EFTA Court ruling on a Norwegian angry boy

06/04/17, EU/Competition

Gustav Vigeland is a well-known Norwegian sculptor who donated his works on his death in 1943 to the Oslo City authorities. The works are displayed in the Vigeland Park which is one of Norway’s most popular tourist attractions. Copyright in many of Vigeland’s sculptures including the Angry Boy has now expired.

The Olso municipal authorities applied for trade marks for many of these works of art in an attempt to protect them notwithstanding the expiry of copyright. The Norwegian Board of Appeal referred a series of questions to the EFTA Court on the proper interpretation of the EU Trade Marks Directive including whether the registrations should be refused on the basis that they were contrary to public policy or accepted principles of morality. These are difficult questions which relate to the interface between copyright and trade marks which have been widely discussed in academic literature.

The Court examined the fundamental rationale for copyright and trade mark protection and noted that copyright acts as an incentive to contribute to the enrichment of society at large. It found that registration as a trade mark is not in itself contrary to public policy unless it could be shown that there was a genuine and sufficiently serious threat to a fundamental interest of society. It found that registration as a trade mark could, however, be contrary to ‘accepted principles of morality’ where artworks form part of a nation’s cultural heritage or act as an emblem of sovereignty – whether this is the case depends on the perception of the artwork in the relevant EEA state.

The judgment is here.

Nicholas Saunders appeared for the United Kingdom instructed by the Cabinet Office.

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