RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q4/SWE/1
26 August 1998
(98-3315)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION ON ENFORCEMENT
SWEDEN1
The present document reproduces the introductory statement made by the delegation of
Sweden, the questions put to it and the responses gi ven in the review of legislation on enforcement in
the context of the Council's meeting of 17-21 November 1997.2
_______________
I. INTRODUCTORY STATEMENT
Traditionally, Swedish intellectual property law has been based on the concept of clearly
defined rights with equally clearly defined limitations and then, in each intellectual property law,
provisions on sanctions for violations of those rights.  The policy has always been to treat, as much aspossible, the various intellectual property rights in a parallel way as far as sanctions and enforcement
are concerned.  In addition to compensation for damages, provisions on seizure and destruction of
infringing goods, and injunctions etc., a strong emphasis has always been put on criminal sanctions
for intellectual property infringements.  Those crim inal sanctions have been increased over the years.
Public prosecutors have the authority to initiate a criminal action not only upon complaint by an
injured party but also when this is called for in the public interest.  This latter possibility aims, in
particular, at facilitating and making more efficient the combat of piracy in the copyright field.  Theimpression of the authorities is that the courts are looking more and more seriously at intellectual
property infringements and several cases of imprisonment terms have occurred in recent years.
II. REPLIES TO QUESTIONS POSED BY JAPAN
1. Please indicate the "competent authorities" stipulated in Article 51 of the TRIPS
Agreement.
Decisions on the suspension of the release into free circulation of goods as mentioned in
Article 51 of the TRIPS Agreement are taken by the National Customs Board ( "Generaltullstyrelsen" )
which is the central administrative customs authority, whose decisions may be appealed against to the
general administrative courts (the County Admini strative Courts, the Central Administrative Court
and the Supreme Administrative Court).  The question of whether an infringement has actually takenplace and the measures to be taken in case such an infringement has actually occurred, is decided by
                                                     
1 As regards laws and regulations relevant to the area under review and notified by Sweden under
Article 63.2 of the Agreement, reference is made to documents IP/N/1/SWE/1 (Annex III); IP/N/1/SWE/E/1 and
IP/N/6/SWE/1.
2 The minutes of this meeting have been circulated as document IP/C/M/16.IP/Q4/SWE/1
Page 2
the competent ordinary Court which also has the power to issue an interim decision to the effect that
the suspension shall be terminated.
2. Please explain whether "proceedings leading to a decision on the merits of the case"
stipulated in Article 55 of the TRIPS Agreement, are judicial or administrative.
As mentioned in the reply to question 1, decisions on the merits of the case are taken by the
ordinary Courts.
3. Are there any ways other than the application stipulated in Articles 51 and 52 of the
TRIPS Agreement (hereafter referred to as "the Application") which enable a right holder torequest the competent authorities to suspend the release of the goods which infringeintellectual property rights or which are suspected to infringe intellectual property rights?
As indicated in Sweden's response to question 5 of the Checklist of Issues on Enforcement
3
there are provisions in the various intellectual property acts which relate to the destruction and
disposal, etc. of infringing material according to de cisions by the Courts in infringement cases.  Those
decisions may also involve seizure, also on a preliminary basis, of such infringing material.
4. Please explain what term your country regards as "a reasonable period within which
the competent authorities shall inform the applicant whether or not they have accepted theApplication" stipulated in Article 52 of the TRIPS Agreement.
The national legislation in force (Act 1994:1552 on Customs Control of Trademark
Infringements, which contains provisions comple mentary to those in the European Union Council
Regulation No. 3295/94) contains no provisions on the term within which the applicant shall be
informed whether the application has been accepted or not.  From the implementing regulations to
that European Union Regulation (Commission Regu lation No. 1367/95) follows, however, that such
information shall be given immediately, and this is obviously applied also at the Swedish national
level.
5. Please explain the term during which the Application is effective.
The Swedish Act mentioned in the reply to question 4 does not contain indications concerning
the effective term of the application.  In internal customs regulations, however, a period of one year is
prescribed in this respect.
6. Please explain whether a right holder is obliged to pay any fees to lodge the
Application.
The Act mentioned in the reply to question 4 gives the Government the authority to prescribe
fees in relation to applications as mentioned in the question.
7. Please indicate provisions of laws and ordinances which prescribe the "proceedings
leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPSAgreement. And please summarize their contents.
The legislative provisions referred to in the question are of two types.  One consists of the
provisions which are contained in the various intellectual property acts and which determine the
criminal and civil liability for infringements and which obviously are applied by the Courts in order to
                                                     
3 Document IP/N/6/SWE/1.IP/Q4/SWE/1
Page 3
decide the case on its merits.  The other type consists of provisions in the Code of Judicial Procedure
and which describe the various steps in the criminal or civil proceedings respectively.  Generally
speaking such a procedure is initiated through an application for summons of the defendant to the
Court.  Dealing here only with civil cases and leaving details aside, the provisions prescribe basically
the following.  Anyone who desires the issuance of a summons shall file a written application in this
respect to the competent Court.  The application sha ll be signed by the plaintiff or his attorney and
shall contain indications about the circumstances upon which the action is founded, the demand for
relief, the documentary evidence offered and the circumstances which make the Court competent.
Where the summons application fails to comply with the relevant requirements or is otherwise
incomplete, the Court shall direct the plaintiff to cure the defect.  Where such directives are not
complied with, the result is generally that the application may be dismissed.  If the application is not
dismissed, the Court shall issue a summons calling upon the defendant to answer the claim.  The
summons together with the summons application and the documents annexed thereto (for instanceevidence) shall be served upon the defendant.  Thereupon the Court hears the case, in civil cases
usually one or more preliminary hearings followed by  the main hearing.  Then the Court issues its
judgement which may normally be appealed to the Court of Appeal and, in cases of particular
importance, to the Supreme Court.
8. Please explain the specific procedure, if any, to be applied to the goods which are not
evident whether or not they infringe intellectual property rights, in Article 55 of the TRIPSAgreement.
As mentioned above, the decisions on the merits of the case are taken by the ordinary Courts,
whose decisions are to be implemented by the customs authority.  The Act mentioned above
specifically states that the customs authority which keeps the goods in question has to implement the
Court's decision concerning release, change or destruction of the goods.  Consequently, where the
Court finds that there is no infringement, it will order the release of the goods, and, as mentionedabove, such decisions may be issued also on a preliminary basis.
9. Please explain the responsibility that the competent authorities and other related
authorities take to the right holders when they fail to suspend the release into free circulationof goods which infringe intellectual property rights with regard to the suspension based on theApplication or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Questions 9 to 11 concern the liability of the competent authorities towards the right-owners
or the importers in case of failure to suspend the release of infringing goods or the suspension of
release of non-infringing goods, respectively.
As mentioned above, decisions on the suspension of the release of infringing goods are taken
by the National Customs Board and then the respective local customs authority has to implement
those decisions.  When taking such decisions the authorities obviously have to apply the law and to
make their own judgement on the merits of the case as far as the suspension issue is concerned.
Failure to take or implement such decisions may, depending on the circumstances, result in criminalliability for the officials concerned, an obligation to pay damages to the applicant, etc., like in other
cases where authorities fail in one way or another to act according to what the law prescribes.
It should be underlined that the decision on the question of whether an infringement actually
has occurred and which measures to take with the goods is a matter for the Courts and not for theadministrative authorities and the decision of the Courts (concerning the release, change or
destruction of the goods) has then to be implemented by the customs authorities.IP/Q4/SWE/1
Page 4
The above-mentioned Act prescribes that the storage of the goods whose suspension has been
decided by the customs authorities has to be carried out at the expense of the applicant.  Where a final
decision is taken to the effect that the goods shall be destroyed or that other measures shall be taken as
regards the goods, the applicant has a right to compensation from the person or persons against whom
the decision has effect.
10. Please explain the responsibility that the competent authorities and other related
authorities take to the right holders when they examine goods which infringe intellectualproperty rights and nevertheless release them into free circulation with regard to thesuspension based on the Application or the Ex Officio Action stipulated in Article 58 of theTRIPS Agreement.
Please see the reply to question 9.
11. Please explain the responsibility that the competent authorities and other related
authorities take to the importers when they suspend the release into free circulation of goodswhich do not infringe intellectual property rights with regard to the suspension based on theApplication or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Please see the reply to question 9.
12. Is the right holder informed of identities of the importers and consignors when the
competent authorities "suspend" the goods which infringe intellectual property rights or whichare suspected to infringe intellectual property rights as well as the case where the right holderis informed of identities of the importers and consignors stipulated in Article 57 of the TRIPSAgreement?
The above-mentioned Act does not contain any provisions concerning the information about
the identities referred to in the question.  Also in  this respect the provisions in the European Union
Council Regulation apply.  In principle, the customs authority shall, at the request of the right-owner,
inform him about the person who has submitted the customs declaration and about the receiver, if he
is known.  Also, the authority shall give the right- owner and other persons who are affected by any of
the actions taken a possibility to inspect the goods.
13. Please explain the measures to protect confidential information in the course of the
inspection stipulated in Article 57 of the TRIPS Agreement.  And please indicate provisions oflaws and ordinances which prescribe such measures.
The general principle under Swedish law is that documents and information in Courts and
public authorities – for instance customs authorities – are available for the public unless the Secrecy
Act (Act 1980:100) prescribes that, in specified and rather narrowly defined cases, the
documents/information shall be kept secret.  Chapter 9 of that Act contains a number of provisions on
"Secrecy with Regard to Private Persons' Personal and Economic Relations".  Thus, for instance,
Article 2 of that Chapter provides that secrecy a pplies to activities relating to customs inspections as
regards private persons' personal and economic relations.
14. Please explain the procedures of detentions and seizures to be ordered by the
competent authorities based on Articles 51 and 55 of the TRIPS Agreement.IP/Q4/SWE/1
Page 5
The procedures referred to in the question are explained in Sweden's response to question 16
of the Checklist of Issues on Enforcement.4  They imply essentially the following.  A right-owner may
apply in writing to the customs authority for an action against the import of counterfeit or pirated
goods.  The application shall contain a sufficiently detailed description of the goods and evidence that
the application is actually the right-owners in rela tion to the goods.  Following an examination of the
application the customs authority may suspend the release of the goods or retain them.  Where therelevant customs authority has not within ten days from the application been informed of the fact that
the matter has been referred to the competent author ity, the goods shall be released;  this period may,
however, where necessary be extended by not more than ten days.  The customs authority may request
the applicant to provide a security in order to guarantee his obligations towards the persons affected
by the action and the payment of the costs for the keeping of the goods by the customs authority.  The
owner, importer or receiver of the goods may request the release of the goods, against providing of a
security in order to protect the interests of the right-owner.
15. Please explain the procedures to appeal against any decisions ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
As mentioned above, decisions by the customs authority in matters concerning the suspension
of infringing goods may be appealed against to the administrative courts.  Detailed provisions in this
respect are contained in the Act on Administrative Procedures (Act 1971:291).  In principle theproceedings are conducted in written form.  The decisions by a County Administrative Court may be
appealed against to the Central Administrative Court in order for the matter to be considered by that
Court, only on special conditions, for instance that it is of importance for the judicial practice that the
matter is reconsidered or where there is a special reason to change the decision by the County
Administrative Court.  Decisions by the Central Administrative Court may be appealed against to theSupreme Administrative Court, which will, however, only consider the matter if there are very special
reasons to reconsider the lower Court's decision.
16. Please explain the basis for calculating the security or equivalent assurance stipulated
in Article 53 of the TRIPS Agreement that the competent authorities may require an applicantwhen they suspend the release into free circulation.
As mentioned above, the security which the applicant has to provide is decided by the
customs authority;  its purpose is to guarantee the applicant's obligations towards the persons affected
by the action and the payment of the costs for the keeping of the goods by the customs authorities.  Itis not known whether there are any principles established yet for the calculation of those costs.
17. Please explain who shall pay the cost of detentions based on Article 51 of the TRIPS
Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
As mentioned above, the applicant shall, in  the first instance, bear the costs for the
detention/storage of the goods.  Where the final decision implies that the goods shall be changed, thecosts for that change shall be borne by the person who has the right in the goods.  Where the final
decision implies that the goods shall be dest royed or changed, the applicant has a right to
compensation for what he has paid for the keeping of the goods from the person or persons against
whom the decision applies.
18. Please explain what kind of cases are regarded as "the exceptional circumstances" in
which the competent authorities may allow re-exportation of counterfeit trademark goodsstipulated in Article 59 of the TRIPS Agreement.
                                                     
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The legislation contains no provisions on such "exceptional circumstances" as mentioned in
Article 59 of the TRIPS Agreement.
19. Please explain whether the Swedish criminal procedures are consistent with Article 61
of the TRIPS Agreement which requires provisions for a sufficient deterrent, consistently withthe level of penalties applied for crimes of a corresponding gravity.
5
In a bill (Bill 1993/94:122, pages 55-56) containing proposals for strengthening the measures
against intellectual property infringements the Government stated, inter alia , that "acts that involve
infringements of intellectual property rights are to be taken seriously and possibilities must exist toimpose severe imprisonment penalties in serious cases".  The Government then proposed – and the
Parliament accepted – that the maximum penalty be increased from six months to two years for
industrial property infringements (formerly, this imprisonment scale had existed only as far as
copyright infringements were concerned).  This increase of the maximum penalty had also the effect
of extending the timeframe for instituting an action in respect of the violation of an intellectualproperty right and of making the provisions on detention of suspected persons possible.
It seems that the Courts more and more tend to adjudicate imprisonment sanctions, at least in
more flagrant copyright infringement cases.  As an example can be mentioned that the Court of
Appeal in Stockholm in a judgement of 26 September 1996, invoked, inter alia,  the fact that the
piracy activities of a defendant involved several hundreds of copies of children's movies which are
commercially interesting for a comparatively l ong period in an important market and that,
consequently great damage had been caused to the right-owners.  Moreover, part of the activities had
occurred through different shops, a fact that would make possible a wide distribution which was
therefore especially dangerous also because the distribution would occur without the publicsuspecting that the copies were pirated ones.  For these reasons the Court found that the penalty
should be imprisonment.
III. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
General obligations
1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for
the effective enforcement of the intellectual property rights covered by the Agreement.IP/N/6/SWE/1 describes jurisdiction in relation to copyright, patent, trademark, andindustrial design cases.  Please state whether the same jurisdiction applies in connection withgeographical indications, integrated circuit layout-designs, and rights in undisclosedinformation and, if not, describe identify the courts that are responsible for infringementactions in relation to those rights.
As regards the protection of integrated circuit layout-designs and as regards rights in
undisclosed information, the same the same jurisdiction applies as in the case of copyright and otherintellectual property rights.  However, a special regime applies as regards geographical indications.
Those enjoy protection under the Marketing Act (Act 1995 No. 450).  There is a special system of
sanctions for violations of that Act.  Thus, any person who intentionally or with carelessness
contravenes the provisions of the Act may be ordered to pay to the State a "market disruption fee" of
between Skr 5 000 and Skr 5 000 000, and, in addition, be subject to prohibition and information
orders and may be ordered to pay a compensation for damages, etc.
                                                     
5 Reference is made to Sweden's responses to the Checklist of Issues on Enforcement (document
IP/N/6/SWE/1).IP/Q4/SWE/1
Page 7
Procedures for the imposition of a market disruption fee may be initiated at the District Court
of Stockholm by the Consumer Ombudsman (an offici al who must be a lawyer and who is appointed
by the Government under the Marketing Act to deal with matters relating to marketing practices, etc.).
If the Consumer Ombudsman in a particular case decides not to present an application for a market
disruption fee, any businessman affected by the marketing and any association of such businessmenmay institute such a proceeding.  Furthermore, actions relating to prohibition orders (against the
continuation of marketing actions which would violat e the Act) may be instituted at the Stockholm
City Court by the Consumer Ombudsman, by any bus inessman affected by the marketing activities
and any association of consumers, businessmen or wage or salary earners.  Interim decisions may be
issued by the Court while proceedings are pending.  Finally, actions relating to the payment of
damages may be instituted either at the Stockhol m City Court or at any District Court which is
competent under the Code of Judicial Procedure.  The Consumer Ombudsman has the authority toorder certain such orders himself, primarily such which concern obligations for a businessman to
provide information concerning such products and acts where a violation of the Marketing aAct may
occur.  These decisions by the Ombudsman may be appealed to the Stockholm City Court.
Any judgements by the Stockholm City Court or any other District Court may be appealed
against to the so-called Market Court.  This Court is a specialized court competent in matters
concerning the Marketing Act and matters concerning unfair competition or concerning, for instance,
product liability and contract terms in consumer relations.  The Market Court consists of a President
and a Vice President, who must have experience as judges, and five special members who must be
economic experts.  The Market Court is the final instance in, inter alia , matters relating to the
application of the Marketing Act.
2. Please describe briefly the procedure that must be followed by a foreign party to
initiate an enforcement procedure in the courts.
The procedures for initiating enforcement proced ures are the same for foreign parties as for
Swedish nationals (see, however, the reply to question 3).
3. Please identify any requirement that a foreign party must meet to initiate a proceeding
in the courts that is not required of a national or resident of Sweden and cite the legalauthorities providing for those differences.
The Act (1980 No. 307) on the Duty for Foreign Claimants to Post a Bond for Litigation
Costs contains provisions on what foreign claimants have to comply with in this respect.  Basically,
where a foreign national not having his residence in Sweden or a foreign legal entity wants to initiate
an action at a Swedish court against a Swedish national or a Swedish legal entity, he must, upon
request by the defendant, post a bond for the litigation costs which he may be ordered to pay under afinal decision in the case.  Then there are a number of detailed provisions about the waiver of that
duty (for instance in relation to persons from the European Economic Area), about the nature of the
bond, etc. which are, however, too detailed to be dealt with here.
4. Please explain any provisions in the enforcement system in Sweden that ensure
expeditious remedies.  In addition, please explain what provisions are available to preventdeliberate delays by the parties to a proceeding and indicate the circumstances in which suchprovisions will be applied.
There are a number of provisions in the Swedish Code of Judicial Procedure which aim at
securing the availability of expeditious remedies .  For instance, Chapter 18, Article 6, of the Code
makes it possible to take certain actions against any party who, through the failure to appear or toIP/Q4/SWE/1
Page 8
comply with a court order, or the presentation of a claim or defence that he knew or should have
known to be without merit, or carelessness or oversight in other respects, has caused adjournment of
the proceedings or has otherwise caused expenses for the adverse party.  Such a party shall reimburse
the adverse party for such expenses regardless of how costs in the case in general are to be distributed.
Also, Article 7 in the same Chapter contains a provision on the liability of an attorney in case he has
caused expenses through having initiated an action without provocation from his adversary or hasotherwise deliberately or negligently caused unnecessary litigation.  In such a case, the Court may
impose joint liability for costs upon the party and his representative.
Furthermore, Chapter 42, Article 15 of the Code gives the Court the authority to order a party
to determine finally his claims and state the evidence that he wants to invoke, where this is called for
taking into account the way in which the party has acted earlier in the proceedings.  After the expiry
of the time within which such an order has to be  complied with, the party in question must not invoke
any new circumstances or invoke any new evidence where he can not make it plausible that there was
a valid excuse for his non-action in this respect.  Furthermore, the Code contains provisions on
so-called "Default Judgement" which may be pr onounced in cases amenable to out-of-court
settlement.  Such a judgement may be entered where a party has been directed to appear before the
Court with the consequence that otherwise a default judgement may be entered against him and henevertheless does not appear and, furthermore, that the appearing party requests such a judgement.
5. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case
preferably be in writing, the better to determine the reasoning on which the decision is based.Please state whether judges must render their decisions in writing and cite the legal authoritiesrequiring such written opinions.
Obviously, any judgements or decisions by judges have to be rendered in writing, inter alia ,
to make appeals possible. Thus, Chapter 17, Article 7 prescribes that "any judgements shall be inwriting and contain …".
Civil and administrative procedures and remedies
6. Article 42 requires that defendants be notified of judicial and administrative
intellectual property enforcement proceedings brought against them.  Please describe theprocedures for notifying defending parties regarding proceedings that have been initiatedagainst them, indicate the information provided regarding the proceeding and cite the legalauthorities establishing these procedures.
The general provisions on applications for summons and on the calling on the defendant to
answer the claims in such applications are contai ned in Chapter 42, Articles 1 to 6 of the Code on
Judicial Procedure (as regards civil cases) and in Chapter 45, Articles 1 to 9 of the same Code (as
regards penal proceedings).  These provisions apply in intellectual property cases as well as in othercases.  Dealing here only with civil cases and leaving details aside, the provisions prescribe basically
the following.  Anyone who desires the issuance of a summons shall file a written application in this
respect to the competent court.  The application shall be signed by the plaintiff or his attorney and
shall contain indications about the circumstances upon which the action is founded, the demand for
relief, the documentary evidence offered and the circumstances which make the court competent.
Where the summons application fails to comply with the relevant requirements or is otherwise
incomplete, the Court shall direct the plaintiff to cure the defect.  Where such directives are notcomplied with, the result is generally that the application may be dismissed.  If the application is not
dismissed, the Court shall issue a summons calling upon the defendant to answer the claim.  The
summons together with the summons application and the documents annexed thereto (for instance
evidence) shall be served upon the defendant.  Th ere are no explicit time-limits within which theIP/Q4/SWE/1
Page 9
Court has to serve that summons in civil cases.  Neither are there, generally speaking, such time-limits
in criminal cases;  however, if the defendant is under arrest or detention, there are time-limits within
which the prosecutor has to file an application for summons in the case.  Those time-limits differ
somewhat depending on the situation and the seriousness of the case.  It would be too complicated to
go into details on these issues here, more so as these situations do not occur frequently in intellectual
property cases.
7. Article 43.2 provides that, in the event a party refuses to provide information ordered
by judicial officials, those officials may be authorized to make preliminary and finaldeterminations adverse to that party.  IP/N/6/SWE/1 states that fines can be imposed in theevent a person fails to produce a document ordered by the court.  May judges order parties toprovide information not contained in a document and have the authority to makedeterminations adverse to the party refusing to provide information or documents?
In addition to the provisions on documentary evidence contained in Chapter 38 of the Code of
Judicial Procedure, that Code also contains provisions on the hearing of witnesses (Chapter 36), of
parties under truth affirmation (Chapter 37), or experts (Chapter 40) and on examination of objects
(Chapter 39).  Also, a special provision in the Code deals with the evidentiary value to be given to a
party's behaviour in the proceedings.  In this respect, Chapter 35, Article 4, prescribes that if a partyfails to respond to an order by a court to appear before it or to perform any other procedural act, or
refuses to answer a question relevant to the investiga tion, the Court shall determine, in view of all the
relevant circumstances, the evidentiary significance of the party's behaviour.
Generally speaking, the Court shall, in accordance with what its conscience dictates,
determine what has been proved in the case after evaluating everything that has occurred in the
proceedings (Chapter 35, Article 1, of the Code of Judicial Procedure).  This is the so-called
"Principle of Free Evaluation of Evidence" upon which the Swedish Court procedures, and legal
system in general, are based.
8. Article 44.2 provides an exception to the requirement in paragraph 1 for government
use or use by third parties authorized by the government, limiting the remedy forinfringement to payment of adequate remuneration as provided in Article 31(h).  Pleasedescribe any such limitations on remedies in the laws of Sweden and cite the legal authoritiesproviding for those limitations.
There are no such limitations on remedies as mentioned in the question.
Provisional measures
9. Article 50.1 require that judicial authorities have the authority to order prompt and
effective provisional remedies to preserve relevant evidence in regard to an alleged
infringement.  IP/N/6/SWE/1 describes the authority which exists to prevent furtherinfringement or to preserve assets that might be needed to satisfy a judgement.  Please identifyany provisional measures available to preserve relevant evidence in regard to an allegedinfringement and cite the relevant legal authority.
Provisions on orders for the preservation of evidence are contained in various provisions in
the Code of Judicial Procedure.  Thus, Chapter 27, Article 1, of that Code prescribes, as regards
criminal proceedings:  "Objects which reasonable can be assumed to be of importance for the
investigation of an offence, or to have been taken from a person by an offence or to be subject to
forfeiture by reason of an offence may be seized" (" tagna i  beslag ");  according to Article 5 of theIP/Q4/SWE/1
Page 10
same Chapter, Courts may, if delay entails risks, issue such seizure orders immediately to remain
effective until otherwise ordered.
In addition to these provisions also Chapter 15 of the same Code contains provisions on
general provisional measures in civil cases.  These have been elaborated on in some detail in Sweden's
responses to the Checklist of Issues on Enforcement6 submitted by the Ministry of Justice in April
1996.  Such measures may also, in practice, serve the purpose of securing evidence.
Furthermore, Chapter 38, Article 2, of the Code (which provision has general application in
all types of cases) prescribes that "anyone possessing a document that can be assumed to be of
importance as evidence is obliged to produce it" and Article 4 of the same Chapter prescribes that
"when anyone is under an obligation to produce a document as evidence, the Court may direct him to
produce it".  Essentially, the same provisions apply as regards examination of objects etc., providedfor in Chapter 39 of the Code.
All these provisions imply that provisional measures for the preservation of evidence are
available under Swedish procedural law.
In addition to what has been said now, also the application of some provisions in the
intellectual property laws may have the effect of securing evidence in a particular case. Thus, for
instance, Article 41 of the Trademark Act and Article 55 of the Copyright Act contain provisions on
the seizure, also on a provisional basis of goods or objects in respect of which an infringement may
have occurred.  Such seized goods or objects may certainly also be of importance for evidentiarypurposes.
[Follow-up question from the US]
Sweden's response to question 9 from the US describes the provisional measures which
are available under Swedish law to preserve relevant evidence.  Please clarify whether any of
these measures can be taken without notice to the other party.
Such orders for the preservation of evidence as are mentioned in the reply to question 9 from
the US may, if a delay entails risks, be issued immediately, without notice to the other party, toremain effective until otherwise ordered.
10. Article 50.3 requires that judicial authorities be authorized to require an applicant to
provide evidence to establish with a sufficient degree of certainty that the applicant is the rightholder and that infringement has occurred or is imminent.  With respect to each intellectualproperty right defined in Article 1.2 of the TRIPS Agreement, please describe the evidencerequired by right holders to establish ownership.
There are no formal provisions on the evidence required for the holder of an intellectual
property right to establish ownership of the right.   This follows naturally from, for instance, the
provisions on the contents of an application fo r summons (where the applicant has to state, inter alia ,
the circumstances upon which the claim is based);  these circumstances would, if properly presented,constitute sufficient reason for the Court to assume that the status of the applicant in this respect is
what he claims it to be.  However, as regards the ownership of the rights in a literary or artistic work
Article 7, first paragraph of the Copyright Act (1960 No. 729) contains a provision to the effect that "a
person whose name or generally known pseudony m or signature appears in the usual manner on
copies of the work or when it is made available to  the public, shall, in the absence of proof to the
                                                     
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Page 11
contrary, be deemed to be its author".  This thus establishes a presumption of authorship and
consequently also on the right to file an action for a provisional measure.
11. Article 50.4 requires that parties be notified when provisional measures have been
adopted inaudita altera parte .  Please describe briefly the procedures followed by each
authority able to adopt such measures for notifying affected parties and state the time withinwhich such notice must take place.
As mentioned in Sweden's responses to the Checklist of Issues on Enforcement
6 provisional
measures are available under Swedish law inaudita altera parte  in the form of interlocutory
injunctions (under special provisions in each one of the intellectual property laws), in the form of
general provisional measures in civil cases (Chapter 15, Article 3 of the Code on Judicial Procedure)and in the form of provisional measures and security measures (detention or arrest, provisional
attachment, etc.) in criminal cases.  From general principles in procedural law in Sweden follows that
when an application for a provisional measure is filed and the Court finds it necessary to grant
inaudita altera parte  the measure applied, the application and the decision on the grant of that
measure are served upon the defendant at the same time;  the defendant will then have the possibilityto request a review of the action taken.  It also follows from general principles that cases relating to
provisional measures are to be dealt with by the Courts without delay.  In established practice this will
occur within days.  In cases relating to documents or objects there are, however, no determined time-
limits in this respect.
Special requirements related to border measures
12. Article 52 of the TRIPS Agreement requires that rights holders wishing to stop
importation of counterfeit trademarked goods or pirated copyrighted works present evidenceto the competent authorities that there is prima facie infringement of their trademark orcopyright.  Please explain what evidence will constitute prima facie infringement in Sweden.
As mentioned in Sweden's responses to the Checklist of Issues on Enforcement,
7 Sweden
applies the European Union Council Regulation No. 3295/94 of 22 December 1994, as further
implemented through the Act on Customs Control of Trademark Infringements of 15 December 1994.
As mentioned in connection with question 7, the Swedish legal system is based on a free evaluation of
the facts in the case concerned and not on any formal requirements as to the value of certain facts in
that respect.  Thus, there are no explicit provisions on what would constitute prima facie evidence.  Inthe case of border measures, a corresponding effect w ill follow from the fact that the application for a
border measure shall contain a sufficiently detailed description of the infringing goods and evidence
that the applicant is actually the right owner to  the relation to the goods (see also above in the
response to question 10).
13. Article 57 requires that the competent authorities be able to authorize the right holder
to inspect the detained goods in order to substantiate the claims.  Please explain how rightholders are provided an opportunity to inspect suspect goods that have been detained bycustoms authorities.
The above-mentioned Regulation applied by Sweden provides that the customs authority
concerned shall give the right-owner and other persons who are affected by any of the actions taken, a
possibility to inspect the goods.  Also in this case  Swedish law does not contain any specific criteria
on the way in which right-holders are to be provided an opportunity to inspect suspect goods that have
been detained by customs authorities.
                                                     
7 Document IP/N/6/SWE/1.IP/Q4/SWE/1
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14. Article 60 permits Members to exclude from the provisions for border enforcement
small quantities of goods of a non-commercial nature carried by passengers or sent in small
consignments.  Please describe what constitutes a de minimis  import that is excluded from the
border measures under the law of Sweden.
There are no explicit provision on de minimis  imports in Swedish law (except the provisions
on tax-free importation of duty-free goods which are hardly of any interest in this context).
Criminal procedures
15. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least
for wilful trademark counterfeiting and copyright piracy.  Please explain how the penaltiesprovided under the laws of Sweden comply with that obligation.
In a bill (Bill 1993/94:122, pages 55-56) containing proposals for strengthening the measures
against intellectual property infringements (which proposals were adopted by the Parliament) the
Government stated, inter alia , that "acts that involve infringements of intellectual property rights are
to be taken seriously and possibilities must exist to impose severe imprisonment penalties in serious
cases".  The Government then proposed - and the Parliament accepted - that the maximum penalty be
increased from six months to two years for industrial property infringements (formerly, this
imprisonment scale had existed only as far as copyright infringements were concerned).  This increase
of the maximum penalty had also the effect of extending the timeframe for instituting an action inrespect of the violation of an intellectual property right and of making the provisions on detention of
suspected persons possible.
It seems that the Courts more and more tend to adjudicate imprisonment sanction, at least in
more flagrant copyright infringement cases.  As an example, it can be mentioned that the Court of
Appear in Stockholm in a judgement of 26 September 1996, invoked, inter alia , the fact that the
piracy activities of a defendant involved several hundreds of copies of children's movies which arecommercially interesting for a comparatively l ong period in an important market and that,
consequently, great damage had been caused to the right-owners.  Moreover, part of the activities had
occurred through different shops, a fact that would make possible a wide distribution which was
therefore especially dangerous also because the distribution would occur without the public
suspecting that the copies were printed ones.  For these reasons the Court found that the penaltyshould be imprisonment.
[Follow-up questions from the US]
1. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, inte grated circuit layout-design and trade secret
enforcement for each of the years 1996 and 1997, including the number of cases filed;
injunctions issued; infringing products seized; infringing equipment seized; cases resolved(including settlement); and the amount of damages awarded.
It has proved to be extremely difficult to obtain any exact and reliable information concerning
the number of intellectual property cases in the courts and outright impossible to obtain such
information broken down according to types of rights and types of cases, the reason being that nosuch breakdown exists in the statistical information available at our central court administration.  The
information below is, therefore, based on personal inquiries at some courts which are of special
importance in this respect.  The information relates only to civil cases; no specific information is
available on the number of criminal cases, the reason being that those which concern intellectualIP/Q4/SWE/1
Page 13
property are not singled out in the statistics and, furthermore, intellectual property violations
frequently are linked to other types of offences/crimes and thus disappear in the statistics.
Generally speaking, the impression of the authorities is that the number of both civil and
criminal cases has been steadily increasing during the last ten years.
As regards the proceedings in the ordinary  courts, civil litigati on in patent cases is
concentrated in the Stockholm City Court and in practice also most civil litigation occurs in that
Court.  According to the information provided by th e Court, 31 cases have been filed in the course of
1996 and 20 cases between 1 January 1997 and 30 November 1997.
As regards administrative proceedings, which are perhaps of less interest from an
enforcement point of view, the normal route is that rejections of applications for industrial property
rights may be appealed against to the Patent Cour t (which is the second instance) and from there to
the Supreme Administrative Court.  Each year about 100 patent cases go to the Patent Court and about
700 cases relating to other industrial property rights, primarily trademark rights.  The Supreme
Administrative Court received 95 appeals from the Patent Court in 1996 and 61 cases during the first
11 months of 1997.
2. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions and the amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that your criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
Please see the reply to follow-up question 1.
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