Den straffrättsliga bedömningen av varumärkesintrång - en utredning av vissa omständigheter vid påföljdsbestämningen

Sammanfattning: Counterfeiting has long been considered a rather harmless phenomenon. However, counterfeiting has evolved from a small-scale activity into one on an industrial scale. It has come to pose a serious threat, not only to the interests of the right holder, but to the consumers and the society as a whole. Counterfeit products are no longer just poorly crafted copies of sunglasses; today they are professionally designed copies of a wide variety of products, which for the normal consumer may appear identical to the genuine goods. The Swedish Customs, as well as international organizations such as the World Customs Organization, have noticed an increase of counterfeit products; not least those that pose a serious risk to the health and safety of consumers, such as counterfeit medicines, vehicle parts, cosmetics and skincare products. The increase in trade with counterfeit products has given increased actuality to the issue of the penalties connected to such trademark infringements (fines or imprisonment), especially as regards products that may be harmful to a third party. In this thesis I have examined if such risks are, or should be, taken into account in the assessment of the penal value in connection with trademark infringements. I have also examined the question of “Artbrott”, that is whether a trademark infringement under the Swedish Trade Mark Act is a crime of such nature that there is a presumption for imprisonment, rather than the general rule, which is that the Court should choose a milder form of penalty. The punishment for trademark infringements, committed wilfully or with gross negligence, shall be decided according to the provisions of the Swedish Criminal Code. The first step for the Court in the process of deciding the appropriate punishment for the individual crime is to determine the penal value within the range of the punishment as stated in Chapter 8, Article 1 of the Swedish Trade Mark Act. This article states that trademark infringement, committed wilfully or with gross negligence, can be punished under criminal law by fines or imprisonment for not more than two years. The penal value is to be decided in accordance with the provisions set forth in Chapter 29, Article 1-3 of the Swedish Criminal Code. When assessing the penal value, special consideration shall be given to the damage, wrong or danger occasioned by the criminal act to the interests protected by the criminal law in question. Accordingly, whether a criminal act should result in imprisonment or not depends to a large extent on the Court’s determination of the penal value of the crime in question. If the penal value exceeds one year of imprisonment, the Court normally selects imprisonment as a penalty. If the penal value is less than one year, imprisonment may still be selected if the accused has a previous criminal record or this is motivated by the nature of the crime. This follows from Chapter 30, Article 4 of the Swedish Criminal Code. The nature of the crime may thus result in imprisonment in spite of the fact that this is not motivated by the penal value of the crime or by previous criminal activities, and vice versa. My conclusion after having examined whether risks relating to third parties should be considered in the assessment of the penal value is that the legal situation is uncertain. The limited case law on this topic is not coherent. In certain cases, the Court has considered risks relating to third parties, most often as a reason for a stricter penalty, and in exceptional cases also in connection with the assessment of the nature of the crime (Sw. brottets art). In other cases the Court has explicitly stated that these circumstances are not relevant for the penal assessment in connection with trademark infringements. However, my opinion is that the risks for third parties in connection with trademark infringements should be considered as a reason for a higher penalty, mainly for two reasons. The first reason is that the damage to the trademark, and therefore to the trademark holder, is greater if the counterfeit product risks harming the consumer. Upon purchasing a product, which inherently holds a certain risk when used, such as pharmaceuticals or spare parts, it is critical that the consumer has full confidence in the trademark. Should it be publicly known that there are counterfeits in circulation of a certain product it is very likely that the consumer will select another brand. Should, in addition, a situation occur where a consumer actually is harmed by a counterfeit, trademark-infringing product, there is a very real risk that the reputation of the trademark is damaged to an extent which cannot be repaired. The second reason is that counterfeit products violate one of the most basic functions of a trademark, the so-called guarantee function. The guarantee function is a pledge to the consumer that the product or service in question has the features and the quality promised, and that it is produced by a trader who takes responsibility for this. Accordingly, the Swedish Trademark Act should not only protect the trademark holders, but also to a certain extent the consumers, from counterfeit products with inherent risks that they have not had reason to expect. In sum, counterfeits violate both the trademark holders and the consumers legally protected interests. This is especially true for products that carry a risk for the health and safety of third parties. As regards the question whether a criminal act should be considered an “Artbrott” under the Swedish Trademark Act, no particular guidance can be found in the text of the law, legislative history or case law. The courts seem generally reluctant to characterize trademark infringements as an Artbrott, but the case law is neither coherent nor clear. In the cases I have examined, the courts have reasoned only briefly, and occasionally inconsistently, regarding this issue. However, my own conclusion is that a number of the circumstances that in other areas cause a crime to be considered an Artbrott also are met in connection with criminal trademark infringements, and that, accordingly, these crimes should be considered Artbrott. It remains to be seen whether the Supreme Court agrees with my conclusions above in its upcoming decision of “Kullager-fallet”. Regardless, such decision will hopefully speak to and change the uncertain legal situation that exists in Sweden today on whether risks for third parties shall be considered in the assessment of the penal value of trademark infringements, and whether a trademark crime is an Artbrott. A clarification of these issues is of great importance for the future application of law, and, not least, for trademark holders, consumers, and for society as a whole.