SWEDEN Law and Practice Contributed by: Helena Rönqvist, Magnus Jonson, Vilma Slättegård and Anna Karlsson, Magnusson Law
5. Trade Secrets 5.1 Legal Framework and Protectable Information
period of six months within which the non-payment may be remedied. A Swedish design registration is valid for a period of five years from the date of the application. The reg- istration may be renewed for a total maximum term of 25 years. In the case of spare parts, the maximum term of protection is 15 years. A limited form of design protection within the EU may also be obtained without registration, simply by making the design available to the public. Such unregistered protection has a dura- tion of three years from the date of publication. 4.4 Enforcement and Remedies See 3.7 Copyright Enforcement and Remedies . 4.5 Functionality and Technical Features Under Swedish law, in line with the broader EU frame- work, design protection is unavailable for features of a product’s appearance that are exclusively dictated by its technical function. Swedish courts apply the principles established by the Court of Justice of the European Union (CJEU) in this area. A key authority is the CJEU’s judgment in Case C-395/16, Doceram , in which the Court clarified the applicable test. Accord- ing to the Court, to establish that features of appear- ance are exclusively dictated by technical function, it must be shown that technical function was the sole determining factor behind those features – irrespec- tive of whether alternative designs capable of achiev- Design protection does not extend to those features of a product’s appearance which must be reproduced exactly in terms of shape and dimensions in order for the product to which the design relates to be mechanically connected to, or placed in, around or against another product, so that both products ful- fil their function – the so-called “must-fit rule”. There is, however, an exception for connecting parts. The exception applies if the products are interchangeable and are joined together repeatedly within a modular system – the so-called “LEGO exception”. ing the same function may exist. Partial designs can be protected.
The Swedish Trade Secrets Act implements the EU Trade Secrets Directive, which broadly harmonises the law in this area in the EU. The Trade Secrets Act pro- vides protection for trade secrets, which are defined (broadly) as information (i) which is secret, in the sense that it is not generally known or accessible in the cir- cles that normally deal with the kind of information in question, (ii) that has been subject to reasonable steps to keep it secret, and (iii) whose disclosure is likely to cause damage to the holder in respect to competitors. The law is technology-neutral and applies to all forms of trade secrets including source codes and computer programs. 5.2 Reasonable Measures and Confidentiality Under the Swedish Trade Secrets Act information is protected only if the holder (ie, the owner) has taken reasonable measures to keep it secret, which entails an active obligation on the part of the holder. The required measures are assessed on a case-by- case basis and do not need to meet any specific formal standard. The measures may include issuing internal instructions on how confidential information is to be handled and restricting access to authorised persons. A completely passive approach is insuffi- cient, and it is not enough for the holder to refrain from disclosing the information or for recipients to understand that it is confidential solely based on the nature of the information. Disclosure to employees or third parties does not in itself mean that protection ceases, provided that the information remains confidential and that access is appropriately restricted. However, if the information is disclosed without adequate measures to preserve its secrecy, such that it becomes generally known or readily accessible, it no longer meets the requirements to be regarded as a trade secret. 5.3 Misappropriation of Trade Secrets Misappropriation includes the unlawful acquisition, use or disclosure of a trade secret. Unlawful acquisi- tion may occur through, for example, unauthorised
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