Evidence in IP Trials in the Nordics: Access to and Seizure of Evidence – Perspectives from Sweden

Wendela Hårdemark

Evidence in IP Trials in the Nordics: Access to and Seizure of Evidence – Perspectives from Sweden

By Wendela Hårdemark

From Nordiskt Immateriellt Rättsskydd nr 4 2024

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Evidence in IP Trials in the Nordics: Access to and Seizure of Evidence – Perspectives from Sweden

By Wendela Hårdemark[*]Partner, Bird & Bird Advokat KB.

1. Introduction

One of the foundational principles of procedural law is the requirement for parties to provide proof to support their claims. However, the access to evidence, the manner in which it is presented, and the admissibility of such evidence differ across jurisdictions.[1]For a more in-depth analysis of the different doctrines on access to evidence see, Westberg, Peter, Anskaffning av bevisning i dispositiva tvistemål, (2010, JUNO) and in particular sections B–D. Under Swedish procedural law, the prevailing principle is that a party is only obligated to present evidence in support of its own claims, without necessarily considering the interests of the opposing party.[2]Cf. SOU 1926:33 p. 14 ff. Consequently, Swedish law imposes limited obligations upon parties to disclose evidence that could potentially benefit the other party’s case.[3]See Chapter 42 Section 8 last paragraph of the Swedish Code of Judicial Procedure that has been rarely applied in cases and in view of the adversarial nature of Swedish proceedings seems odd.

This article focuses on the specific measures available under Swedish law to obtain and secure evidence in intellectual property (IP) proceedings: infringement investigation and order to provide information. These measures were introduced into Swedish law partly due to the harmonization of IP enforcement measures across the European Union[4]See in particular the directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02004L0048-20040430, in the following the Enforcement Directive. and can be used in tandem with general procedural measures for obtaining evidence, such as production of evidence, taking of evidence for future security, court appointed experts and exploration.[5]See inter alia Chapter 38 Section 2 and Chapter 41 of the Swedish Code of Judicial Procedure. These measures are intended to preserve evidence that is known to be in the possession of the opposing party or a third party and generally assume that proceedings have already been initiated.[6]Further on the differences between preservation and investigation of evidence see Ekelöf, Per Olof, m.fl., Rättegång. Fjärde häftet, (2016, JUNO), p. 309 ff.

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