Identitetsskydd för näringsverksamhet - Närmare om några rättsliga möjligheter för näringsidkare att skydda sig mot konkurrenter som åker snålskjuts
Sammanfattning: Branding is the term used to denote the work being done to build strong brands. Branding has increasingly come to focus on building an identity and a brand image around businesses to create competitive advantages. The literature emphasizes the importance of the selected identity to be communicated through all communication channels and interfaces available. Thus, branding can include everything from how staff dresses, how stores are decorated and how the administration is handled. Today the work of creating an identity is often made by designing whole concepts, where all parts interact to create the identity and the image pursued. Developing a successful concept can be very resource-intensive. When someone succeeds to create a successful concept, it may therefore be tempting for competitors to imitate that concept. Such free riders are obviously a problem for the one who has developed the concept. With the background of this issue, this thesis aims to investigate two legal tools that can be used by a trader who wants to protect its business concept. The selected tools are the protection against passing off (sv. renommésnyltning) and the protection of trade secrets as provided in the 1990 Trade Secrets Act. These legal frameworks have been selected for their potential to protect whole concepts. Initially the limitations associated with intellectual property protection are investigated. The conclusion in this part is that intellectual property rights may indeed be an effective protection against imitation, if they are used in combination with each other. However, the protection is restricted to individual items and the connecting idea or the ideas behind the concept cannot be protected. The protection against passing off is found to have great potential to be efficient in concept protection. However, there are many different factors that may cause difficulties for a trader who wishes to act against another trader and its imitations. For protection against passing off, it is required that what is imitated is known in the market and thus elements that are not visible externally cannot be protected. Furthermore, it may be difficult to show the goodwill required for all the components of the concept. The trade secret protection is flexible in its design and can cover most components that a trader may wish to protect. The protection consists of protection against unwarranted infringements of trade secrets. Only information that is kept secret can be protected. Therefore the trade secret protection has the greatest potential to be used as a concept protection prior to the launch of a new concept. The biggest problem with using the trade secret protection to protect a concept is the difficulties concerning evidence. All the forms of protection subject to this thesis require that traders work strategically in order to make the legal protections as efficient as possible. There is an on-going work of harmonization concerning the protection of trade secrets in the EU. Currently there is a draft directive of the European Parliament. This proposal contains a number of provisions that could strengthen a trader’s ability to protect themselves against competitors that use trade secret information. However, the positive effects that might result from these regulations risk being withheld as a consequence of the fact that the proposed directive does not contain any rules on the preservation of evidence.
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