Gas reseller may not use another party's trademarked bottles

In BP Gas A/S v Viking Gas A/S (Case V-182-05, December 21 2006), the Maritime and Commercial Court has held that a party that purchases a branded item does not obtain the right to use the bottle (or any other packaging) bearing a trademark for the delivery of other, similar goods, which thereby might appear to be the original goods.

Since 2001 BP Gas A/S has been marketing bottled liquefied petroleum gas in Denmark in a lightweight composite bottle. The bottle is manufactured by Ragasco A/S, a Norwegian company, and is registered as a three-dimensional trademark. The bottle is sold in Denmark according to an agreement between BP and Ragasco, whereby BP is the sole dealer and holds an exclusive licence to use the composite bottle as a trademark. The bottle sold by BP in Denmark also bears a trademark designation that BP engraves into the bottle.

Viking Gas A/S owned a gas-filling station and had filled and sold some of the composite bottles, which it had marked with a label bearing its trademark VIKING GAS.

It was uncontested that the bottles became the property of the consumers when they bought them from BP and that consumers could get the bottles refilled by any party. However, the system worked by the consumer delivering an empty bottle to a Viking dealer, who handed over a full bottle in exchange. Thus, the consumer believed that he or she was buying a bottle of gas.

BP obtained an interim injunction against Viking and asked the Maritime and Commercial Court to confirm the injunction.

The court held that Viking's business was to sell gas and that the composite bottle was merely packaging. It held that a party that purchases a branded item does not obtain the right to use the bottle (or any other packaging) bearing a trademark for the delivery of other, similar goods, which thereby might appear to be the original goods.

Therefore, the court found that Viking had violated BP's trademark on, and Ragasco's trademark rights in, the bottle. It also held that Viking had acted in violation of the Danish Marketing Practices Act.

Although BP did not prove that it had suffered loss, the court ordered Viking to pay BP Dkr75,000 for the use of its trademark, bearing in mind Viking's small market share.

Mads Marstrand-Jorgensen, Norsker & Co, Copenhagen