World
Intellectual Property - IP Laws - Sweden
Calculation
of period for non-use of trade marks:
According
to Section 25a of the Swedish Trade Mark Act (STA), a trade mark
registration can be cancelled/revoked if the trade mark has not
been genuinely used in Sweden for a period of five years after the
registration period was concluded within two months of its registration.
On July
26, 2001 Blockbuster Inc (BI) filed a cancellation action in the
Stockholm District Court against Urban Stamming Marketing (USM)
for cancellation of a Swedish trade mark registration for Blockbuster
which USM held. BI argued that since USM had not used the
trademark for the services for which it was registered on 23 February
1996 for a consecutive period of five years, the registration should
be cancelled.
Blockbuster
was registered on 23 February 1996 and BI filed an opposition against
the registration much later than the stipulated period of two months,
the appeal of BI was dismissed on November 28 1996. However,
BI did not appeal and the decision gained legal force on January
29, 1997.
The District
Court held that the registration procedure was not concluded until
after either the time limit for opposing a trade mark registration
(two months) has expired or opposition proceedings have been concluded.
In this case the opposition was rejected on November 28, 1996 and
the decision became legally binding in January 1997. Consequently,
when the cancellation proceedings were initiated on July 26, 2001,
the five year period stipulated by law had not yet expired. The
Court dismissed the appeal of BI stating that it was not a fact
but a point of law.
When BI
appealed against the ruling of the District Court in the Svea Court
of Appeal (SCA), SCA also upheld the decision of the District Court
and added that it cannot be reasonably required that a trade mark
holder must use his trademark before his registration becomes final.
BI appealed
the Supreme Court to ask the ECJ (European Court of Justice) for
a preliminary ruling in the matter and explain how the underlying
EC rules of law were to be construed. The Supreme granted
leave for appeal and thereafter in a very short judgment upheld
the judgment of Svea Court of Appeal. The Supreme Court also stated
that as Section 25a of the STA was based upon Article 10 of
the EC Trade Mark Directive by which EU member states are free to
lay down their own procedural rules on how trade marks are to be
registered, there was no need for a preliminary ruling by the ECJ.
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