the Checklist of Issues on Enforcement there are provisions in the various intellectual property acts which relate to the destruction and disposal, etc. of infringing material according to decisions by the Courts in infringement cases. Those decisions may also involve seizure, also on a preliminary basis, of such infringing material.

The national legislation in force (Act 1994:1552 on Customs Control of Trademark Infringements, which contains provisions complementary to those in the European Union Council Regulation No. 3295/94) contains no provisions on the term within which the applicant shall be informed whether the application has been accepted or not. From the implementing regulations to that European Union Regulation (Commission Regulation No. 1367/95) follows, however, that such information shall be given immediately, and this is obviously applied also at the Swedish national level.

The Swedish Act mentioned in the reply to question 4 does not contain indications concerning the effective term of the application. In internal customs regulations, however, a period of one year is prescribed in this respect.

The Act mentioned in the reply to question 4 gives the Government the authority to prescribe fees in relation to applications as mentioned in the question.

The legislative provisions referred to in the question are of two types. One consists of the provisions which are contained in the various intellectual property acts and which determine the criminal and civil liability for infringements and which obviously are applied by the Courts in order to decide the case on its merits. The other type consists of provisions in the Code of Judicial Procedure and which describe the various steps in the criminal or civil proceedings respectively. Generally speaking such a procedure is initiated through an application for summons of the defendant to the Court. 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. Thereupon the Court hears the case, in civil cases usually one or more preliminary hearings followed by the main hearing. Then the Court issues its judgement which may normally be appealed to the Court of Appeal and, in cases of particular importance, to the Supreme Court.

As mentioned above, the decisions on the merits of the case are taken by the ordinary Courts, whose decisions are to be implemented by the customs authority. The Act mentioned above specifically states that the customs authority which keeps the goods in question has to implement the Court's decision concerning release, change or destruction of the goods. Consequently, where the Court finds that there is no infringement, it will order the release of the goods, and, as mentioned above, such decisions may be issued also on a preliminary basis.

Questions 9 to 11 concern the liability of the competent authorities towards the right-owners or the importers in case of failure to suspend the release of infringing goods or the suspension of release of non-infringing goods, respectively. As mentioned above, decisions on the suspension of the release of infringing goods are taken by the National Customs Board and then the respective local customs authority has to implement those decisions. When taking such decisions the authorities obviously have to apply the law and to make their own judgement on the merits of the case as far as the suspension issue is concerned. Failure to take or implement such decisions may, depending on the circumstances, result in criminal liability for the officials concerned, an obligation to pay damages to the applicant, etc., like in other cases where authorities fail in one way or another to act according to what the law prescribes. It should be underlined that the decision on the question of whether an infringement actually has occurred and which measures to take with the goods is a matter for the Courts and not for the administrative authorities and the decision of the Courts (concerning the release, change or destruction of the goods) has then to be implemented by the customs authorities. The above-mentioned Act prescribes that the storage of the goods whose suspension has been decided by the customs authorities has to be carried out at the expense of the applicant. Where a final decision is taken to the effect that the goods shall be destroyed or that other measures shall be taken as regards the goods, the applicant has a right to compensation from the person or persons against whom the decision has effect.

Please see the reply to question 9.

Please see the reply to question 9.

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.

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.

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.

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.