Evidence of use of trademark
If the mark has been used for a relatively short period of time, its use should have been more intensive than if long-term use can be shown.
How is the mark used?
Examples of this are a word mark, combined mark, three-dimensional mark or trading name.
The applicant or objector must show what is used or established by use. The evidence must in principle show the mark as applied for, but recent practice opens up the possibility that a mark may acquire distinctiveness also in conjunction with other elements, see European Court of Justice C-353/03, Have a Break (Have a Kit Kat), paragraph 32. This means that a three-dimensional mark in some cases can acquire distinctive character through use, even if use has occurred in conjunction with a word mark or a figurative element. This is typically the case where the mark consists of the shape of the product or its packaging and where they systematically bear a word mark under which they are marketed, see European Court of Justice C-24/05, Storck I, paragraph 59.
For which products is the mark used or established by use?
Protection through establishment by use or use is acquired for those products and/or services for which the mark is used or established by use. This must be apparent from the documentary evidence provided, see European Court of Justice T-262/04, Bic, paragraph 71.
Scope of use
Scope of use is understood to mean the intensity and duration of use.
Geographical extent of use
For use to be significant for the assessment of distinctive character, the mark must be used in large parts of the country. Local establishment by use can only justify a local exclusive right, and therefore does not provide a basis for registering the trademark with effect in the whole of Norway.
Trademarks established locally by use, on the other hand, may represent an obstacle to registration for a subsequent application.
As a general rule, most of the use/establishment by use must have occurred in Norway, but the documentary evidence of use or establishment by use abroad may be significant to the outcome of the case. The decisive factor is that use has led to the mark being perceived as a trademark in Norway. Documentary evidence showing only use or establishment by use abroad will normally not be sufficient.
The time when use or establishment by use must be implemented
In order for a mark to be registered, it must have distinctive character both at the time of the application and at the time of registration, see Norwegian Law Gazette Rt. 2005. p.1601, Gule Sider, paragraph 41. This means that use must have taken place before the application was submitted, and this must be apparent from the documentary evidence supplied. No significance will be attached to use after this time. Exceptions can be imagined for market research and various statements made a short time after the time of application, because they will be able to demonstrate awareness of the mark prior to submission of the application.