Compensation for trademark infringement on the Internet

A company that sells PVC fencing to consumers, used the trademarks of two competitors in the headline of its ads on Google and Bing, in violation of the competitors' trademark rights. The competitors demanded financial compensation, see section 58 of the Trademarks Act. The Supreme Court's starting point was that the court must consider all stipulation alternatives in section 58, but that it would be sufficient to make a more general assessment of which alternative it was appropriate to use. The documentation in the case did not provide a sufficient basis for stipulating damages for the competitors' loss of profits. There was also no documentation that could substantiate the claims for compensation for market disturbances and impaired goodwill. There was also uncertainty about how a reasonable license fee should be calculated, and the Supreme Court therefore chose to determine the fee as a discretionary lump sum. This was set at NOK 400,000 for each of the two competitors. As the act had been grossly negligent, see section 58 subsection 2 of the Trademarks Act, the fee was set at NOK 800,000 for each of them.

Read the whole judgment (Norwegian only)

Areas of law: IPR, trademark law

Key paragraphs: 56, 60, 64, 83, 84, 91–93, 103

Justices: Noer, Ringnes, Arntzen, Høgetveit Berg, Steinsvik