Finland: Most relevant IP Supreme court cases 2020-2023

published on 16 May 2023 | reading time approx. 6 minutes 
In this article we would like to highlight two latest decisions of the Finnish Supreme court. First one is dealing with trademark’s infringement and answering the question what exactly is considered as a business activity – especially with regard to use of a trademark. Second decision focuses on access to information and a conflict between author’s right to copyright, processing of personal data and the protection of privacy.


Finnish Supreme court decision KKO 2020:72


Company A owns an international trademark which covers also the area of Finland and applies to class 7 Nice Classification of goods and services, namely machinery technical components (“components”). An individual (“B“) ordered 150 pieces of components from China to Finland. These components were then fitted with the Company's A trademark without Company’s A knowledge or consent.
The components were shortly after being received by B, circulated in Finland and then exported by him to Russia. In compensation for his activities, B received a carton of cigarettes and a bottle of cognac.
The case was brought to the criminal court as an alleged industrial rights crime. Company A demanded restitution for the unrightful use of their trademark, as well as compensation for damage caused by the trademark’s infringement. Company A stated that its trademark is widely known and that B's proceedings in importing low-quality counterfeit products had been likely to cause considerable harm to Company's A reputation.

Applicable law

Pursuant to Section 4 (1) of the Trademarks Act (1964/7, amended 56/2000)[1] no one other than the proprietor of the trademark may use in his business (whether on the goods themselves or on their packaging, in advertising etc.) any symbol that can be confused with the trademark.
According to Article 5 §1 of the Trademark Directive 2008/95/EC[2], the proprietor shall be entitled to prevent all third parties from using any sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is registered.

Referral for a preliminary ruling

The Supreme Court referred following questions for a preliminary ruling to the Court of Justice of the European Union (“Court of Justice“):
  1. whether the amount of benefit received by a private person from an alleged infringement of a trademark is relevant in assessing whether his procedure constitutes the use of the trademark within the meaning of Article 5 (1) of the Trademark Directive.
  2. whether an individual may infringe on the trademark proprietor's exclusive right to the trademark if the person uses the mark not in his own business but as part of another's business activity.
  3. whether, for the definition of importation under the exclusive right of the proprietor of the trademark, the fact that the goods have been imported for further transport to a country outside the European Union is relevant.
In its preliminary ruling, the Court of Justice stated that even if person does not engage in commercial activities professionally but he receives or releases goods for free circulation in a Member State and/or retains goods which are clearly not intended for private use and which are endowed with a trademark without that proprietor’s consent, actions of this person are considered use of the trademark in business activities.
The Court of Justice has held that who owns the components fitted with the trademark is irrelevant in determining if it constitutes a trade activity. The fact that a person has imported and released for free circulation such goods is sufficient to establish that he has carried out those activities in a business activity. It is not necessary to find out in what ways the goods have subsequently been processed. Nor is the size of the reward that the importer has received in return for the actions he has carried out.


The Supreme Court ruled that B has infringed the Company's A exclusive right to the trademark under Section 4 (1) of the Trademark Act. The judgment of the Court of Appeal must therefore be overturned.

Finnish Supreme Court decision KKO 2022:47


Company B demanded that Internet Service Provider A be ordered, under section 60a of the Copyright Act, to disclose to B the subscriber information pertaining to 34 accounts specified by way of IP addresses, as these accounts had been used to make copyrighted material available to the public without authorisation.
The evidence presented by B indicated that each account had been used to make one of four motion picture works available to the public, using BitTorrent technology.
The Market Court[3] had ordered A to disclose the subscriber information regarding five of the accounts and dismissed the rest of the application. Both A and B appealed to the Supreme Court.
The issues at hand before the Supreme Court were whether copyrighted material had been made available to the public to an extent that was significant in terms of copyright protection and whether the legislation governing the processing of personal data and the protection of privacy precluded an order of disclosure of subscriber information by A to B.

Applicable law

According to section 60a(1) of the Copyright Act, the author has the right (notwithstanding the provisions governing secrecy and access to information) to apply for a specific court order by which the operator of a transmitter, server or other similar device must disclose the subscriber information relating to an account that is being used to make copyrighted material available to the public without authorisation and to an extent that is significant in terms of copyright protection.[4] 

No referral for a preliminary ruling

In A’s opinion the Supreme Court should have referred the case to the Court of Justice for a preliminary ruling on the issue whether section 60a of the Copyright Act complies with EU law. 
On the basis of earlier case-law of the Court of Justice the Supreme Court noted that EU law does not preclude domestic legislation on the disclosure of subscriber information. There was no reason to disregard section 60a of the Copyright Act by reference to the primacy of EU law, nor to refer the case for a preliminary ruling.


The Supreme Court stated that to make something available to the public it is sufficient that the public has access to the work at a location of their own choosing and at a time of their own choosing, and it is not crucial whether those persons (public) have made use of this opportunity. 
The issuance of an extradition order within the meaning of Section 60a (1) of the Copyright Act is possible already on the basis of making available just one work.
The Supreme Court has held that making copyrighted material available to the public in this case has been extensive and detrimental to the protection of the author's rights. The disclosure of the contact information in question is consistent with the objective of achieving a fair balance between copyright holder B's right to information and the protection of privacy of users and the right to protection of personal data as part of it. The case cannot therefore be considered to be an obstacle to the disclosure of contact information due to the principle of proportionality.
On the basis of the above criteria, the Supreme Court considers that A must be ordered to disclose to B not only the contact details of the user and the subscriber but also of the communication interfaces for which the application has been rejected by the Market court.


The first decision brings clarification to what constitutes a business activity. The Court of Justice ruled that even if individual B was not engaged in commercial activities, his actions of receiving and circulating goods with Company A's trademark, constituted use of the trademark in business activities. The Court of Justice also stated that ownership of the components and the amount of compensation received by individual B were irrelevant in determining the trademark infringement. Based on the ruling of the Court of Justice, the Supreme Court concluded that B had infringed Company A's exclusive right to the trademark. As a result, the judgment of the Court of Appeal was overturned.
The second case was focusing on whether the Internet Service Provider should be ordered to disclose subscriber information related to the accounts involved in the copyright infringement. The balance between the copyright holder's right to information and the protection of privacy and personal data was being considered. The principle of proportionality played a significant role in the court's decision. In the end, the Supreme Court ordered the Internet Service Provider to disclose the subscriber information as it was in its opinion proportionate to the extent of the copyright infringement.

[1] no longer in force, replaced by the new Trademarks Act (544/2019) section 5
[2] no longer in force, replaced by the new "Trademark Directive" 2015/2436
[3] An independent and impartial special court functioning in the administrative branch of the Finnish Ministry of Justice. The Court deals with cases concerning market law, competition law, supervisory matters, public procurement and intellectual property rights.
[4] Relevant EU legislation appears in Directives 2001/29/EC, 2002/58/EC, and 2004/48/EC, as well as in Regulation 2016/679. The Supreme Court discussed also relevant case-law of the Court of Justice of the European Union (e.g. M.I.C.M., C-597/19, Bonnier Audio, C-461/10, and Promusicae, C-275/06).
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