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Amendments to Trademark Laws

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Mai 28, 2020 (Newsletter Issue 8/20)
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Proposed Changes to Trademark Law

The Ministry of Justice and Public Security (the “Ministry”) has issued a proposition to the Norwegian Parliament (Prop. 43 LS (2019-2020) for amendments to the Norwegian Trademark Act, the Norwegian Customs Act, the Norwegian Mortgage Act and legislation on other forms of intellectual property. The proposed amendments aim to harmonise Norwegian legislation with the Directive (EU) 2015/2436 (the “Trademark Directive”), which was incorporated into the EEA Agreement on 7 February 2020.

Some of the key proposed amendments are the following:
- Elimination of the graphical representation requirement, where after the requirement is that the trademark must be reproducible in the trademark register in a clear and unambiguous manner.
- The non-exhaustive list of signs that can constitute a trademark is extended to include further examples, such as colours and sounds.
- The list of absolute grounds for refusal in Section 2, second paragraph, is proposed to be expanded. Signs that consist exclusively of a shape or another characteristic which either results from the nature of the goods themselves, is necessary to obtain a technical result or which gives a substantial value to the goods, may not obtain protection as a trademark, if the proposed amendment is implemented.
- Introduction as a new absolute ground for refusal or invalidity in Section 15 that the trademark application is submitted in bad faith.
- The relevant point in time for assessment of distinctiveness is shifted. Consequently, signs that only acquire distinctiveness through use after the application date but before the Registration date shall no longer be refused.
- Non-use as a defence in opposition and infringement proceedings: Pursuant to the suggested provision, the proprietor of an earlier trademark must upon request from the applicant of the later trademark, prove that the earlier trademark has been put to genuine use in the preceding five-year period. The same applies in relation to claims for injunction against infringers, cf. the proposed Section 57 second paragraph.
- Security in trademark rights: The amendment makes it possible to separate security rights in trademarks from the rest of the business assets, compared to a fee covering the entire business assets of the company.

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