Protection Against Copying in Norway Without Registered Rights: The Marketing Control Act

Discovering that a competitor is copying a product, brand name, packaging or other commercial material in Norway can be particularly concerning if the business has no Norwegian trademark or design registration. Norwegian law may nevertheless provide protection through unregistered trademark rights, copyright, company-name rights and the rules on unfair competition in the Marketing Control Act (markedsføringsloven).

The absence of a registration does not necessarily mean that the business has no enforceable rights. In Norway, trademark rights may in certain circumstances be acquired through use, while copyright and rights in company names do not depend on trademark or design registration. The Marketing Control Act may also provide a separate or supplementary basis for action.

Protection against unfair copying under the Marketing Control Act

Section 30 of the Norwegian Marketing Control Act specifically addresses imitation of another party’s products and other commercial material.

Section 30 may apply to imitated signs, products, catalogues, advertising materials and other creations. The use of the imitation must, in the circumstances, constitute an unfair exploitation of another party’s efforts or results and entail a likelihood of confusion.

The provision does not establish a general monopoly over products or commercial concepts. Imitation is not unlawful merely because one product resembles another.

The assessment instead depends on the circumstances of the individual case. Relevant factors may include the originality and distinctiveness of what has been copied, the effort or investment behind it, the extent to which the alleged imitator could have chosen a different presentation, the overall similarity, the relevant market and customer group, the original product’s position in Norway and the likelihood that customers will confuse the products or their commercial origin.

Protection is generally more difficult where the similarities result from technical or functional requirements, industry standards or features competitors must remain free to use. Conversely, a close reproduction of distinctive, non-functional features may weigh more strongly in favour of protection, particularly where reasonable design alternatives were available.

The general protection of fair business practices

Section 25 of the Marketing Control Act contains a broader prohibition against acts contrary to good business practice between traders (god forretningsskikk næringsdrivende imellom).

Section 25 can be relevant where the conduct involves a distinct element of commercial disloyalty that is not adequately captured by Section 30 or other specific rules. The provision is not an alternative route that automatically applies whenever the requirements of a more specific rule are not met.

The surrounding circumstances can therefore matter considerably.

For example, the legal assessment may be different where the alleged copying occurs following a previous commercial relationship between the parties, or where other circumstances make the conduct particularly disloyal, from a case involving two entirely independent competitors developing similar products.

Can a business stop copying in Norway without a registered trademark or design?

Yes, in some cases. A Norwegian registration is not always required to challenge copying, but the available claim depends on what has been copied, whether an unregistered right has arisen, the business’s connection with the Norwegian market, the risk of confusion and whether the conduct is commercially unfair. The Marketing Control Act may supplement other rights, but it does not provide automatic protection against imitation.

A company may discover that its product, branding or commercial material is being imitated in Norway despite never having registered the relevant design or trademark here. However, the absence of registration does not exclude the possibility that a trademark right has been acquired through use in Norway, whether nationally or within a more limited geographical area. Copyright, company-name rights and contractual claims may also need to be considered. Alternatively, registered rights may exist but fail to cover every aspect of the conduct concerned.

The absence of a registered right should therefore not be treated as the end of the analysis.

Among the questions that may matter are:

• what has been copied;
• how closely it has been copied;
• the investment and effort behind the original;
• whether and to what extent the original, the relevant sign or the claimant’s commercial activity has established a position in the Norwegian market;
• whether consumers or customers may confuse the products or their commercial origin;
• whether there has been a previous relationship between the parties; and
• the overall circumstances surrounding the alleged copying.

No individual factor necessarily determines the outcome.

Evidence should be secured early. Relevant material may include dated examples of the original and alleged imitation, sales and marketing records, invoices, launch materials, market surveys, website archives, correspondence between the parties, evidence of actual confusion and information showing when and how each party entered the Norwegian market.

Registered IP rights and the Marketing Control Act can overlap

Claims under the Marketing Control Act are not necessarily alternatives to claims based on trademarks, designs, copyright or other intellectual property rights.

The same commercial conduct may raise several legal issues.

For example, the use of a similar product presentation might potentially require consideration of registered design rights, trademark rights, copyright and the Marketing Control Act. The scope and requirements of these forms of protection are different, however, and a claim that fails under one legal basis does not automatically succeed under another.

The appropriate analysis therefore begins with the conduct complained of and the rights and commercial position actually available in Norway.

How can unfair copying be enforced in Norway?

Unlike the consumer-protection provisions of the Marketing Control Act, disputes concerning unfair competition between businesses under Chapter 6 are primarily matters for the businesses themselves to enforce.

Depending on the circumstances, the dispute may be brought before the Norwegian courts. The Norwegian Competition Committee (Næringslivets Konkurranseutvalg) also considers disputes concerning unfair business practices between traders, but its written opinions are non-binding and while most serious businesses will follow the opinions, they are not a substitute for enforceable court relief.

Depending on the legal basis and circumstances, court proceedings may seek measures such as an injunction against continued conduct, interim relief where the statutory requirements are met, compensation or damages, and orders addressing infringing material. The remedies available must be assessed separately for each claim.

Where the conduct is ongoing, the enforcement strategy will depend on the urgency of stopping it, the strength of the available evidence, the risk of continuing market harm, the identity and location of the alleged infringer and the remedy required. A preliminary injunction (midlertidig forføyning) can be obtained at short notice, in urgent cases without the other party first being heard. However, if the injunction later proves unjustified, the party that obtained it is liable for the resulting loss regardless of fault, so the strength of the claim should be assessed carefully before applying.

Before bringing ordinary court proceedings, the claimant must normally notify the other party in writing of the claim and its basis, and give it an opportunity to respond. Failure to do so may count against the claimant when costs are decided.

Frequently asked questions

Does an EU trademark or EU design protect my product in Norway?

No. Norway is not a member of the European Union, and EU trademarks and EU designs, registered or unregistered, do not extend to Norway. Protection in Norway requires a national registration, a Madrid designation of Norway, or rights that arise without registration under Norwegian law.

Is it unlawful to copy a product in Norway?

Not as such. Under section 30 of the Marketing Control Act, using an imitation is unlawful where it amounts to an unfair exploitation of another party’s efforts or results and creates a likelihood of confusion. Features that are functional or that competitors must remain free to use are generally not protected.

What is Næringslivets Konkurranseutvalg?

An industry body that gives written opinions on disputes about unfair business practices between traders. Its opinions are not binding and cannot be enforced, but they can be a quicker and less expensive way of obtaining an independent view.