The Supreme Court rules in favor of Bank Norwegian in the Google Ads case

| Insight

Simonsen Vogt Wiig assisted Bank Norwegian before the Supreme Court of Norway. The court's ruling clarifies that using competitors' trademarks as paid search terms is legal.

We have been involved in several noteworthy trademark and unfair competition disputes throughout 2021. In particular, we prevailed before the Supreme Court in a highly cited unfair competition and trademark dispute between Bank Norwegian AS and the three competing banks Komplett Bank, Ikano Bank, and BRA-bank in the «Google Ads» matter. The case was a landmark ruling because it set aside a lengthy consistent practice from the Norwegian Council dealing with unfair marketing practices.

Bank Norwegian’s competitors had demanded that Bank Norwegian’s advertising on the Internet using the banks’ trademarks and company names as paid keywords should be prohibited under the general clause of the Marketing Act, which forbids acting contrary to good business practice among traders. The principal character of the case was demonstrated by the support from Virke, The Federation of Norwegian Enterprises, in favor of the three claimants. Google LLC had intervened, supporting Bank Norwegian.

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. Therefore, the appeal was 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 practices based on trademark law and, in several decisions, concluded that the use of other companies and traders’ company names and trademarks in search engine advertising does not, in itself,lead to a 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 Section 25 for search engine advertising.

The SVW team consisted of partner Jan Magne Langseth and partner Christian Reusch.

 

https://www.domstol.no/enkelt-domstol/hoyesterett/avgjorelser/2021/hoyesterett-sivil/hr-2021-2479-a/

https://rett24.no/articles/google-trakk-lengste-stra-i-sokemotorstriden–vant-i-hoyesterett