Broadcaster and telecommunications company in battle for 3

Swedish broadcaster TV3, the owner of the TV3 mark, has filed trademark infringement proceedings against telecommunications company HI3G over its use of the trademark 3 in conjunction with internet content provider services for mobile phones (Case T 10412-03). TV3 also provides internet content, particularly through the medium of television and it claims that HI3G's use of the 3 mark is causing confusion in the market. The dispute is an illustration of the convergence between the differing types of media and technical platforms capable of providing internet content.

HI3G's national and international trademark registration applications for 3 are still pending, which will make the task of defending its alleged infringement all the more difficult.

An interesting feature of the dispute is the fact that TV3 is attempting to rely on an internet-based market survey to demonstrate that there is a likelihood of confusion between the two marks. Using the Internet as a means of conducting market surveys is a relatively new phenomenon in Swedish trademark rights litigation. In its submissions HI3G heavily criticizes this method as, in its view, it lacks accuracy and there is an increased risk that the pollees are susceptible to undue influence.

The outcome of the case is eagerly anticipated as both marks have limited inherent distinctiveness. There have been relatively few disputes involving marks with limited inherent distinctiveness in Sweden in recent years. (A notable exception is the case between the Swedish Post Office and its German counterpart - Danzas - over the use of a particular shade of the colour yellow.) A few years ago the French broadcaster TV5 initiated proceedings against the Swedish broadcaster Femman (meaning 'five') and similarly the Swedish public service broadcaster P 4 was involved in litigation with another radio broadcaster using the designation P 6. Both cases were ultimately settled out of court and differ from the 3 dispute in that they concerned identical services.

Peter Skoglund and Henrik Bengtsson, Advokatfirman Delphi & Co, Stockholm