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Last Tuesday, the Swedish Supreme Court ruled in a case regarding whether the storage of goods bearing copyrighted motifs can infringe on exclusive distribution rights.

According to the Swedish Copyright Act (1960:729), any person who takes measures relating to a literary or artistic work which constitutes an infringement of the copyright of that work shall be liable for a fine or a custodial sentence. Such a measure may compromise, for example, exploiting the work by making it available to the public without the rightsholder’s consent. Examples of ways to make the work available to the public are offering the work for sale, rent or loan, or otherwise distributing it. However, it has not been clear whether the storing of goods bearing a copyrighted motif for the purpose of sale means making it available to the public.

In this recent ruling, a retailer ran a shop in Stockholm in which he sold clothes and accessories with rock music motifs. In addition to offering the items for sale in the shop, the retailer stored such goods in the shop and in another storage facility located elsewhere. Criminal proceedings were brought against the retailer, and it was determined that the sale of several of the items infringed on copyrights. A central question was if the stored goods should be regarded as being offered for sale and therefore infringe on exclusive distribution rights. The District Court answered in the affirmative, but the Court of Appeal in the negative. The Supreme Court decided to refer the question to the Court of Justice of the EU, which in its preliminary ruling stated that:

“the storage by a retailer of goods bearing a motif protected by copyright on the territory of the Member State where the goods are stored may constitute an infringement of the exclusive distribution right, as defined by that provision [Article 4(1) of Directive 2001/29], when that retailer offers for sale, without the authorisation of the copyright holder, goods identical to those which he is storing, provided that the stored goods are actually intended for sale on the territory of the Member State in which that motif is protected.”

The Supreme Court decided in accordance with the Court of Justice’s preliminary ruling. It amended the ruling of the Court of Appeal and found the retailer guilty of infringing the Copyright Act with regard to the goods kept in the shop, as well as the goods stored in the storage facility, in so far as identical goods were offered for sale in the shop.

Time Advokatbyrå continuously provides advice within the field of copyright and intellectual property. If you would like to know more or need legal assistance with intellectual property issues, please reach out to our partner Fredrik Ståhl, Head of Intellectual Property.

The ruling in its entirety can be found, in Swedish, under the link below.
http://www.hogstadomstolen.se/Avgoranden/Vagledande-domar-och-beslut-prejudikat/2019/2019-05-28-B-5089-16/