Intellectual property and marketing law

Yes, in some cases. Under Section 15 of the Marketing Act, businesses may send electronic marketing without prior consent if an existing customer relationship exists. This presupposes, amongst other things, that the contact details have been obtained in connection with the sale of a service or product, that the customer has been clearly informed that the details may be used for marketing purposes, and that a simple and free option to opt out is provided. A new ruling from the European Court of Justice shows that this exception may, in certain cases, cover free services and freemium models. In any event, the business must assess whether the communication relates to its own, similar services, and whether other requirements under data protection regulations are met.

A trademark protects names, logos and other distinctive features that distinguish a business's goods or services from those of others, and must generally be registered. A patent grants exclusive rights to a technical invention for a limited period, provided that the invention is new and of a technical nature. Patenting requires an application and approval. Copyright arises automatically when a work is created, and protects, amongst other things, text, music, art and software. A good IP strategy assesses which rights are relevant for your company and how they are best protected and enforced.

Trade secrets are commercially sensitive information that gives a business a competitive advantage, such as business models, customer lists, technical solutions and pricing strategies. The Trade Secrets Act provides legal protection against the unlawful acquisition, use and disclosure of such information. For the protection to apply, the organisation must actively treat the information as confidential, including through non-disclosure agreements (NDAs), access restrictions and internal procedures. In the event of a breach, the organisation may seek an injunction, compensation and the disclosure of information.

Yes, the use of AI can raise a number of intellectual property issues. Training AI models on copyright-protected material without permission may constitute copyright infringement. AI-generated content that resembles existing trademarks, literary works or designs may infringe intellectual property rights. In marketing, AI-generated claims that are misleading or false may constitute a breach of the Marketing Act. Who owns the rights to AI-generated works is also not clarified in Norwegian law and requires ongoing legal assessment.

The Marketing Act prohibits misleading advertising, unfair contract terms vis-à-vis consumers, aggressive marketing and unlawful electronic marketing. Typical breaches include the use of incorrect prices in sales and promotions, the use of false or misleading information ("Norway's cheapest"), hidden advertisements on social media, the unlawful use of personal data in marketing, and marketing aimed at children that exploits their insecurity.

Breaches of the Marketing Act may result in administrative fines, injunctions and reputational damage. The Consumer Authority supervises compliance and may impose administrative fines. Competitors may also bring civil proceedings in the event of breaches that directly affect them. For example, the clothing chain Floyd was fined NOK 2 million for unlawful sales marketing.