According to the Marketing Control Act section 30, the use of copies of distinguishing marks, products, etc., presenting a risk of confusion is prohibited in the course of trade if used in a manner or circumstance that must be considered unfair exploitation of the efforts or results of another person. Since the Loen Skylift Logos were registered as trademarks, the use of the Marketing Control Act presupposes that trademark registration did not offer enough legal protection.
The District Court and the Court of Appeal came to different conclusions considering different factors in the legal assessment of whether Voss Gondol and Resort were in breach of the Marketing Control Act section 30. According to the District Court, the dominating elements of the logos were the lines and squares, which illustrated the attraction. These elements and proportions gave the logos visual and conceptual similarities. Although Loen Skylift's logos were simplistic and generic, the District Court found that Voss Gondol and Resort had not utilized the possibilities to distinguish its logos from the distinctive Loen Skylift Logos.
In contrast, to the District Court, the Court of Appeal considered the geographic difference and distance between Loen and Voss. The parties are located over 250 km away from each other, and the attractions are only available at the respective geographic place. Consequently, the Court of Appeal found that the logos could not constitute a direct risk of confusion as for sale on-site and on the parties' websites. As for third-party sales, the locations' names were almost always used with the logos, and the parties used different descriptions for the attractions (Gondol and Skylift). Further, the Court of Appeal did not find the use of unprotected slogans as constituting a risk of creating the illusion of a joint commercial origin. Thus, the Court of Appeal concluded that the use of the logos were not likely to cause a direct risk for confusion.
Furthermore, the Court of Appeal did not find an indirect risk of confusion between the logos. In this regard, the Court of Appeal pointed to the different history, nature, and traditions of Voss and Loen. In addition to the different associations attached to the locations, the Court of Appeal found that the disconnected square in the logo was not prominent in the marketing. Thus, the Court of Appeal found that there was no indirect risk of confusion between the logos.
In our view, the legal assessment conducted by the Court of Appeal complies with the applicable law and case law on this matter.