Stratos vs. Freia Boble

by Paal-André Storesund


Spectrum of blue colors

On 7 June 2024, The Norwegian District Court of Oslo ("District Court") handed down a judgment in a dispute between Orkla Confectionery & Snacks Norge AS ("Orkla") and Mondelez AS ("Mondelez") related to a prohibition against marketing and sale of a Mondelez's chocolate named "Freia Boble", in addition to a claim of compensation and revocation of the chocolate wrapped in the disputed packaging. One of the main issues of the case is whether the color "Pantone 2144 C" has acquired protection under Norwegian trademark law.

Orkla claimed that even though color always has a decorative function and normally cannot be deemed as inherently distinctive, the blue color (pantone 2144 C) must fulfil the conditions because of the long-lasting, comprehensive and successful marketing of the chocolate named "Stratos". Orkla's opinion is that the color meets the qualified conditions of being well known in the circle of trade as Nidar/Stratos' distinctive sign for porous chocolate. Both parties had agreed that large chocolate bars are primarily sold from self-service shelves in grocery stores, petrol stations, kiosks and more, and that the buyer is consumers in all age groups and persons in trade all over the country. 

The District Court concluded in favor of Orkla and agreed that the color met the qualified conditions to be protected by the relevant trademark laws. Emphasis was placed on the fact that the color does not describe the porous or any other nature of the chocolate, its characteristics or functions. Furthermore, the color does not result from the porous or other nature, characteristics or functions of chocolate. 

Another argument was that Orkla's claim was limited to the product category "porous milk chocolate" instead of "chocolate". This increased Stratos' market share considerably. Stratos' market share in the period of 2000-2022 was 6,9 – 13,5% for "chocolate bars", while it was 64 – 100% for "porous chocolate". The District Court was also not aware of any other offerer of porous milk chocolate in Norway of significance, except for "Freia Porøs" in 2000 and "Freia Boble" in the period 2012 - 2017.  Furthermore, the limited scope reduces the impact on other businesses offering similar porous milk chocolate products. 

The District Court put emphasis on the market survey showing, inter alia, that 71% of the whole test group, and 73% of the frequent chocolate buyers, linked Pantone 2144 C and Stratos/Nidar/Orkla. None of the other surveys were able to undermine these results. Furthermore, the content and costs of Stratos' marketing of Pantone 2144 C were not such as to undermine the credibility of the report's results. 

The District Court concluded that Orkla does have protection for the color Pantone 2144 C for porous milk chocolate and that the Mondelez's packaging of Freia Boble infringed this right. The District Court also concluded that Mondelez's use of the color on the packaging was an act in the course of trade which was in conflict with good business practice among traders and constituted a breach of section 25 of the Norwegian Marketing Act. Mondelez was ordered to remove the product from the market, in addition to paying legal costs and compensation of NOK 20 000 000.

Mondelez has publicly expressed that they will appeal the judgment from the District Court. 

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