Är det en fördel att vara känd? - en analys av omfattningen av det utökade skyddet för kända varumärken
Sammanfattning: Trade marks have become increasingly important in society these days. Hence, it is also crucial to protect them from infringement. The infringement provision in the Swedish Trade Mark Act, Chapter 1, Article 10, Paragraph 1-2, provides a basic protection for all trade marks against the use of a younger identical or similar sign for goods or services of the same or similar kinds. However, there is also a possibility of an extended protection for well-known trade marks, since it is considered to be easier for others to take advantage of or injury trade marks that are well-known. The extended protection is provided in the Trade Mark Act, Chapter 1, Article 10, Paragraph 3, and it protects trade marks against use of a later identical or similar sign, even for goods or services of other kinds. Such protection is undoubtedly very beneficial for trade mark owners who have made huge investments in their trade marks. Hence, it is essential to examine the extent of this extended protection. This thesis discusses the purpose, the applicability and the predictability of the extended protection, and whether Swedish law is consistent with the principles that have been laid out in EU law. The purpose is to describe the applicability of the provision and to identify many factors that create uncertainties in the legal position. First, what creates an uncertainty is the fact that the European Court of Justice has created a function theory without discussing it in relation to the extended protection. This makes the extent of the exclusive rights become unclear in general. Moreover, court decisions are difficult to predict, since they are determined by a global assessment of the circumstances of each case. In addition, the requirements for proof have in practice been both high and somewhat contradictory. There are also many prerequisites that require proof. Regarding the Swedish practice, it seems to indeed comply with EU law, but such a definitive conclusion cannot be made since there are few Swedish judgements that discuss the extended protection in detail. Overall, it can be said that clarifications are necessary mainly at the EU legal level, but also in Swedish practice, in order to clarify the legal position.
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