(i) For Sweden, being a member of EU, the principle of regional exhaustion of patent rights applies as to such products that have been put on the market by the IPR owner or with his consent within EU or the EEA region. As to products that were put into free circulation outside the common region the IPR owner is not prohibited from exercising his right in order to prevent the importation of protected goods. Thus, besides regional exhaustion only national exhaustion applies in case of patents.

The Swedish group believes that as for patent rights exhaustion should not be extended to have global effect.

(ii) As far as trade mark rights are concerned the same principal as for patents has been set by the European Court of Justice in the Silhouette case, which ruling was confirmed in the Sebago case. According to these decisions national courts within EU are excluded from applying national law, which in some countries may allow international exhaustion.

In order to clarify the implementation in Sweden of the Harmonization Directive and in consequence of the abovementioned decisions, the Swedish Trade Mark Act was amended as per July 1, 2000. The Act now explicitly states that the exhaustion is effective throughout the EEA region.

However in parallel, the Swedish Government is acting for changing the rules back to international exhaustion as a main rule within the trade mark area, which in fact has been the principle applied for decades in Sweden.

(iii) The principles of exhaustion as stated for patents do apply also for design rights and plant breeders´ rights.

Within the common region contractual restrictions on purchasers of goods to limit the effect on exhaustion are in violation of EU competition rules. Since Sweden applies a rule of regional exhaustion for goods put on the market within the EU or EEA and not the principle of international exhaustion the proprietor of an IPR-right can prevent parallel imports from outside of this region. He can therefore impose further contractual restriction on a purchaser outside of the EEA as long as these are not contrary to the EU competition rules, i.e. that the restraints do not have a noticeable effect within the common market. The same principles apply for patents, trade marks and other IP rights in this respect.

If it is at all possible to impose contractual restrictions on a purchaser the IPR-owner would not be considered to have given his consent if the goods were put on the market in breach of the agreement.

In accordance with the principle of regional exhaustion parallel import of a product that has been put on the market outside of the EU or EEA is prohibited unless the owner of the IPR has given his consent. In Sweden there is no equivalent to the Common law concept of an implied license and the parallel importer must therefore show that the IPR-owner by an agreement has actually given his consent to the parallel import.

Marking requirements have not been discussed in Sweden.

The effect of the removal or loss of any marking has not been discussed either.

(i) According to Swedish patent law regional exhaustion only occurs when a product has been put on the market by the IPR owner or with his consent. When a product has been put on the market under a compulsory license there is no consent. On the other hand, in many cases the exhaustion of the IPR is a prerequisite for the functioning of the compulsory license within a market. The question has not been settled under Swedish law, but Swedish courts may possibly consider the IPR exhausted if a compulsory license has been given in a EU member state. International exhaustion outside the common region would most likely not take place.

(ii) A compulsory license is not possible to obtain under Swedish trade mark law.

(iii) In principal, the same rules apply in the case of design rights and plant breeders' rights as for patents.

Although there is no particular case law on the requirement for "consent", it can be expected that this issue is decided by the facts in each case. No particular relation between the IPR owner and the purchaser is excluded from a "consent situation". There is no difference between various IP rights in this respect.

In case of trade mark rights the owner can object to parallel importation within the common region both where (a) the goods and (b) - unless the modifications were necessary because of national requirements - their packaging have been modified.

With regard to the principle of regional exhaustion applied within the EU it could be remarked that the Community may extend the area of regional exhaustion by entering into international agreements in that sphere, as was done with the EEA. Hereby the principle of regional exhaustion, strongly favoured by most member states, can be upheld while the area therefore is enlarged. The question of exhaustion can also be the subject of multilateral negotiations within the WTO although the question was excluded from the TRIPS-agreement.

Summary

Principles on exhaustion laid down by the EU and the ECJ apply in Sweden. There are no decisions by Swedish courts after Sweden having become a member of the EU that are relevant to the issues discussed under Q 156.

Résumé

Les principes de la consommation ayant eté établis par l'Union Européenne et par la Cour Européenne de Justice sont applicables en Suède. Depuis l'adheration de la

Suède á l'Union Européenne, aucun verdict n'a eté rendu par le tribunal suédois qui soit d'importance pour les questions traitées sous Q 156.

Zusammenfassung

Grundsätze des von den EC und des ECJ festgestellten Verbrauchs haben in Schweden Giltigkeit. Nach dem Beitritt Schwedens zur EU liegen keine Beschliisse

Schwedischer Gerichte vor, die für die unter Q 156 in Betracht konunenden Fragen relevant wären.