Företagsnamnet som varukännetecken : En rättsvetenskaplig studie av det korsvisa skyddet

Sammanfattning: The rationale behind intellectual property protection of signs is that they are used commercially. Signs can among other things be a company name or a trade mark. The uses of company names and trade marks in the market often overlap, especially for well-known signs. For the consumer, the sign outside a McDonald’s is equally comprehended as representing the burgers and services inside as it is the business. Due to this overlapping use and the historically close relationship between company names and trade marks, the Swedish Trade Marks Act (2010:1877) grants company names the same protection as trade marks and vice versa in the Company Names Act (2018:1653). This cross-protection is explained by the legislator to be automatic. In other words, a company name is protected as a trade mark even in cases where its function is not the same as the trade mark’s function, which is as an indicator of the origin of goods and services. The function of a company name is not to indicate the origin of goods and services, but rather to identify and establish the legal entity according to company law and, when used as a trade name or sign, to indicate the business according to the Company Names Act.This legal study considers these issues from the perspective of company names and analyses the legal concept of the cross-protection under Swedish law. The overall aims of this study are to consider and analyse the legal coordination between company names and trade marks, and to examine the extent to which this complies with the EU harmonized trade mark law. Two hypotheses are tested: 1. there is an imbalance in how the legal concept of signs is applied to company names and trade marks; and 2. the automatic protection of company names as trade marks is not in compliance with EU harmonized trade mark law. This study also aims to present a legislative solution de lege ferenda. To fulfil the aims of the study, current law has been examined taking into account historical, societal and legal developments – as well as market realities – in Sweden, the EU and internationally.The conclusions of this study are that both hypotheses are substantiated and that the cross-protection in Swedish law is excessive, as it gives protection to company names that goes beyond their true functions both in company law and under the Company Names Act. The imbalance between company names and trade marks as signs means that company names are given wider protection than equivalent trade marks. Since the functions of a company name are not the same as the functions of a trade mark, it is not in compliance with the EU harmonized trade mark law to give company names automatic protection as trade marks.