Varumärkesrättsliga fel, kan innebära marknadsrättsliga rätt - Samspelet mellan varumärkes- och marknadsrätten – med fokus på renommésnyltning

Sammanfattning: It is not uncommon that different judicial areas can be administered at the same time. This is the case regarding trademark law and law of marketing. The main purpose with the law of marketing is to serve as an extended protection when the requirements within trademark law are not fulfilled. Since these two judicial areas run alongside each other important aspects within trademark law and law of marketing are highlighted to investigate uncertain legal questions. The trademark law is one of few fully harmonized areas of law within the European Union. The demands that need to be fulfilled for a trademark to be registered includes the earlier demand of graphical representation combined with the still relevant criteria that a sign can be distinguished from other undertakings. The so-called unconventional trademarks, which must be perceived with one of the five human senses, have had difficulties meeting the requirement of graphical representation compered to common conventional trademarks. However, the demand of graphical representation was rescinded the 1st of October 2017. The new definition in the directive allows tools such as general technology to reproduce a trademark. The effect that this change of requirement will have is uncertain, but since general technology is a more widespread definition compared to graphical representation, it may be argued for that this change will have a positive effect for the part that wishes to register an unconventional trademark. The constantly changing trademark law has resulted in that different questions have surfaced regarding how and when a trademark can be protected. The Court of Justice of the European Union has in important case law, without any motivation in particular, introduced several functions that can be protected in excess of the original function. However, the practical effect has in many aspects proven to be the same as before the functions were introduced. The holders of trademarks with a reputation are often facing the problem that less established companies are trying to free-ride on these well known companies’ trademarks. This phenomenon goes under the term passing-off which is regulated in 5 § Marknadsföringslagen, (2008:486), MFL, (the general clause). Consequently, there is no substantially section of law regarding passing-off as an infringement and the only way to deal with passing-off is through the general clause. The lack of a legal regulation of passing-off as a phenomenon has resulted in an insufficient law of marketing. Regardless if passing-off should have its own legal regulation, passing-off includes far to high prerequisites compared to other infringement within the illegal marketing. A statement that is strengthened due to the fact that passing-off can be used as sole grounds for action and must not be combined with other deceiving marketing. It is possible for business owners to succeed older business owners repute due to intense marketing, resulting in a higher value of attention for the new undertaking compared to the original trademark. Since case law indicates that such succession of repute is possible one may wonder if this should be legally acceptable. Based on all evaluated questions, the thesis ends in the same way as it began, with grounds in the similarities between trademark law and law of marketing. These similarities constitute the core when answering if the legal trial of marketing is done free-standing from the legal trial of trademark, based on the likelihood of confusion, reputation, passing-off within well known concepts and based on the application of the principle of illegality.