Year in Review 2021: Intellectual Property Rights 

by Nicholas Foss Barbantonis

Published: January, 2022

Media

DNS-blocking of gaming sites proposal
The Ministry of Culture submitted a proposal on 21 September 2021, which seeks to give the Norwegian Gambling Authority cause to force ISPs to enforce DNS blocking of unlicensed gaming sites that market their services to Norwegian players.


Sharing of offensive materials punishable by imprisonment
The Norwegian Penal Code was amended on 1 July 2021 to specifically penalize the dissemination of offensive images, videos and similar (§§ 267a and 267b). Gross sharing of offensive materials is now punishable by imprisonment for up to two years.


Marketing/Unfair Competition

Bank Norwegian – Google Ads
The Norwegian Supreme Court held that the act of purchasing competitors’ trademarks on Google Ads do not constitute a breach of the good business practices provision in the Norwegian Marketing Control Act § 25. Our firm successfully represented the prevailing party.


Stricter marketing of consumer loans
Offerors of consumer loans and credit cards need to provide representative price examples for the applicable amounts elected in loan calculators used in marketing. It is also problematic to include different loan products in one calculator. Marketing of nominal interest ranges from the lowest rate is also problematic in that it might give a misleading impression of the actual interest level.


Trademarks

Descriptive trademarks
The Norwegian Supreme Court held that the specific portion «Stortorvets Gjæstgiveri» (translates to main square guesthouse) of a registered figurative mark containing word elements was descriptive and without inherent distinctiveness. The mark did not provide the holder independent protection as part of the registered mark. The court further held that the wording had not acquired secondary meaning in the relevant consumer sphere in the area the alleged infringement was occurring.


Design

Wheel rim design
The Oslo District Court rejected Audi’s claim that Starco Norge’s marketing and sale of the wheel rim «Angel» infringed Audi’s design rights and that it constituted illegal product imitation and a breach of good practices. The wheel rim spokes differed sufficiently, both in quantity and design, to provide the user a different overall impression. The court also held that the rim could not constitute an illegal product imitation, because there was no confusion risk.


Copyright

Photography use
Borgarting Appellate Court held that VG’s use of a law firm’s portrait photos in an article about the law firm did not trigger a payment obligation. The plaintiff unsuccessfully claimed that the use of the photos was explicitly regulated by the Copyright Act § 36(2), which only permits media reproduction of day event relevant works upon payment. The use was to secure public discourse, the fact that the use related to a day event did not trigger the payment obligation.


Sports videoclips
The Oslo District Court held that VG’s use of videoclips from the German Bundesliga, UFC-fights and Formula 1 infringed the rightsholder’s exclusive rights. VG unsuccessfully claimed that the use was permissible under the Copyright Act § 22(4), which provides access to publish short excerpts from events of great interest to the public. The clips, at the time of use, did not have significant interest among the Norwegian population. Furthermore, the clips did not contain sufficiently extraordinary events to meet the criteria of § 22(4).


 



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