The brewery has used the name “Arctic Water” since they applied to have it registered as a trademark in the mineral water class 25 years ago. At the time, they were given the green light and the exclusive right to use the name – although the Norwegian Patent and Trademark Office was somewhat dubious. But now it’s stopped. – Previously, people were afraid of being copied from China, but this shows that copycat companies can wreak havoc in Norway even without the protection you thought was actually there. That’s what the Managing Director of Mack Ølbryggeri AS, Roger Karlsen, says. – With this, the Patent Office opens up for those who copy other people’s work, and are unable to create something of their own, he says. Managing director of Mack Ølbryggeri AS, Roger Karlsen, believes the decision creates uncertainty for those who want to build up brands in Norway. Photo: Macks Ølbryggeri AS The case was first discussed by Rett24. Complained by a competitor It was Lofoten Arctic Water AS that first complained that Mack had exclusive rights to this name. It’s a bit complicated, but try to keep up: After the complaint, the Swedish Patent Office concluded in 2021 that Mack’s trademark should be set aside as invalid. Mack complained about this decision to the Complaints Board for Industrial Affairs (KFIR), but the complaint was rejected. Thus, Mack brought a lawsuit against KFIR. The Oslo district court concluded that Mack cannot keep the name as a registered brand, and supports the assessments made by the Patent Office and KFIR. That means anyone can now market their product as “Arctic Water”. – The court has come to the conclusion that the Arctic water trademark lacks distinctiveness and is descriptive. That means it can be used freely. That is what the competitor Lofoten Arctic Water AS wants. The trademark registration in the EU has also been cancelled, says Knut Andreas Bostad, head of section at the Patent Office. Lofoten Arctic Water complained that Mack had patented the name Arctic Water. Now they are allowed to use it too. Illustration: Lofoten Arctic Water AS Believes customers will believe that the water is from the Arctic The court points out that the decisive factor in the case is whether the Arctic is a geographical indication of location, and concluded that it is. The court points out that some customers will perceive it to mean that the mineral water originates from water sources in the Arctic. They also emphasize that the average consumer will, among other things, associate the Arctic with large, untouched and cool natural areas with ice. The Oslo district court believes that it is not descriptive of the actual product from Troms. Thus, they concluded that the registration of the trademark “Arctic Water” is invalid. This is the Arctic: the Arctic, the sea and land areas around the North Pole. The central part of the Arctic is the Polar Basin, which together with the peripheral oceans is usually called the Arctic Ocean. Large parts of the Arctic Ocean are covered with drift ice. The extent of the ice is roughly twice as large in early spring as in late summer. Farthest to the north is the ice boundary in the Svalbard – Barents Sea sector, farthest to the south off the east coast of the continents, where cold currents from the north carry the drift ice with them. Large areas of the marginal seas are usually completely or partially free of ice for a few months in the summer season, and even in the central Polar Basin there are patches and stretches of open water here and there. The Arctic can be defined in several different ways – according to the extent of the permafrost, the Arctic Circle, the 10 °C isotherm, the tree line and/or according to the salinity limit in the sea. The sea areas in the Arctic alone are 1.5 times larger than the USA, and in addition there are the large land areas in Greenland, in Canada, the USA, Russia and Norway. Source: Great Norwegian Lexicon. Considering appealing CEO of Mack Ølbryggeri AS, Roger Karlsen, says they are now considering whether to appeal the case. – We have spent a lot of time and money building up this brand. I think it is worrying that the Norwegian Patent and Trademark Office changes its rules of the game along the way, and that we lose this trademark right overnight, he says. Karlsen believes the decision creates uncertainty for those who want to build up brands in Norway. For its part, Lofoten Arctic Water AS believes that the decision is completely correct. They received a demand from Mack that all use of the term “ARCTIC WATER” in the company name Lofoten Arctic Water AS and as an element of their brands should cease in Norway, the EU and the UK. – We made it clear to Mack that we would not make any push towards a review of their trademark registration, if the claim was waived. This was not accommodated on several occasions by Mack, and we then had no choice but to take the matter to the Patent Office. We have now been approved in three instances, says board member Fredrik Williksen. May have significance in other cases According to Bostad in the Patent Board, the court’s assessments may also have significance in other cases. – This decision applies to the specific case. But the court states that the “Arctic” will be perceived as a place for water, and that may have implications for other cases, he says. Section chief at the Patent Office, Knut Andreas Bostad, says they have to assess concretely in each individual case when someone applies. Photo: Trond Isaksen / The Norwegian Patent Board Bostad says that they have refused certain brands with “Arctic” and descriptive text. – We would, for example, deny Arctic Destinations travel business (constructed case). – We have to look it up against the goods and services applied for, and must be assessed concretely in each individual case. “Arctic” for financial services is probably not descriptive. It will only pretend to be cold, but can be registered.
ttn-69
Macks Ølbryggeri is not allowed to keep “Arctic Water” as a registered trademark – news Troms and Finnmark
