Good morning had by Swedish orange juice company

Norway

The Norwegian Supreme Court has ruled that, although it is a common expression, 'god morgon' (good morning) is sufficiently distinctive to be registered as a trademark, thereby overruling a decision by the Patent & Trademark Office to reject Jo-Bolaget Fruktprodukter's application.

In Norwegian Government v Jo-Bolaget Fruktprodukter HB (RT-2002-391), the Swedish defendant, which produces and markets orange juice as 'God Morgon Appelsinjuice med Fruktkjøtt' (Good Morning Orange Juice with Pulp), applied to register the trademark GOD MORGON. The Patent & Trademark Office rejected the application, ruling that the trademark would not be capable of distinguishing the company's goods from those of its competitors, as required by Section 13 of the Norwegian Trademark Act. It reasoned that the phrase 'god morgon', when used in relation to a breakfast product, is too general and therefore lacks distinctive character.

Jo-Bolaget appealed but the Oslo City Court upheld the Patent & Trademark Office's ruling. On a further appeal to the Appeal Court, the lower court's decision was reversed. The Appeal Court found that no provision of the Trademark Act precludes commonly-used words and phrases from being registered as trademarks.

The government appealed to the Supreme Court, which affirmed the Appeal Court's decision. The Supreme Court agreed that the issue was whether the trademark GOD MORGON would be "capable of distinguishing the goods of the holder from those of others", as required by Section 13 of the Norwegian Trademark Act. To interpret this provision, the court referred to the EU Community Trademark Directive, which has been implemented in Norway. The court concluded that GOD MORGON would not be "devoid of any distinctive character" - grounds, under Article 3 of the directive, for refusing registration. Hence, the court ruled that the trademark registration should be granted.

For discussion of a decision by the European Court of Justice reaching an opposite conclusion, see No Community trademark for descriptive word combinations.

Marte Thorsby, Advokatfirmaet Grette DA, Oslo

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