|Conditions in Swedish jails|
are reputed to be good. Here
Sven tests out the sleeping
The Supreme Court initially stated that, while the primary objective is to protect the rights of trade mark proprietors, when it comes to assessing a "penal value", third-party interests should also be considered, because trade mark infringement may both mislead and harm consumers. This statement is a positive step in the protection of brands and consumers, since it was previously unclear whether third-party interests had any impact on penal value. The Court added that
- the infringement was of considerable magnitude,
- the defendant had criminal intent,
- the defendant was aware of the risk to third parties, and
- the defendant's objective was clearly to benefit financially from the infringement.
|The ultimate penal value: having|
to listen to a looped tape of ABBA
singing Fernando ...
The IPKat would like to believe that, while the presumption against imprisonment should be respected, the courts will be prepared to rebut that presumption whenever the facts of an individual case merit it, for example when the consequence of the infringement is the death or serious injury of one or more consumer.
Merpel disagrees vigorously. In her view criminal law must punish the act, not its consequence: the sale of fake ball bearings is the same act regardless of whether it causes no damage at all, damages a machine or kills a person.