Examples of documentary evidence for establishing use of a trademark
Sales figures, market shares and marketing costs, advertising budget, etc.
These are the "hard facts" that are suitable for showing the extent of use or establishment by use and its geographical extent. Sales figures, etc. are of little value unless there are figures comparing market shares, see European Court of Justice C-25/05, Storck II, paragraph 79. The figures presented must be viewed in conjunction with the total market for the products or services concerned.
Media coverage, advertising materials, brochures, advertisements, publications
This type of documentary evidence is suitable for showing how the mark is used and for which products or services. It is important to date such information and show from which newspapers or television channels the coverage or advertising is taken, and how often the advertising has been printed or shown.
Market research can provide very good evidence, but it is important that the questions asked are open-ended (not leading).
Examples of open-ended and good questions: What do you associate with SWIX? What do you think about when you hear the word BIOLA?
Examples of leading questions: Are you familiar with the trademark GREEN TRAVEL? Do you know who is behind the trademark 100% NATURAL?
It is essential that the trademarks concerned are distinctive, and not descriptive names. The Norwegian Industrial Property Office will still attach some significance to the survey even if the questions are somewhat leading, but greater weight will be given to surveys with open-ended questions. In addition, the survey must be targeted at a suitable public, see ruling in R-1/2005-4, Hilti. Such surveys must be conducted before or just after the date of application.
Use of the mark on the internet
Examples: the applicant's website, in articles and in advertisements on other websites, media coverage in online newspapers, etc.
This type of evidence is suitable for showing relevant trademark use if dated printouts of the website concerned are submitted. The reason for the requirement of dated printouts is that websites may be in a state of continuous change, so that a reference to a website address will therefore only show use at the time of the visit. In addition, website addresses may disappear or change, and therefore lose their value as evidence. A useful source for printouts of websites is www.archive.org. By searching on "wayback machine" on this site, it is possible to bring up the website as it was on different dates.
If documentary evidence of the number of real visitors (unique users) among the relevant Norwegian public in the period concerned is obtained together with such printouts, this will further strengthen the case. Figures for the number of visitors are important because we cannot otherwise know how many people have visited the site concerned and seen the trademark in use.
Distributors' statements and witness statements
The Norwegian Industrial Property Office rarely receives such statements, and little weight is normally attached to them, see European Court of Justice T-262/04, Bic, paragraph 78 ff. and Lassen: Oversikt over norsk varemerkerett (Overview of Norwegian trademark law) p. 221 (223).
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