PROTECTING TRADE DRESS IN NORWAY JURISDICTION REPORT: NORWAY
Lill Anita Grimstad Bryn Aarflot
Tere is no legal definition of ‘trade dress’. But the term is generally understood to mean the overall appearance or commercial presentation of a product, including features such as size, shape, colour or colour combinations, texture and graphics. With no specific legal concept of trade dress, brand owners must choose from a range of legal protections on a case-by-case basis. Norway is not a member of the European Union, but as a member of the European Economic Area (EEA), it is obliged to harmonise laws with EU directives, ensuring the homogeneity of the internal market. Trade dress is protectable in Norway under trademark, design and copyright law, which may overlap to a certain extent. In addition, trade dress infringement may be enforceable under the Copyright Law or the Marketing Practices Act, which implement the EU Unfair Commercial Practices Directive. Norway’s Marketing Practices Act entered into force in June 2009.
Trademark and/or design registration
Trademark protection is regulated in the Trademarks Act of July 2010, which offers protection for a product’s appearance (the shape of the goods, their get-up and their packaging) if it can serve as an indication of origin. However, trademarks that consist exclusively of the shape of the goods or their packaging may not be registered if the shape or the packaging results from the nature of the goods themselves, or is necessary to obtain a technical result, or imparts considerable value to the goods.
Design protection is regulated by the 2003 Designs Act, which gives protection for the appearance of a product or part of a product resulting from its features, in particular, the lines, contours, colours, shape, texture or materials of the product itself or its ornamentation. Product means any industrial or handicraſt item, including parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs.
Design protection may also be obtained for restaurant interiors, employee uniforms and website features.
New designs that possess individual character may benefit from design protection, provided that their appearance is not dictated solely by their technical functions. Industrial designs are conceived as a type of formal innovation relating to the appearance of the goods themselves or their ornamentation, encouraging innovation, development and investment in new products.
Enforcement of infringement
Te main concern of IP owners about copied products is that consumers may be confused over the origin of the goods, and/or the infringer may
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Lill Anita Grimstad is head of legal & litigation and partner at Bryn Aarflot. She can be contacted at:
lag@baa.no
World Intellectual Property Review September/October 2010 89
take unfair advantage of their reputation or commercial efforts. One of the most common cases of unfair competition is where there are concrete differences between two products’ shapes or packaging, but similarities in the overall impression that the products present. Tis oſten occurs when the features are different if examined closely, even if only the key features of the original products have been reproduced. IP owners of valid trademark and/or design registrations in Norway can make infringement claims based on the provisions in the Trademarks or Designs Act. Te situation is more complicated if the IP owner does not have valid registered rights in Norway at all. (Unfortunately, many foreign attorneys and rights holders seem to misunderstand the fact that Norway, even if geographically a part of Europe, is not a member of the EU and, therefore, Community Trademark registration does not give any protection in Norway.) In practice though, unfair competition provisions under the Marketing Practices Act do provide effective protection for trade dress, particularly in cases where copying the packaging or get-up of certain products could take unfair advantage of the legitimate owner’s efforts or reputation. IP owners have several means of enforcing unfair competition law in Norway, through:
• Judicial proceedings • Complaint to the consumer ombudsman/Market Council, or
• Complaint (written proceedings) to the Committee for the Control of Unfair Competition.
“ UNFORTUNATELY, MANY FOREIGN ATTORNEYS AND RIGHTS HOLDERS SEEM TO MISUNDERSTAND THE FACT THAT NORWAY, EVEN IF GEOGRAPHICALLY A PART OF EUROPE, IS NOT A MEMBER OF THE EU AND, THEREFORE, COMMUNITY TRADEMARK REGISTRATION DOES NOT GIVE ANY PROTECTION IN NORWAY.)”
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