Varumärkesanvändning – En analys av rekvisiten i 1 kap. 10 § 1 st. 1 p. varumärkeslagen

Sammanfattning: The meaning of an exclusive right is that a trademark owner has the right to prevent a third party from using the owner’s trademark. The exclusive right only applies if there is a trademark use, which means that the necessary requirements “use”, “for goods or services” and “in the course of trade” must be met. Since trademark law only gives examples of which actions can be opposed, the ECJ’s statements and application therefore becomes important. Regarding the requirement “use” it has been established that third parties must use the trade mark in their own marketing. The ECJ’s has also developed two criteria, active action and control, which needs to be met in order for the requirement to be met. However, there is some confusion in regards to the criteria and the use of these in relation to the requirement. There has also been a discussion about the concepts of rebranding and debranding in connection with “use”, where it is still unclear whether the concepts are included in the requirement. The requirement “in the course of trade” has been widely interpreted by the ECJ’s and is fulfilled when there is a profit motive. Usually, there is no further investigation in regards to the requirement except in certain cases, for example in marketing and import decisions. It also appears that the difficult divide between private use and use in the course of trade have resulted in some uncertainties. The requirement “for goods or services” has also been widely interpreted by the ECJ’s. The court conveyed in its statement that it is important for an impression that a connection presides between the protected trademark and the good of the third party. However, the court has changed its judgment a number of times over the years, which has made it unclear how the requirement should be applied. The court has also focused on the trademarks’ functions and how these need to be damaged in order for an unauthorized use of the trademark to exist. This fourth requirement has also created uncertainty as neither the law, doctrine nor case law has clearly defined the trademarks’ functions and what is required for damage to exist. The function of origin appears to be the most fundamental function of the trademark, but in addition to this there are constantly new functions which the court considers to be legally relevant.