Supreme Court judgment of 17 January 2018, HR-2018-110-A (case no. 2017/1490), civil case, appeal against judgment.
Addcon Nordic AS (Counsel Håkon H. Bleken) v. Halfdan L. Solberg (Counsel Thomas Rieber-Mohn)
Justices: Kallerud, Matheson, Bull, Bergh, Tønder
A company selling a silage additive to the fishing industry had after a switch of suppliers attached labels on the packing showing a trademark belonging to the original supplier. The Supreme Court concluded unlike the lower instances that this was an infringement of the trademark proprietor's exclusive right pursuant to the Trademarks Act section 4. The Supreme Court, guided by case law from the European Court of Justice, held that the Trademarks Act section 4 must be interpreted as giving protection only if the use is within one of the functions of the trademark, including its guarantee of origin and quality. However, it was sufficient for establishing infringement that there was a risk that the trademark's functions were infringed by the relevant use. This condition was deemed fulfilled. The fact that the use took place after the sales had been completed and that the company's fixed circle of customers had been notified of the switch of suppliers could not give a different result. The damages payable for the infringement pursuant to the Trademark Act section 58 were stipulated to five percent of the purchase price of the delivery in question, which constituted NOK 80,000.