Sweden: Are new enforcement strategies necessary?

Introduction

The purpose of intellectual property rights and in particular copyright or design rights is to prevent others from copying the work and profiting from the time, creative work and investments made by the rightsholder. Through the enforcement of these rights the rightsholders may for example prevent the existence of counterfeit goods i.e. unlawful copies of the original product. But in favour of the consumer interest of competition the rightsholder must in many cases accept third-party products inspired by the original that fall outside the scope of protection of the design.[1]

In light of a Swedish judgment in the field of protection of designs and works of applied art this article will address the practical concerns for a rightsholder while seeking to prevent a third party from exploiting the likeness of the original product.

The particulars of the case

In a recent judgment by the Patent and Market Court of Appeal, of 27 November 2025 in PMT 7290-24 (found here), the possibility to use an EU community design registration and claim copyright protection in enforcement was put to the test.

The case concerned a dispute between a British luxury fragrance house and a perfume manufacturer and his Swedish company. Proceedings were initiated by the British company at the Patent and Market Court whereby the British company alleged that the Swedish company had infringed the Community design – covering a stylised perfume bottle topped with a stag head stopper in gold in one view (“the Community design”) – and the copyright of the same perfume bottle. The Swedish company requested that the reliefs sought should be rejected.

The Patent and Market Court found that the Community design had an average scope of protection which required the alleged infringing perfume bottle to show more than minor differences to fall outside the scope of protection. However, while assessing infringement, the Court found that the more naturalistic expression and the number of details of the allegedly infringing stag head stopper were sufficient to give the informed user another overall impression than the Community design. Consequently, there was no infringement of the Community design although the court established that there were many similarities between the products.

The Patent and Market Court also rejected the asserted copyright protection for the British company’s perfume bottle. According to the Patent and Market Court, the plaintiff had not shown that the perfume bottle in question was the result of the individual intellectual work of an author and hence not original; neither by overcoming the defendant's claim that the design had been created by artificial intelligence nor by substantiating who and how the perfume bottle had been created.

The British company appealed the judgment with regard to infringement in the Community design, and the Patent and Market Court of Appeal granted leave to appeal.

The Patent and Market Court of Appeal agreed to a large extent with the reasoning of the Patent and Market Court. It also found that the Community design had an average scope of protection and did a thorough review of the similarities and differences between the two perfume bottles. Ultimately, the Patent and Market Court of Appeal agreed with the Patent and Market Court that the differences between the bottles were so great that the average user would be given another overall impression of the allegedly infringing perfume bottle than of the Community design. The appeal was therefore rejected.

Reflections

The above judgment showcases the plural protection of the appearance of a product. Copyright protection can be claimed if the product is a work of applied art and is original. Design rights can be registered for the product, at least to the extent it is new and has individual character.[2] However, despite the fact that the scope of protection of the Community design was of an average grade, the differences in design were sufficient to overcome infringement. In this regard, the fact that only one view of the design had been registered likely impacted the assessment. Therefore, rightsholders are well advised to register multiple views of their designs.

The judgment also highlights that the plaintiff must provide evidence to substantiate the originality of the work and refute arguments of AI involvement in the creation of the design, if the alleged copyright protection is challenged. In an era where AI-generated designs are becoming increasingly common, it underscores the importance of maintaining comprehensive documentation of the design process from inception. Rightsholders should therefore document the creative process thoroughly, and retain evidence of human authorship, as this may strengthen their position in potential infringement proceedings.

In the context of enforcement of design or copyright the judgment supports the conclusion that, at least in Sweden, a thorough assessment of the individual similarities and differences is conducted to conclude if a different overall impression is created and that relatively minor differences could affect the overall impression. However, even where design or copyright infringement cannot be established, other remedies may be available. If the resemblance creates an association with the original in the mind of the consumer, the rightsholder may invoke the prohibition on unfair commercial practices under Swedish marketing law, in particular the rules against exploitation of another's commercial reputation and goodwill (Sw. renommésnyltning) or use of misleading copies (Sw. vilseledande efterbildningar).

In conclusion, while design protection remains a valuable tool for rightsholders, the case demonstrates that a multi-faceted approach combining registered designs, copyright documentation, and unfair competition remedies may be necessary to fully protect their rights against alleged infringement.