In summary, what should rights holders know about enforcing brands on social media platforms in Sweden?
The Swedish trademark legislation SFS 2010:1877 and the EU trademark regulation no. 2017/1001 provide the legal base for trademark infringement and counterfeits. A platform can be directly liable based on the EU trademark regulation art. 9(2)(see, for example, CJEU C-148/21 and C-184/21 Amazon v Louboutin from December 2022). For a platform to be directly liable it needs to have an active role in the infringement.
However, when reporting trademark/copyright infringement or counterfeits online, platforms often risk being held indirectly liable as it’s not the platform per se infringing rather the platform being used as a tool for IP infringement.
A platform can be exempted from indirect liability and enjoy a safe harbour as has been regulated in the E-commercedirective no. 2000/31/EC, which is further harmonised by the recent Digital Service Act (regulation no. 2022/2065). The E-commerce directive is intended to be replaced by the Digital Service Market directive, which has been implemented intoSwedish law as of 1 January 2023. To be exempted from liability, though, a provider should act quickly to remove, or disableaccess to, content upon obtaining knowledge or awareness of the infringement.
This has also been regulated in the Swedish copyright law (SFS 1960:729). However, national legislation can imposeadditional requirements as it’s up to each Member State how the directive is implemented. As a result, the Swedish copyrightlaw additionally requires for exemption of liability:
It should be noted that an individual assessment is made depending on the platform, meaning that some requirements canbe considered to a larger extent compared to others.
Online enforcement is typically a time and cost efficient way to take action, especially when conducted through theplatform’s established processes. Depending on volume, the costs should not exceed SEK5,000 per infringement. In addition,a cease and desist letter can be sent, in cases where you are able to identify the infringer. Such letters are also cost efficient,even though not as efficient in cases like these. As a last resort, there is litigation in court, where the cost can be expected toamount to SEK500,000 or more.
The majority of cases from Swedish courts regarding social media have concerned marketing law rather than brandenforcement.
As has been shown by reports, most Swedes tend to use well-known social media platforms with an enforcement reportavailable. Each platform makes an assessment on whether the reported content is in fact an infringement once the report hasbeen submitted. The social media enforcement in Sweden focuses more on trademark or copyright infringement than anti-counterfeiting.
The Swedish Internet Foundation (Internetstiftelsen) presents a yearly report aimed at reflecting the Swedes’ habits on socialmedia based on active Internet users. The 2023 report revealed that 85% of Swedes using the Internet engage in socialmedia daily. The most-used social media platforms are YouTube, Facebook, Instagram, Snapchat, LinkedIn, TikTok and X.
However, there are two Swedish well-known platforms that could potentially fall under the social media category that rightsholders should be aware of.
Description: Blocket is a nationwide sales website where individuals can sell various used gadgets. An individual interestedin selling a specific object, typically used, can post a sales ad on the website and include a description of the object and price.
Brand enforcement risk factor: Blocket is collaborating with several trademark owners to prevent sales of counterfeits onthe platforms. It is therefore evident that the platform has faced challenges in connection to intellectual property and chosento taken action.
Types of infringement risks: The main infringement risk on Blocket is fraud and sale of counterfeits. Blocket has takenactions to secure payment methods for various transactions to reduce payment fraud. Further, the sale of counterfeits is alsoa challenge for the platform. Actions have also been put in place for trademark holders to report a potential infringementdirectly to the platform.
How to report infringement: Blocket encourages trademark holders to contact it directly through a support query or anonline form.
Challenges of enforcement on this platform: We are not aware of any known enforcement challenges on the platform.Blocket is able to remove ads that are infringing intellectual property.
Recommendations to brand owners: Certain brands and products are more likely to be a target for counterfeiting and ifyou are concerned that your trademark might be affected by this in Sweden then you should contact Blocket to worktogether with them.
Description: Flashback is an internet forum where users exercise their freedom of speech. It is one of Sweden’s most visitedwebsites. A user creates a post regarding a certain topic or a discussion regarding a recent event, and other users canengage in the discussion.
Brand enforcement risk factor: The enforcement risk factor is average on Flashback.
Types of infringement risks: The platform is taking actions against reported copyright infringements. A post can be deletedfrom the website, thus preventing others from accessing the material. The user who wrote the post can also lose access toits account. The platform allows users to enter links in their post that may contain an infringement of copyright.
How to report infringement: Flashback enables reports to be submitted directly to the platform.
Challenges: Once a report has been submitted, Flashback examines it. The author isn’t aware of any enforcementchallenges.
Recommendations: The platform is based on anonymity, meaning that in cases where a single user keeps uploadingcopyright infringing material it may be difficult to take further legal action against that person. The recommendation to brandowners is therefore to stay vigilant and monitor to avoid future copyright infringement to the best extent possible.
This article was first published by World Trademark Review in May 2024.
