The Supreme Court rejects the appeal in favor of Bank Norwegian
The case concerned the use of competitor’s brands in key word advertising on Google. Ikano Bank and two banks in the consumer loan market demanded that Bank Norwegian’s advertising on the Internet using the banks’ characteristics as paid keywords should be prohibited pursuant to the general clause of the Marketing Act. The principle character of the case was demonstrated by the support from Virke, The Federation of Norwegian Enterprise, in favor of the three claimants. Bank Norwegian was supported by Google LLC.
In the judgment of 14 December 2021, the Supreme Court, like the Court of Appeal, concluded that there was no basis for banning Bank Norwegian’s advertising practice. The appeal was therefore rejected and Bank Norwegian was awarded the legal costs.
The Supreme Court took as its point of departure that the European Court of Justice had assessed similar advertising practice on the basis of trademark law and in several decisions concluded that the use of other people’s characteristics in search engine advertising does not involve trademark infringement. The Supreme Court concluded that, based on the case law of the European Court of Justice and the balancing of considerations made under the trademark regulations, there was no reason to prohibit the practice as contrary to good business practice under the Marketing Act.
The judgment clarifies the scope of the Marketing Act § 25 for search engine advertising.
The SVW team consisted of partner Jan Magne Langseth and partner Christian Reusch.