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Administrativ hävning enligt nya varumärkeslagen och ändringar i firmalagen
Örebro University, School of Law, Psychology and Social Work.
2012 (Swedish)Independent thesis Basic level (degree of Bachelor), 10 credits / 15 HE creditsStudent thesis
Abstract [en]

Trademark law within the EU has become the subject of fast development. Therefore a need has emerged to adapt the Swedish legislation to the legislation within the EU. Firm law has not experienced the same international influences but because of the wish to synchronise it with trademark law, which was expressed in the directions to the trade mark commission, many of the adaptations made within trademark law has also been made within firm law.

One of the adaptations that have been made within Swedish law is the establishment of a new administrative process for abrogating trade mark and firm registrations. The person who wants to apply for abrogation of a registration can now turn directly to the registration author-ity with the application instead of having to apply before court, as was the case before. If the owner of the registration does not challenge the application within the right time the registra-tion authority may abrogate the registration. If the owner of the registration challenges the application within given time the applicant can request that the case is handed over to court for a full material examination. Such an examination is not performed by the registration au-thority.

The main purpose with the adoption of the administrative process was that it would make it easier and cheaper to abrogate registrations in which the owner no longer has an interest. It would especially make it easier for small and medium-sized enterprises that might find it ex-pensive and complicated to claim abrogation before court. It was predicted that the process should be especially useful in two typical cases. Firstly when there exists a relative obstacle for registration that the registrations authority does not normally take into consideration when performing its ex officio examination. Secondly when there is no doubt that the owner of a registered headmark does not fulfill the request for usage.

After an examination of a number of cases the administrative process seems to be applied in the typical cases that were predicted. Though it can be discussed whether the process has im-plicated any larger changes for the applicant of abrogation of a headmark registration, since it may be assumed that relatively many of the cases will end up in court anyway. Whether the process fulfills the underlying purposes or not is hard to answer within the frame of this essay. The main purpose is probably fulfilled to a large extent but even applications for abrogation of registrations that the owner has no real interest in are sometimes challenged. When it comes to the principal of legal security it has to be assumed that the administrative process fulfills its demands even though the lack of possibility to appeal may be questioned.

In the preparatory work alternative layouts of the administrative process was discussed. They all had in common that the registration authority should be able to perform material examina-tions in cases concerning abrogation of registrations. These suggestions were rejected because of the demand of legal security and a fear that the parties would not settle with an examination made by the registrations authority and therefore take the question on to court. That would delay the final judgement. Most of the facts indicate that the administrative process, regard-less of how it its designed, in many cases will lead to that the abrogation cases eventually end up court. It can be discussed if the registrations that are actually abrogated are enough to out-weigh the applications for abrogation that are challenged and handed over to court.

Place, publisher, year, edition, pages
2012. , p. 36
Keywords [sv]
varumärke, firma, varumärkesrätt, firmarätt, hävning, administrativ hävning, immaterialrätt, känneteckensrätt, kännetecken
National Category
Law and Society
Identifiers
URN: urn:nbn:se:oru:diva-23739OAI: oai:DiVA.org:oru-23739DiVA, id: diva2:537582
Subject / course
Rättsvetenskap
Uppsok
Social and Behavioural Science, Law
Supervisors
Examiners
Available from: 2013-04-25 Created: 2012-06-27 Last updated: 2017-10-17Bibliographically approved

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