The Oslo City Court recently ruled in the trademark dispute between The Coca-Cola Company and Norwegian soft drink manufacturer O Mathisen AS (OM). The two companies had became embroiled in a trademark conflict after OM introduced a soft drink named Jallasprite. Although the court found in Coca-Cola's favour, it had some doubts as to whether the damage to Coca-Cola was significant enough to warrant a temporary injunction.
In anticipation of the court's decision in the recent trademark infringement case between The Coca-Cola Company and O Mathisen AS, this article looks at the development of the case, which has all of the ingredients to be a memorable trademark conflict. For example, it is a classic example of a David versus Goliath scenario – with a small local company fighting a large multinational. Further, it includes a famous trademark, SPRITE, and has been the subject of media attention.
The Arabic word jalla, which means 'come on, hurry up', was introduced to the Norwegian language by soldiers who served with UN peacekeeping forces in the Middle East. In Norwegian, the word has come to mean 'gaudy' or 'outlandish', but it is also used to indicate that something is of low quality or below accepted or traditional standards. So how did this word become the subject of a trademark conflict between a local carbonated soft drink maker and international giant The Coca-Cola Company?
Under Norwegian patent law, trials necessary for the completion of an invention have been exempted from inclusion in the prior art even if they were performed in a manner that did not enable the inventor to restrict access to a limited group of people. Consequently, inventions that could have been observed by third parties during a trial prior to the filing of a patent application have been patented. However, a recent Oslo District Court decision may be the beginning of the end for the Nordic trial exemption.
The best way for a company to prepare for due diligence is through long-term measures: develop an IP strategy, implement it and maintain a record of the portfolio's status at all times. This should be done with the long-term goal of building value that will be identified and appreciated by a potential investor and reflected in a favourable due diligence report.
In 2017 the Ministry of Justice issued a consultation memorandum regarding various changes to the IP laws. Among the proposed changes was the new rule regarding reversal of the burden of proof if an allegedly infringed patent is for a process used to obtain a product. Although the ultimate fate of this proposal remains to be seen, it is likely that when enforcing such a patent in future, defendants will bear the burden of proof to show that the patented process is not being used.