On the establishment of colour as a trademark

Supreme Court judgment of 11 December 2017, HR-2017-2356-A (case no. 2017/1062), civil appeal, appeal against judgment 

GlaxoSmithKline AS (Counsel Ida Elisabeth Gjessing) v. Sandoz A/S, Novartis Norge AS (Counsel Thomas Gaarder-Olsen)

Justices: Endresen, Webster, Kallerud, Noer, Øie

A manufacturer of pharmaceutical drugs had asserted that two specific shades of purple on a product constituted an established trademark, see the Trademarks Act section 3 subsection 3, and that a competitor was thus banned from using these shades on its corresponding product. The Supreme Court held that a colour trademark can be considered established if the colour well-known as someone's sign. In this case, however, the manufacturer had used a number of different shades of purple in its marketing, which implied that the relevant shades had not been consciously established as a sign for the product. There was also nothing unusual about the use of purple on drugs. These aspects implied that the relevant shade was not perceived as a sign for the relevant drug or for a specific manufacturer. Market surveys that had been carried out suggested the same. The appeal against the court of appeal's judgment in favour of the defendant was dismissed.  

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