The main question of the case was whether Brødrene Dahl, through the development and manufacture of the BD Device, had made an imitation of the Eltorque Device; and whether this imitation was in breach of section 25 of the Marketing Act on good business practice.
The Court of Appeal held that section 25 of the Marketing Act protects loyalty between commercial parties, and that the provision refers to a general loyalty assessment. The Court of Appeal went on to say that section 25 supplements other provisions in the Marketing Act, such as section 30, and other acts regarding protection of intellectual property rights. However, the Court of Appeal emphasized that, as a legal starting point, a party can seek inspiration from other products, for example by way of reverse engineering.
However, in the overall assessment of Brødrene Dahl's actions, the court concluded that the use of the Eltorque Device in the development of the BD Device went beyond what is permitted under section 25 of the Marketing Act on good business practice.
The Court of Appeal referred to how the Eltorque Device was used for more than just inspiration, as the BD Device was developed more or less solely based on Eltorque's product. This was evidenced by the fact that Brødrene Dahl had instructed its subcontractor to develop an actuator that could directly replace the Eltorque Device with similar specifications, by systematically providing the subcontractor with data and technical solutions taken directly from the Eltorque Device.
Furthermore, the Court of Appeal found that the two parties' previous collaborative relationship was of significant relevance; even though this collaboration had more or less ended by the time the BD Device project was initiated.
The Court of Appeal thereby concluded that, due to the parties' previous collaboration, Brødrene Dahl had an enhanced duty of loyalty towards Eltorque. Additionally, the Court of Appeal emphasized that the enhanced duty of loyalty required Brødrene Dahl to keep a greater distance from Eltorque's products than other competitors.