The proprietor must prove acquired distinctiveness through use of the trademark in Norway. The evidence must prove that the sign has been used as a badge of origin, so that the relevant public identifies the products and/or services concerned as originating from a specific company.

How to prove acquired distinctiveness

The proprietor must establish all the facts necessary to prove acquired distinctiveness. The evidence must generally be dated before the application date or date of priority. The evidence must also relate to the specific goods and services claimed.

The documentation must convincingly establish a link between the sign and the goods/services at issue, in order to prove that the relevant public of the goods/services identifies these as originating from a particular undertaking because of the use of the trademark in Norway. Therefore, acquired distinctiveness must be the result of the use of the sign as a trademark.

If acquired distinctiveness through use is proved, a trademark may proceed to registration.

In establishing acquired distinctiveness, the following factors are relevant:

• the market share held by the mark regarding the relevant goods and/or services
• how intensive, geographically widespread and long-standing the use of the mark has been
• how the trademark has been marketed, and the investments made by the undertaking in marketing the mark for the relevant goods and/or services
• the proportion of the relevant public who, because of the mark, identifies the goods or services as originating from a particular undertaking. 

Link to decisions from the EU Court of Justice:

https://curia.europa.eu/jcms/jcms/j_6/en/

Link to EUIPO (European Union Intellectual Property Office):

https://euipo.europa.eu/ohimportal/en/

Legislation

See Trademarks Act, Sections 3, 14, 16, 35.