Ett fel utan regel - En analys av tolkningen av immaterialrättsliga fel utifrån köplagen och CISG

Sammanfattning

The subject of the thesis is the question of how intellectual property-related defects should be assessed within the framework of Swedish sale of goods law, regarding the fact that it lacks an explicit regulation of this type of defect. Within the classical system of sale of goods law, a distinction is drawn between factual defects, legal defects, and defects relating to restrictions on use. Intellectual property defects, however, occupy a distinct position, as they do not easily fit within these established categories. Such a defect arises when the buyer’s use or resale of the goods constitutes, or entails a risk of, infringement of a third party’s intellectual property right, such as a patent, trademark, or copyright. The purpose of the thesis is to analyse which interpretative sources may contribute to an appropriate assessment of intellectual property defects in Swedish law. Against this background, the thesis examines how current law addresses such defects through the general defect provisions of the Swedish Sale of Goods Act, particularly section 17, and to what extent Article 42 CISG may serve as guidance in the interpretation of national law. It also addresses whether there are grounds for introducing a specific regulation for this type of defect. The study is conducted using the legal dogmatic method, whereby applicable law is identified and critically analysed based on legislation, preparatory works, and legal doctrine. The analysis shows that intellectual property defects in Swedish law are, in practice, assessed within the framework of the general defect rules of the Sale of Goods Act, resulting in an essentially objective seller liability. This may be considered burdensome, since intellectual property rights are often difficult to identify in advance, particularly unregistered rights. The thesis therefore examines whether such defects should be treated uniformly within sale of goods law or whether their specific characteristics call for a more autonomous assessment, which also highlights the need for a specific regulation. Against this background, Article 42 CISG is analysed, as it provides a specific regime for intellectual property claims in international sales. The provision reflects a more subjective approach, considering the seller’s knowledge, intended use, and the buyer’s awareness and instructions. Although not directly applicable, it offers relevant interpretative principles. The thesis concludes that neither a strictly objective nor a fully subjective liability model is appropriate. Instead, a nuanced approach inspired by Article 42 is proposed, and a specific regulation combining section 17 with Article 42’s differentiated liability is considered the most suitable solution.