Skydda förpackningen - En uppsats om förpackningsutstyrselskyddet inom varumärkesrätten och marknadsrätten

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: Through research in legal acts, legislative history, judgments, and doctrine this paper presents the requirements protection for product trough trademark laws and through the Swedish Marketing Act. The thesis also raises the matter of the complication of legal force which might arise from the new possibility of petitioning for another product packaging to be banned from the market and action for damages with regards to trademark legislation and Swedish Marketing Act in the same trial. Judgments in the respective legal field makes it clear that elements such as word- or figurative marks, color and shapes are important when examining distinctiveness and risk of confusion. The examination of distinctiveness of a product packaging is based on the general impression of the product considering the different elements. Risk of confusion must be assessed when a trademark is used without consent of the trademark proprietor or to stop a registration of a similar sign. To assess if a product packaging is unlawful in its close resemblance to another packaging in relation to the 14 § Swedish Marketing Act there are requirements for distinctiveness, reputation and risk of confusion. The Swedish Marketing Court previously never assessed trademark criteria when deciding if a packaging is unlawful in relation to the Swedish Marketing Act. However, in recent judgments trademark criteria has been a part of the assessment. There remain differences between the two legislations such as the purpose of the legislation and how the assessment of the criteria is made. The ability to petition for the removal of a competitor’s product packaging in the same litigation also raises the question of legal force. Previously a judgment based on trademark legislation would not hinder a new litigation based on the Swedish Marketing Act. In the government bill leading up to the new court they express that legal force should not hinder the possibility of two different litigations. With requirements set out in doctrine in procedural law legal force might be applicable. This should be clarified by the courts in the future.

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