Today, court proceedings in Sweden concerning intellectual property (IP) rights are handled by several different lines of courts, which may not be optimal from a legal certainty point of view and with regard to procedural cost effectiveness. A reform of this system is on the way…
… Proceedings are today divided between the General Courts (District Court, Court of Appeal and the Supreme Court), the Administrative Courts (Adminstrative Court, Administrative Court of Appeal and the Supreme Administrative Court) and a special court (Court of Patent Appeals).
Proceedings concerning the eligibility for registration of a patent, trademark or design are handled by the Court of Patent Appeals (PBR) and will be finally decided by the Supreme Administrative Court. However, proceedings concerning the validity of an already registered patent, trademark or design will be brought before the General Courts.
Such a separation in court hierarchy increases the risk of discrepancies in how legal provisions are applied. Another consequence is that the same parties may need to bring parallel proceedings in different courts, which is not only time consuming but also unnecessarily costly.
To illustrate, suppose that a trademark application is opposed against by the holder of an earlier registration. The outcome of the opposition is decided by the Swedish Patent and Registration Office (PRV). That decision can be appealed to the PBR. The decision of the PRB can thereafter be appealed and finally decided by the Supreme Administrative Court (although in practice, IP cases are rarely heard at the Supreme Administrative Court and the last instance will therefore be the PBR). If the applicant for the trademark being opposed, as part of its defense strategy, wishes to challenge the validity of the prior registration, such proceedings would have to be brought before the General Courts.
If all proceedings relating to IP cases were brought at the same court, the appeal against PRV’s decision on the opposition, and the challenge of validity of the opposing trademark, could be brought as a joint action, saving both parties time and money.
These issues were addressed in a debate article by the Swedish Minister of Justice in Svenska Dagbladet, a Swedish newspaper on December 27, 2013. In her view, this division in court hierarchy, which not only relates to IP but also to cases relating to competition law and market law, is unsustainable. The introduction of a new special court will enhance legal security, make proceedings more transparent and increase the opportunities for those who work with these cases to specialize in the area. According to the Minister of Justice, the Swedish government is therefore to propose that a new special jurisdiction court is instituted.
The institution of an IP court can only be considered a welcome addition by all IP right holders. It can also bee seen as a necessary harmonization preparation for the EU Unified Patent Court System to be ratified in Sweden.
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By Louise Davidsson of KIPA