Abstract
Being one of the northernmost countries in Europe, with an extensive coastline and with little opportunity for large-scale agriculture, facilitating for international trade and at the same time protecting Norwegian agriculture is of essential interest to Norway (This chapter was written in January 2015). Like in many other countries, the Norwegian customs tariffs function as effective barriers to trade, ensuring that imported products potentially threatening domestic agricultural products are not sold at lower prices than domestic products. International trade is however crucial as the Norwegian consumption presupposes extensive import of food. Instead of joining the EU, principally in order to protect agricultural and fishery resources, Norway has chosen to remain a member of the EFTA and a party to the EEA Agreement. As part of the internal market, a consequence of the EEA Agreement, many of the EU rules relating to foodstuffs are applicable, but also domestic rules with no equivalent EU legislation apply. Norway has traditionally been, and still is, one of the strictest countries in Europe when it comes to e.g. marketing towards children.
Investing in product development and innovation is important to most food suppliers. Protecting intellectual property and thus competitive advantages appear to be of growing interest. Up till now the legal battles between the market players have mainly been about packaging design and unfair business practices.
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Notes
- 1.
Eurostat Database, European Commission, http://epp.eurostat.ec.europa.eu/portal/page/portal/household_budget_surveys/Data/database.
- 2.
European Free Trade Association (EFTA) of 1960. Jan. 4, 1960, available at www.efta.int/sites/default/files/documents/legal-texts/efta-convention/Vaduz%Convention%20Agreement.pdf.
- 3.
Id., p. 2.
- 4.
Agreement on the European Economic Area (EEA Agreement), May 2, 1992.
- 5.
EEA Agreement, 4, Article 102.
- 6.
Rt. 2002, p. 391 (God Morgen), Rt. 1997, p. 1954.
- 7.
EEA Agreement, see supra n. 4, Article 102(5).
- 8.
“About the EEA and Norway Grants”(“Hva er EØS-midlene?”) http://www.regjeringen.no/nb/sub/europaportalen/eos-midlene.html?contentid=685567&id=684349.
- 9.
EEA Agreement, 4, Protocol 3.
- 10.
EEA Agreement, 4, Protocol 9.
- 11.
For more information on TTIP and the underlying concerns, see http://ec.europa.eu/trade/policy/in-focus/ttip/ and http://www.centerforfoodsafety.org/files/cfs_trade_matters_76070.pdf.
- 12.
Regulation on Reduction of Customs Tariffs of 2005, Chapter 2. (emphasis added).
- 13.
Regulation on Reduction of Customs Tariffs of 2005, Chapter 3.
- 14.
Regulation on the Allocation of Tariff Quotas for Agricultural Products of 2008.
- 15.
Regulation on the Determination of Discounted Tariffs for Imports of Industrially Processed Agricultural Products, 2013.
- 16.
Generalized System of Preferences of 2008.
- 17.
Regulation on the Reduction of Customs Tariffs on Agricultural Products of 2005, Chapter 3.
- 18.
Id. at Section 15.
- 19.
Regulation on the Market Regulation to Promote the Trade of Agricultural Products (2008).
- 20.
Id. at Sec. 3-3.
- 21.
Judgment of Borgarting Court of Appeal of 15 January 2007.
- 22.
Act on the Trade of Agricultural Products of 1936, Section 1.
- 23.
The committee delivered its report in June 2015. The committee unanimously agreed that the market regulation in place should not be abolished. However, the committee split into three factions that each recommended alternative models for the future which varied with regards to, amongst others, to what extent one should allow the strong cooperatives to take part in the regulation.
- 24.
Act on Foodstuffs of 2003.
- 25.
Regulation on the quality of milk and cream of July 17, 1953; Regulation relating to the manufacturing, labelling and sale of cheese of August 24, 1956; Regulation on the manufacturing, labelling and sale of butter and butter fat of November 16, 1962; Regulation on the manufacturing, labelling and marketing of edible ice of April 15, 1977; and Regulation on vegetable conserves of January 1, 2001.
- 26.
Cf. the request for comments of 1 November 2013 by the Norwegian Food Safety Authority (only available in Norwegian) which can be found here: http://www.mattilsynet.no/mat_og_vann/merking_av_mat/generelle_krav_til_merking_av_mat/horingsbrev.11601/binary/Høringsbrev. All of the before mentioned regulations was cancelled on 1 January 2016. The regulations relating to butter, edible ice and vegetable conserves have not been continued. The most important parts of the regulations on milk, cheese and butter have been continued in the Regulation on the quality of milk and milk products of 3 June 2015 (in effect from 1 January 2016).
- 27.
Regulation (EC) No. 178/2002 (The General Food Law Regulation) of Jan. 28, 2002, 2002 O.J. (L31/1).
- 28.
Act on Implementation of the main part of the Agreement on the European Economic Area (EEA) into Norwegian law, of 27 November 1992, Section 2.
- 29.
The Act on the Sale of Alcoholic Beverages of 2 June, 1989, Section 9-2.
- 30.
Regulation of June 8, 2005, Chapter 14.
- 31.
Act Relating to the Prevention of the Harmful Effects of Tobacco of March 9, 1973, Section 22.
- 32.
As of February 2nd 2015.
- 33.
Regulation (EU) No 1169/2011 of the European Parliament and of the Council of October 25, 2011,. 2011 O.J. (L304) 18.
- 34.
Food Act, Section 10.
- 35.
Food Act, Section 10.
- 36.
“Villedende merking – Kampanje 2013” (Misleading labelling – Campaign 2013).
- 37.
Marketing Control Act of January 9, 2009.
- 38.
Marketing Control Act, supra n. 37, Sec. 25.
- 39.
Marketing Control Act, supra n. 37, Sec. 26.
- 40.
Regulation on Comparative Advertising.
- 41.
Marketing Control Act, supra n. 37, Sec. 2.
- 42.
Letter from EFTA Surveillance Authority to the Ministry of Trade and Industry, “Comments by the EFTA Surveillance Authority to Norway concerning notification 2013/9005/N”, dated 17 July 2013.
- 43.
Industry Guideline (June 5, 2013).
- 44.
For evaluation of self-regulatory regimes vs. legally binding regulations, see e.g. Garde and Bartlett (2013).
- 45.
The opinions are available in Norwegian on the Internet at http://mfu.as/39309-Aktuelt (last accessed 9 Jan 2015).
- 46.
Cf. the Guidelines clause 2, 7.
- 47.
Dispute Act No. 90 of June 17, 2005.
- 48.
Nye produkter i butikken – noen fakta (2014). http://www.dagligvarehandelen.no/nye-produkter-butikken-noen-fakta/.
- 49.
Prop. 81 L (2012–2013), pp. 1 and 42.
- 50.
Copyrights, business names, and domain names may also constitute potential legal basis for claiming protection for food suppliers. Copyrights and rights to business names are regulated in respectively the Norwegian Copyright Act of May 12, 1961, and the Norwegian Business Names Act of June 21, 1985. Domain names are protected by registration, for example, Norid (see www.norid.no).
- 51.
Trademarks Act, Act No. 8 of March 26, 2010, Clause 4.
- 52.
Id.
- 53.
Id. at Clause 2; The Norwegian Trademarks Act of March 26, 2010 implements Directive 2008/95/EC.
- 54.
EU Council Regulation No 207/2009 of Feb. 26, 2009, OJ (L78) 24.3.2009.
- 55.
When protection is established by use, the possibility of acquiring a registration depends on whether the mark is well known as someone’s brand within the relevant goods’ and services’ circle of trade in Norway, cf. the Trademarks Act, Clause 3.
- 56.
Trademarks Act, supra n. 47, Clause 14.
- 57.
Id. at Clause 3.
- 58.
Id. at Clause 32.
- 59.
Id. at Clause 37.
- 60.
Rt. 1995, s.1908.
- 61.
Id. (Rt. 1995, s.1908).
- 62.
The Trademarks Act, supra n. 47, Clause 14.
- 63.
Jo-Bolaget Case.
- 64.
The Oslo District Court ruling of 2005 (TOSLO-2003-18673) says that Jo-Bolagets trademark—even though registered—offers only weak protection, and thus the court did not consider a competitor’s use of “God morgen” on their products as an infringement of Jo-Bolagets’ exclusive rights.
- 65.
See Birger Stuevold Lassen and Are Stenvik, Kjennetegnsrett, 2011, page 70. For ECJ practice see e.g. Case C-53/01 Linde, and Case C-104/01 Libertel.
- 66.
Norwegian Patents Act (Patents Act) No. 9 of December 15, 1967, WIPO Lex No. NO056.
- 67.
Id. at Sec. 40.
- 68.
Id. at Sec. 52.
- 69.
Id. at Sec. 66c.
- 70.
For the time being there is on-going work within the EU relating to the creation of a unitary patent for Europe and a specialised patent court (UPC—“Unified Patent Court”) that has exclusive jurisdiction for litigation relating to European patents and European patents with unitary effect. This work will not have any effects with regard to Norway.
- 71.
Act on the Right of Inventions (September 1, 1970), Section 4.
- 72.
Norwegian Copyrights Act, Section 39g.
- 73.
3D trademarks will give protection to the visual layout. Practise illustrates that the threshold for 3D marks are strict as it is the design that needs to fulfil the principal requirement on distinguishing goods, but if obtained provides for a strong protection as the protection period may be indefinite, cf. e.g. Case C-468/01 Procter & Gamble and Case C-286/04 Eurocermex.
- 74.
See Design Registration No. 084229 and No. 083329.
- 75.
The Act implements Directive 98/71 EC on the legal protection of designs; Norwegian Designs Act (Designs Act) of Mar. 14, 2005.
- 76.
Designs Act, supra n. 67, Sec. 3; Priority may be claimed within six months after the first application was lodged, or after the exhibition of the design at an official or officially recognized international exhibition, cf. the Designs Act, Clause 16.
- 77.
Designs Act, 67, Sec. 6.
- 78.
Council Regulation (EC) No 6/2002 of Dec. 12, 2001.
- 79.
Madrid Agreement Concerning the International Registration of Marks (June 27, 1989).
- 80.
Designs Act, supra n. 67, Sec. 23.
- 81.
Marketing Control Act, supra n. 37, Sec. 25.
- 82.
Id. at Sec. 30.
- 83.
Even though there cannot be established a violation towards the involved intellectual property right, the Marketing Control Act may be used as a legal basis to prevent others from unreasonably exploiting your rights. However, the Supreme Court has stated (e.g. in the Mozell-case) that if section 30 is not applicable because confusion is not established, the use of section 25 presupposes that there are other facts to the case which goes beyond the exploitation as such. This because section 25 is a general prohibition contrary to section 30 which is a special provision, and therefore section 25 shall not be applied on exactly the same conditions as this would be contrary to the system of the Marketing Control Act.
- 84.
Marketing Control Act, supra n. 37, Chapter 9.
- 85.
Id. at Sec. 6.
- 86.
See e.g. Case No. 15/2010, Case No. 18/2011, and Case No. 01/2013.
- 87.
The Ice-cream Packaging Case. Case No. 13/2010.
- 88.
The Pastilles Case. Case No. 20/2011.
- 89.
Marketing Control Act, supra n. 37, Sec. 28.
- 90.
(1971–1972), p. 24.
- 91.
The Norwegian Regulation on the Application of the Competition Act § 10 subsection 3 on categories of Technology Transfer Agreements, of 6th July 2006.
- 92.
Marketing Control Act, supra n. 37, Sec. 29.
- 93.
Norwegian General Civil Penal Code, Act No. 10 of May 22, 1902, WIPO Lex No: NO040. Sec. 294.
- 94.
Regulation on the Protection of Designations of Origins, Geographical Indications and Designations of Traditional Character of Foodstuffs (July 5, 2002).
- 95.
Regulation on the Protection of Parmigiano reggiano (April 20, 2012).
- 96.
Regulation (Keyhole) of June 17, 2009.
- 97.
Regulation on Organic Production and Labelling of Organic Agricultural Products and Foodstuffs (Oct. 28, 2005) Section 4, referring to Council Regulation (EEC) No. 2092/91 on Organic production of agricultural products and indications referring thereto, on agricultural products and foodstuffs, OJ 1991 L 198/1.
- 98.
Trademarks Act, supra n. 50, Sec. 2.
References
About the EEA and Norway Grants (“Hva er EØS-midlene?”) http://www.regjeringen.no/nb/sub/europaportalen/eos-midlene.html?contentid=685567&id=684349
Act on Foodstuffs (2003)
Act on Implementation of the main part of the Agreement on the European Economic Area (EEA) into Norwegian law (1992), sec. 2
Act Relating to the Prevention of the Harmful Effects of Tobacco (1973), sec. 22
Act on the Right of Inventions (September 1, 1970), sec. 4
Act on the Sale of Alcoholic Beverages (1989), sec. 9-2
Act on the Trade of Agricultural Products (1936), sec. 1
Agreement on the European Economic Area (EEA Agreement), (1992)
Agreement on the European Economic Area (EEA Agreement), 4, protocol 3
Agreement on the European Economic Area (EEA Agreement), 4, protocol 9
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Allocation of Tariff Quotas for Agricultural Products, regulation (2008)
Application of the Competition Act § 10 subsection 3 on categories of Technology Transfer Agreements, regulation (2006)
Business Names Act (1985)
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Case No. 18/2011
Case No. 01/2013
Case C-104/01 Libertel (ECJ practice)
Case C-53/01 Linde (ECJ practice)
Comparative Advertising, regulation
Copyright Act (1961), sec. 39g
Council Regulation (EC) No 6/2002 of Dec. 12, 2001
Dagligvarehandelen.no (2014). http://www.dagligvarehandelen.no/nye-produkter-butikken-noen-fakta/
Design Registration No. 084229 and No. 083329
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Designs Act (2005) The Act implements Directive 98/71 EC on the legal protection of designs
Determination of Discounted Tariffs for Imports of Industrially Processed Agricultural Products, regulation (2013)
Dispute Act No. 90 (2005)
EC regulation No. 178/2002 (The General Food Law Regulation). 2002 O.J. (L31/1)
EC regulation No. 207/2009, OJ (L78) 24.3.2009
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General Civil Penal Code, Act No. 10 (1902), WIPO Lex No: NO040, sec. 294
Generalized System of Preferences (2008)
Guidelines clause 2, 7
Ice-cream Packaging Case. Case No. 13/2010
Industry Guideline (2013)
Jo-Bolaget Case. Oslo District Court ruling (2005) (TOSLO-2003-18673)
Judgment of Borgarting Court of Appeal of 15 January 2007
Keyhole, regulation (2009)
Labeling of Food, regulation (1993), sec. 5
Lassen, Birger Stuevold and Stenvik, Are, Kjennetegnsrett (2011) p 70
Letter from EFTA Surveillance Authority to the Ministry of Trade and Industry, “Comments by the EFTA Surveillance Authority to Norway concerning notification 2013/9005/N”, dated 17 July 2013
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Manufacturing, labelling and marketing of edible ice, regulation (1977)
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Manufacturing, labelling and sale of cheese, regulation (1956)
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Protection of Designations of Origins, Geographical Indications and Designations of Traditional Character of Foodstuffs, regulation (2002)
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Quality of milk and cream, regulation (1953)
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Rt. (1997) p 1954
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Trademarks Act, supra n. 50, sec. 2
Trademarks Act (2010) implements Directive 2008/95/EC
Vegetable conserves, regulation (2001)
“Villedende merking – Kampanje 2013” (Misleading labelling – Campaign 2013)
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Vaale-Hallberg, M., Lindbach, N.C. (2016). Food Law in Norway: Trade, Food Promotion, and Protection of Intellectual Property Within the Food Industry. In: Steier, G., Patel, K. (eds) International Food Law and Policy. Springer, Cham. https://doi.org/10.1007/978-3-319-07542-6_27
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