RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q4/NOR/1
26 February 1999
(99-0755)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION ON ENFORCEMENT
NORWAY1
The present document reproduces the introductory statement made by the delegation of
Norway, the questions put to it and the responses gi ven in the review of legislation on enforcement in
the context of the Council's meeting of 17-21 November 1997.2
___________
I. INTRODUCTORY STATEMENT
The procedures for enforcing intellectual property rights are in general the same procedures
as those for enforcing other kinds of rights and claims.  Thus, civil law suits concerning intellectualproperty rights take place under the Civil Procedure Act, 13 August 1915, No. 6.  The enforcementof judgements as well as provisional measures are governed by the Enforcement of Claims Act,26 June 1992 No. 86.  Only for border measures as provided for in Section 4, Part III of the TRIPSAgreement are there procedures particular to the enforcement of intellectual property rights.
Criminal prosecution is governed by the Criminal Procedure Act, 22 May 1981, No 25.
The provisions of the individual intellectual property Acts concerning criminal liability aresupplemented by the general provisions in Part I of the Penal Code, 22 May 1902, No. 10, i.e. theprovisions on territorial applicability and on confiscation of gain and objects.
The court system is established by the Judicature Act 13 August 1915 No. 5.  The
Judicature Act also contains several provisions of a more procedural character like provisions on the
language of the proceedings and the procedure for the service of documents.
II. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
1. According to Article 45 of the TRIPS Ag reement, Members may "i n appropriate cases"
authorize the judicial authoritie s to order recovery of profits and/or payment of pre-established
damages even where the infringer did not knowing ly, or with reasonable grounds to know, engage
in infringing activity.
                                                     
1 As regards laws and regulations relevant to the area under review and notified by Norway under
Article 63.2 of the Agreement, reference is made to documents IP/N/1/NOR/1 (Annex II) and IP/N/6/NOR/1.
2 The minutes of this meeting have been circulated as document IP/C/M/16.IP/Q4/NOR/1
Page 2
The Copyright Act, the Trademarks Act, the Designs Act, the Patents Act and the Act
Relating to Plant Breeders' Rights give the righ t holder the above-expla ined rights whereas the
Marketing Act and the Layou t-Designs Act do not give such righ t to the right holder.  Does this
mean, that in the latter case no "appropriate cases" are assumed?  Could the Government of
Norway explain the reason for this difference among the quoted laws?
According to the preparatory works of the Layout-Design Act, 15 June 1990 No. 21, the
provision on damages in section 6 was drafted with the US legislation at the time and theLayout-Design Directive (87/54/EEC) of the European Union in mind.  The question was notconsidered during the implementation of the TRIPS Agreement.
Undisclosed information is protected by the Marketing Act, 16 June 1972 No. 47.
However, this protection has in Norwegian law traditionally hardly been considered to be a properintellectual property right, and the liability of the wilful or negligent infringer to pay damages is notprovided for in the Marketing Act.  Such liability is instead based in the general law of tort.
2. Could the Government of Norway clarify how it implements Article 46 of the TRIPS
Agreement in cases of goods where illegal geographical indication s for wines and spirits are
used?
Any interested party may file a civil law suit or apply for a provisional measure against
unlawful use of geographical indications.  If the action is well-founded, the court will order thedefendant to refrain from commercial exploitation of the infringing goods.  The defendant is notentitled to compensation for having to obey such an order to respect the legislation on geographicalindications.
3. Under Article 50.1(b) of the TRIPS Agreement, the judicial authorities shall have the
authority to order provisional measures to preserve relevant evidence in regard to the allegedinfringement. Could the Government of Norway please clarify whether section 15-2 of theEnforcement of Claims Act gives the courts such a right?  Please clarify.
Chapter 20 of the Civil Procedure Act provides for the possibility of pre-trial taking of
evidence.  When there is reason to fear that evidence would otherwise be lost or particularlydifficult to produce, recording of evidence may be done, even though no writ of summons has beenfiled.  In Norwegian law, pre-trial taking of evidence is not considered as a provisional measure,and the Enforcement of Claims Act does not apply.
4. Could the Government of Norway explain how it implements Article 50.6 of the TRIPS
Agreement, which provides that provisional measures may be revoked or cease to have effectupon request by the defendant, if proceedings leadin g to a decision on the merits of the case are
not initiated within a reasonable period determined by the court, or, in the absence of suchdetermination, not to exceed 20 working days or 31 calendar days, whichever is the longer.
According to section 15-8 of the Enforcement of Claims Act, the court may in the decision
where it grants a provisional measure, stipulate a time-limit within which the applicant must initiateproceedings for a decision on the merits of the case.  If the court has not stipulated such a time-limit, the defendant may request the court to do so in a separate decision.  If the applicant does nottake proper action within the time-limit, the provisional measure lapses automatically.
5. According to Article 53.1 of the TRIPS Agreement, the competent authorities shall have
the authority to require an applicant to provide a security or equivalent assurances sufficient toIP/Q4/NOR/1
Page 3
protect the defendant and the competent authorities and to prevent abuse.  Under Norwegian
law, the courts will only have the authority to require the claimant to provide security orequivalent assurance to protect the defendant.  Please explain the reasons why Norwegian law
does not provide for a right to request that the claimant shall provide security or equivalentassurance also to protect the competent authorities.
The customs authorities have security in the goods themselves for any warehouse rent
accruing while the release of the goods is suspended.  The applicant is also personally liable for thewarehouse rent, together with the defendant. In our view, that suffices.  The custom authorities willnot be liable to pay damages to the defendant or the actual owner of the goods for wrongfulsuspension unless it has acted negligently.  If the applicant too has acted negligently, the customsauthorities may have partial recourse to the applicant.  However, to require security in advance forsuch a possibility seems unnecessary.
6. According to Article 59 of the TRIPS Agreement, the authorities shall not, in regard to
counterfeit trademark goods, allow the re-exportation of the infringing goods in an unalteredstate, other than in exceptional circumstances.  It is the understanding of the EuropeanCommunities and their Member States that this provision is not implemented in the newprovisions of the Norwegian Customs Act and the Norwegian Enforcement of Claims Actrelating to border measures.  Please explain.
The customs authorities shall suspend the release of the goods for as long as the court
decides.  The customs authorities are not authorized to allow the re-exportation of the goods.  Asfar as counterfeit trademark goods are concerned, the courts shall, in accordance with section 40 ofthe Trademark Act 3 March 1961 No. 4, decide how the goods are to be finally dealt with.
7. According to Article 61 of the TRIPS Agreement, Members shall provide for remedies
"sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of acorresponding gravity" .  It is the understanding of the European Communities and their
Member States that, under Norwegian law, penalties for infringing intellectual property rights,except in cases of serious copyright infringement (imprisonment up to three years), are fines orimprisonment for up to three months.  In light of this, could the Government of Norway clarify:
(a) why the penalties for (serious) infringement of trademarks, designs, patents and
plant breeders' rights, are significantly more lenient than the penalties forserious infringement of copyright protected works;
(b) whether and how this difference in treatment complies with Norway's obligations
under the TRIPS Agreement;  and
(c) whether it is Norway's intention to make the penalties for (serious) infringement
of trademarks, patents, designs and plant breeders' rights more strict.  If this is
the case, what is the timetable?
(a) The reason for these differences is historical.  When the provision on three years of
imprisonment in certain cases was adopted by Act 23 December 1988 No. 101 as anamendment to the Copyright Act 12 May 1961 No. 2, the provisions on criminalliability in the Trademark Act 3 March 1961 No. 4, the Patent Act
15 December 1967 No. 9, the Design Act 29 May 1970 No. 33, and the Marketing
Act 16 June 1972 No. 47 were not considered.  The provision on criminal liabilityIP/Q4/NOR/1
Page 4
in the Plant Breeders' Rights Act 12 March 1993 No. 32 was drafted with the
Patent Act in mind, and the Layout-Design Act 15 June 1990 No. 27 with theCopyright Act in mind.  The Layout-Design Act has the same maximum penalty forparticularly serious infringements as the Copyright Act.
(b) While the rather low level of the maximum penalties for infringement of
trademarks, patents, designs, and plant breeders' rights may be questioned, themere existence of differences cannot, in our view, be a violation of the TRIPSAgreement.
(c) The Penal Code Committee shall, as part of its work on a new penal code, consider
the different penalties laid down in different parts of Norwegian legislation.  Thestriking difference that the European Commission has pointed out, will surely beconsidered by the Committee.  The project has no firm timetable, but a proposal fora new penal code and amendments to other acts is expected within a couple ofyears.
8. According to Article 61 of the TRIPS Agreement, available remedies shall, among
others, in appropriate cases of wilful trademark counterfeiting, also include the seizure,forfeiture and destruction of the infringing goods and of any materials and implements the
predominant use of which has been in the commission of the offence.  Could the Government ofNorway clarify whether such a possibility is gran ted under the Trademarks Act?  If not, how
does Norway comply with Article 61 of the TRIPS Agreement?
Seizure etc. as part of criminal prosecution is dealt with by sections 34 and 35 of the Penal
Code.  The two sections read:
Section 34
"Any gain obtained by a criminal act may wholly or partly be confiscated from the person
to whom the gain has directly accrued through the act, even when this is a person other thanthe offender.  If the amount of the gain cannot be established, the court will determine theamount at its discretion."
Section 35
"Objects that have been produced by or been the subject of a criminal act may be
confiscated if this is considered necessary for the purpose of the provision that prescribesthe penalty for the act.  Rights and claims are also deemed to be objects.
"The same applies to objects that have been used or intended for use in a criminal act."Instead of the object an amount equivalent to its value or part of its value may be
confiscated.  It may be stipulated in the sentence that the object shall serve as security forthe amount confiscated.
"Instead of confiscating the object the court may impose measures to prevent the object
being used for the commission of new offences."IP/Q4/NOR/1
Page 5
9. With regard to cases that involve the infringement of intellectual property, could the
Government of Norway provide data on the number of:
- law suits that have been filed including their respective outcome and the average
length from the filing of a complaint until the final judgement;
- injunctions that have been issued (as defined in Article 44 of the TRIPS
Agreement) and explain how such injunctions are being enforced;
- provisional measures (as defined in Article 50 of the TRIPS Agreement) that
have been granted and the average length to obtain such measures (from therequest);
- suspensions at the border of counterfeit trademark/pirated copyright goods or in
relation to goods where other intellectual property rights are infringed;
- criminal cases including the sentences that have been applied;  whether they have
been executed;  and please also explain what kind of infringement of anintellectual property right would be regarded as a violation of criminal law;
- seizures and/or destruction of counterfeit trademark and pirated copyright
goods.
Unfortunately, Norwegian statistics on court cases and reported crime etc. are not
sufficiently detailed to provide data on the number and outcome of cases concerning intellectualproperty.
However, we would like to add that the average length of time for all ordinary civil law
suits from the time the writ of summons was recei ved by a district court until the judgement was
handed down or the case dismissed, in 1996 was 6.1 months.
So-called "injunctions" as defined in Article 44 of the TRIPS Agreement will in Norway be
handed down in the form of a judgement by a court in an ordinary civil case concluding that thedefendant shall desist from infringement.  The court may upon request give such an order duringthe trial in the form of a provisional measure as defined in Article 50 of the TRIPS Agreement.
The central headquarters of the Norwegian customs authorities have information on only
one border measure having been adopted since this system entered into force on 1 January 1997.Further border measures may have been dealt with locally.
Furthermore, could the Government of Norway explain and give practical examples of:
- how the compensation for damages of th e infringement of intellectual property
rights is calculated (Article 45.1 of the TRIPS Agreement);
- what would be regarded as "expenses of the right holder" which have to be
reimbursed pursuant to Article 45.2, first half of the first sentence, of the TRIPSAgreement and how they would be calculated;IP/Q4/NOR/1
Page 6
- whether attorney's fees can be reimbursed and how such fees would be
calculated;
- whether Article 45.2, second sentence, of the TRIPS Agreement has been
implemented in Norway and how such "damages" would be calculated?
Damages for infringement of intellectual property rights must be sufficient to compensate
the right holder for the loss inflicted by the infringement.  The loss has to a large extent to beassessed by discretion.
The different intellectual property Acts differ as to whether an infringer is liable to pay
some kind of compensation or licence fee in addition to or exceeding damages for the loss inflictedon the right holder.  The interpretation of some of the provisions are also somewhat uncertain, asthere will probably be a willingness on the part of  the courts to interp ret some of the older
provisions in light of the more modern ones, especially in light of section 38 of the Trademark Act,which after being amended by Act 22 December 1995 No. 82 reads:
"Anyone who intentionally or negligently has used a sign in violation of this Act, shall be
liable to pay the injured party compensation corresponding to a fair licence fee for the use,besides damages for further losses the use may have caused.  The compensation may bereduced and the damages may be lowered when there is little to blame the infringing partyfor.
"Where such use has been made in good faith, the court of law may order the user to pay
such compensation according to the provision in the first paragraph as it finds reasonable."
We are unsure whether the term "expenses" in Article 45.2 of the TRIPS Agreement refers
to expenses that under Norwegian law would be considered as part of the loss, i.e. expenses on partof the right holder to rectify the situation, i.e. expenses to warn business associates of infringingactivities, or expenses related to enforcement procedures, which will be considered as part of thecosts of proceedings. If the latter is the case, the main rule is that the party that completely loses alaw suit, shall reimburse the expenses of the party that wins, cf. section 172 of the Civil ProcedureAct.
Attorney's fees can be reimbursed as part of the costs of proceedings.  As attorneys in
Norway very rarely take commissions on "no cure, no pay" terms, there is in general no distinctionbetween the calculation of the fee in respect of the infringer and the calculation in respect of theright holder.
Section 55 of the Copyright Act 12 May 1961 No. 2 provides for recovery of profits for the
benefit of the right holder.  That provision apart, neither recovery of profits for the benefit of theright holder nor pre-established damages are available.
III. REPLIES TO QUESTIONS POSED BY JAPAN
1. Please indicate the "competent authorities" stipulated in Article 51 of the TRIPS
Agreement.
Applicants for border measures shall be filed with the Enforcement of Claims Court. In
general that is the District Court acting under another name.  However, in four cities there areseparate Enforcement of Claims Courts.IP/Q4/NOR/1
Page 7
2. Please explain whether "proceedings leading to a decision on the merits of the case"
stipulated in Article 55 of the TRIPS Agreement, are judicial or administrative.
Proceedings for a decision on the merits of the case as mentioned in Article 55 of the
TRIPS Agreement are judicial proceedings.  For such cases the general rules of procedure in civilcases apply.
3. Are there any ways other than the application stipulated in Articles 51 and 52 of the
TRIPS Agreement (hereafter referred to as "the Application") which enable a right holder torequest the competent authorities to suspend the release of the goods which infringeintellectual property rights or which are suspected to infringe intellectual property rights?
An application to the Enforcement of Claims Court for a border measure is the only
procedure for obtaining suspension of the release of infringing goods by the customs authorities.
4. Please explain what term your country regards as "a reasonable period within which
the competent authorities shall inform the applicant whether or not they have accepted theApplication" stipulated in Article 52 of the TRIPS Agreement.
In simple cases where the application is well prepared and where the court makes its
decision without hearing the other party, we would say that one or two days is generally areasonable period.
5. Please explain the term during which the Application is effective.
If the court accepts the application, it will in its decision set out the period for which the
border measure is to be effective in the sense that the customs authorities must look for goods thatmatch the description of the object of the measure given by the court.  If such goods are identifiedand their release is suspended, the duration of the suspension is governed by the general rules onprovisional measures.
6. Please explain whether a right holder is obliged to pay any fees to lodge the
Application.
An application for a border measure is lodged in the form of a request for a provisional
measure.  This entails a fee, currently of Nkr 1 262.
7. Please indicate provisions of laws and ordinances which prescribe the "proceedings
leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPSAgreement.  And please summarize their contents.
The proceedings for a decision on the merits of the case as mentioned in Article 55 of the
TRIPS Agreement take place as an ordinary civil law suit.  As for the legislation applicable to suchlaw suits, we refer to our introductory statement.
8. Please explain the specific procedure, if any, to be applied to the goods which are not
evident whether or not they infringe intellectual property rights, in Article 55 of the TRIPS
Agreement.IP/Q4/NOR/1
Page 8
The court shall in its decision give as precise a description as possible of the goods that the
customs authorities are to withhold.  There are no specific procedures for dealing with the situation
that arises when the customs authorities are unsure whether a specific consignment is covered by themeasure or not.  The authorities will have to decide on this and act accordingly.
9. Please explain the responsibility that the competent authorities and other related
authorities take to the right holders when they fail to suspend the release into free circulationof goods which infringe intellectual property rights with regard to the suspension based on theApplication or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
In general, public authorities are liable to pay damages when they wilfully or negligently
inflict a loss on a private person.  Whether an act is to be considered negligent depends on a broadconsideration of all the circumstances of the individual case.  However, as far as the liability of thestate for loss caused by unlawful court decisions is concerned, negligence is understood to meansomething not far from recklessness.  Furthermore, a law suit for damages based on the allegationthat a court decision is unlawful, will be dismissed unless the decision has been reversed uponappeal, cf. section 436 of the Civil Procedure Act.
The liability of the courts and the customs authorities will be decided according to these
principles in the three situations outlined in questions 9, 10 and 11 from Japan.
10. Please explain the responsibility that the competent authorities and other related
authorities take to the right holders when they examine goods which infringe intellectualproperty rights and nevertheless release them into free circulation with regard to thesuspension based on the Application or the Ex Officio Action stipulated in Article 58 of theTRIPS Agreement.
Please see the reply to question 9 above.
11. Please explain the responsibility that the competent authorities and other related
authorities take to the importers when they suspend the release into free circulation of goodswhich do not infringe intellectual property rights with regard to the suspension based on theApplication or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Please see the reply to question 9 above.
12. Is the right holder informed of identities of the importers and consignors when the
competent authorities "suspend" the goods which infringe on intellectual property rights orwhich are suspected to infringe intellectual property rights, as well as the case where the rightholder is informed of identities of the importers and consignors stipulated in Article 57 of theTRIPS Agreement?
Upon suspending the release of the goods, th e customs authorities shall immediately notify
the court, the right holder and the owner of the goods.  At that time the right holder will beinformed of the identity of the owner of the goods or his representative.  It is against the owner thatthe right holder will have to initiate proceedings for a decision on the merits of the case.  Whetherthe right holder will gain access to further information on the identities of the persons engaged inthe importation process, is as yet undecided.  The arrangements for border measures are quite new,
and several minor questions will have to be settled by administrative practice in the future.IP/Q4/NOR/1
Page 9
13. Please explain the measures to protect confidential information in the course of the
inspection stipulated in Article 57 of the TRIPS Agreement.  And please indicate provisions oflaws and ordinances which prescribe such measures.
No special arrangements have been adopted to protect confidential information concerning
the consignment withheld by the customs authorities in the course of the inspection of the goods bythe right holder or the owner.
14. Please explain the procedures of detentions and seizures to be ordered by the
competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
Border measures are granted by the courts as a special kind of provisional measure.  Thus,
the general rules on provisional measures apply.  If the court finds that the conditions for a bordermeasure are fulfilled, the court will order the customs authorities to suspend the release of thegoods.  The description of the goods can be narrow, e.g. cover a specific consignment already inthe possession of the customs authorities, or wide, e.g. cover all goods with certain characteristics.The court also decides the duration of the measure, that is the time period in which the customsauthorities must try to uncover goods matching the description.
15. Please explain the procedures to appeal against any decisions ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
The decision of the enforcement of claims court relating to an application for a border
measure may be appealed by all parties concerned to the appeal court.
16. Please explain the basis for calculating the security or equivalent assurance stipulated
in Article 53 of the TRIPS Agreement that the competent authorities may require of anapplicant when they suspend the release into free circulation.
The upper limit of the amount of the security mentioned in Article 53 of the TRIPS
Agreement for the benefit of the defendant is the maximum possible loss of the defendant caused bythe border measure, the defendant's expenses in defending himself against the wrongful bordermeasure included.  Within this limit, the amount of the security is decided by the court at itsdiscretion.  There is no lower limit.  In general, the better substantiated the application seems to be,the lower the amount of the security will be.
17. Please explain who shall pay the cost of detentions based on Article 51 of the TRIPS
Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
The parties are responsible for any warehouse rent accruing while goods are withheld by the
customs authorities under a border measure.  The owner of the goods is responsible in accordancewith the general rules on the customs procedure.  The applicant is responsible as a consequence ofthe border measure on his behalf.  From the point of view of the customs authorities, the warehouserent is secured by a right to forced sale of the goods.  A final decision on the merits of the case willbe a court judgement.  If that judgement orders the goods to be destroyed, the right holder may as aseparate procedure request the enforcement of claims authorities to enforce the judgement.  Thisentails a standardized fee, currently of Nkr 1 515, payable for all requests for enforcement ofjudgements on other kinds of claims than money claims.  The state will cover de struction expenses
in excess of the fee.IP/Q4/NOR/1
Page 10
18. Please explain what kind of cases are regarded as "the exceptional circumstances" in
which the competent authorities may allow re-exportation of counterfeit trademark goodsstipulated in Article 59 of the TRIPS Agreement.
As far as counterfeit trademark goods are concerned, the courts shall in a decision on the
merits of the case decide how the goods are to be finally dealt with in accordance with section 40 ofthe Trademark Act, 3 March 1961, No. 4.  This provision gives the court a rather wide discretion,and when exercising that authority, the court will have to take Article 59 of the TRIPS Agreementinto account.  The border measures are a fairly new arrangement, and we therefore do not know ofany court decisions dealing with the concept of "exceptional circumstances" of Article 59 of theTRIPS Agreement.
19. Please indicate names of laws and ordinances and their provisions in which the
suspension of the release of goods which infringe intellectual property rights or which aresuspected to infringe intellectual property rights is prescribed, as stipulated in Article 51 of theTRIPS Agreement.
Provisions on border measures were adopted by Act 20 December 1996 No. 104 as
amendments to the Enforcement of Claims Act and the Customs Act 10 June 1966 No. 5, cf. new
section 15-13 of the Enforcement of Claims Act and new section 41 of the Customs Act.
20. Please indicate which intellectual property rights are protected based on the
Application by a right holder.
Border measures are available in respect of all intellectual property rights of the traditional
kind, namely copyright and neighbouring rights, trademarks, patents, designs, layout-designs andplant breeders' rights.
21. Please explain kinds and contents of documents which shall be provided by the
applicant to lodge the Application.
The application for a border measure should normally be accompanied by the documents
which are in the possession of the applicant and to which the application refers.  The applicant mustgive sufficient evidence of his right to allow the judge to conclude that it seems more likely than notthat the right exists.  The applicant or his counsel will have to decide for himself what he thinks willsuffice to obtain a border measure in his particular case.
22. Please explain whether the amount of damages which judicial authorities order the
person who infringes intellectual property rights to pay the right holder is adequatecompensation for the injury the right holder has suffered, and what criteria and the way forcalculation to decide the amount for compensation.
3
In respect of all intellectual property rights, a person who wilfully or negligently infringes
the right is liable to pay damages to the right holder.  The damages must be sufficient to compensatethe right holder for the loss inflicted by the infringement.  The loss has to a large extent to beassessed by discretion.
                                                     
3 Reference is made to Norway's response to question 5 of the Checklist of Issues on Enforcement
(document IP/N/6/NOR/1).IP/Q4/NOR/1
Page 11
For different reasons, partly historical chance, the different intellectual property Acts differ
as to whether infringement in good faith entails a liability to compensation, and as to whether aninfringer is liable to pay some kind of compensation or licence fee in addition to or exceedingdamages for the loss inflicted to the right holder.  The interpretation of some of the provisions isalso somewhat uncertain, as there will probably be a willingness on the part of the courts tointerpret some of the older provisions in light of the more modern ones, especially in light ofsection 38 of the Trademark Act, which after having been amended by Act 22 December 1995No. 82 reads:
"Anyone who intentionally or negligently has used a sign in violation of this Act, shall be
liable to pay the injured party compensation corresponding to a fair licence fee for the use,besides damages for further losses the use may have caused.  The compensation may bereduced and the damages may be lowered when there is little to blame the infringing partyfor.
"Where such use has been made in good faith, the court of law may order the user to pay
such compensation according to the provision in the first paragraph as it finds reasonable."
23. Fines or the imprisonment for up to three months is the punishment for anyone who is
found guilty of infringement of another person's right under the Trademarks Act, the PatentsAct, the Designs Act, the Layout-Designs Act, the Copyright Act or the Plant Breeder's RightAct.  Please explain whether these criminal remedies are consistent with Article 61 of theTRIPS Agreement which requires provisions for a sufficient deterrent, consistently with thelevel of penalties applied for crimes of a corresponding gravity.
4
In general, the maximum penalty prescribed for infringement of intellectual property rights
is fines and three months of imprisonment.  These provisions are consistent with the level ofpenalties prescribed for misdemeanours against property rights in chapter 40 of the Penal Code.However, in particularly aggravating circumstances the maximum penalty for copyright andlayout-design infringement is three years' of imprisonment.  This is consistent with the level ofpenalties prescribed for felonies like theft and embezzlement in chapter 24 of the Penal Code.  Theother Acts on intellectual property lack such a provision on a higher maximum penalty in certaincases.  However, the Penal Code Committee shall, as part of its work on a new penal code,consider the different penalties laid down in different parts of Norwegian legislation.  The strikingdifference mentioned above will surely  be considered by the Committee.
IV. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
General obligations
1. Article 41.1 of the TRIPS Agreement requires that procedures be available for the
effective enforcement of the intellectual property rights covered by the Agreement.  InIP/N/6/NOR/1, Norway states that all courts except the conciliation board have jurisdictionover intellectual property enforcement cases.  Please describe the court structure for thejudicial procedures in Norway in which parties can enforce their intellectual property rights,at local, provincial and national levels, indicating the jurisdiction of each type of court andexplaining the interrelationships, if any.
                                                     
4 Reference is made to Norway's response to question 24 of the Checklist of Issues on Enforcement
(document IP/N/6/NOR/1).IP/Q4/NOR/1
Page 12
The Norwegian court system has four levels:
(a) The conciliation boards, of which there are as a main rule one in each of the 435
municipalities, constitute the first level.  The boards do not deal with criminalcases.  Neither do they deal with enforcement of claims in cases where therealready is a title of enforcement, nor with provisional measures.  Civil casesconcerning patents, layout-designs, plant breeders' rights, and trademarks also falloutside their competence.  Those cases apart, a civil law suit shall as a main rulestart in the conciliation board.  The board may upon request render judgements bydefault in favour of the plaintiff if the defendant defaults, or, upon request by one ofthe parties, render judgements on the merits of the case.  However, as the threemembers of the board normally are lay persons, the board may "refer the case tothe court" instead of rendering a judgement if it finds the case too difficult or notsufficiently illuminated.  As an exception to the main rule, the plaintiff may bring acase directly before the District Court if both he and the defendant have had legalcounsel and both the plaintiff and his counsel find no purpose in bringing the casebefore the conciliation board.  This exception is of considerable practicalimportance to the remaining civil intellectual property cases.
(b) The second level is the District Courts, of which there are 87. The District Courts
have general competence in criminal and civil cases.  However, in four citiesenforcement of claims and applications for provisional measures are handled byspecial Enforcement of Claims Courts.  In the remaining 83 jurisdictions, theDistrict Courts deal with these matters under the name of Enforcement of ClaimsCourt.
(c) The third level consists of the six Appeal Courts.(d) The fourth and highest level is the Supreme Court.Judgements rendered by a court at one level may as a general rule be appealed to the
appropriate court at the next level.  However, there are some restrictions for appeals from theDistrict Courts to the Appeal Court, and more severe restrictions on appeals from the AppealCourts to the Supreme Court.
2. Please describe briefly the procedure that must be followed by a foreign party to
initiate an enforcement procedure and cite the legal authorities establishing those procedures.
The foreign party must either lodge a complaint with the conciliation board or a writ of
summons with the District Court, see our answer to question 1 above.  The complaint or the writmust be lodged in Norwegian or accompanied by a certified translation into Norwegian.  The courtmay accept a complaint or a writ in a foreign language if the parties and the court understand thatlanguage, cf. section 136 of the Judicature Act.  For requirements as to the contents of thecomplaint or the writ we refer to sections 277 and 300 respectively of the Civil Procedure Act
An application for a provisional measure should be lodged with the Enforcement of Claims
Court.  For requirements as to the contents of the application we refer to section 15-4 of theEnforcement of Claims Act.IP/Q4/NOR/1
Page 13
3. Please identify any requirement that a foreign party must meet to initiate a proceeding
in the courts identified in answer to question 1 that is not required of a national or resident ofNorway and cite the legal authorities providing for those differences.
A plaintiff that does not reside in Norway, must, if the defendant so requires, provide
security for his possible liability for the defendant's expenses, cf section 182 of the Civil ProcedureAct. Many exceptions to this section follow from international treaties which Norway has ratified oracceded to.  The most important of them is the Hague Convention of 1 March 1954 on Procedure inCivil Cases.
4. Please explain any provisions in the enforcement system in Norway that ensure
expeditious remedies.  In addition, please explain what provisions are available to preventdeliberate delays by the parties to a proceeding and indicate the circumstances in which suchprovisions will be applied.
In general, legal proceedings are expeditious in Norway. In 1996, the time it took from
when the writ of summons was received by the district court to when the judgement was handeddown or the case dismissed, was on average 6.1 months.  For criminal cases the average time ittook from the time the indictment was received by the district court to the time the sentence washanded down or the case dismissed, was 2.6 months.  Specific data on cases concerning intellectualproperty are not available.
A party that tries to delay a civil case unduly by obviously false or meaningless allegations
or other kinds of dishonest behaviour, may be fined by the Court, cf. section 202 of the JudicatureAct.  He may also be held liable for the other party's expenses because of such behaviour,cf. section 177 of the Civil Procedure Act.  However, from a practical point of view these remediesare of negligible importance.
The most practical and powerful remedy the court has against a party that tries to delay a
case, is to convene the parties to the main hearing.  If the defendant defaults without good reason,the court will in general hand down a judgement by default based upon the allegations of theplaintiff to the extent that those allegations have already been communicated to the defendant, cf.Chapter 24 of the Civil Procedure Act.  If the plaintiff defaults, the defendant will be acquitted.
If the plaintiff initiates the proceedings for a decision on the merits of the case within the
time-limit stipulated in a provisional measure but then unduly delays the proceedings, the court mayupon request from the defendant revoke the provisional measure, cf. section 15-11 of theEnforcement of Claims Act.
5. Article 41.2 addresses, among other things, the cost of judicial and administrative
enforcement proceedings.  Please describe any fees charged by judicial or administrativeofficials for filing legal actions involving intellectual property or for pursuing such actions onceinitiated, cite the legal authorities for such fees, and provide copies of the documents used toinform the public of such fees.
The fees for legal proceedings are laid down in the Court Fees Act 17 December 1982
No. 86.  The fees are calculated as multiples of a basic fee.  The basic fee is in general adjustedeach year as part of the Parliament's adoption of the budget.  In 1997 the basic fee was Nkr 505.IP/Q4/NOR/1
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A complaint to the conciliation board costs one basic fee.  The fee for a civil case before the
district court, including appeals from the conciliation board, is six times the basic fee, that isNkr 3 030.  An appeal to the appeal court or the Supreme Court costs 25 times the basic fee, that isNkr 12 625.
An application for a provisional measure costs 2.5 times the basic fee, that is Nkr 1  262.
The fee also includes the implementation of the measure.
For interlocutory appeals, cf. Norway's answer to question 8 below, the fee is two times the
basic fee for an appeal to the District Court and six times the basic fee for appeals to the Court ofAppeal and the Supreme Court.
The fees are clearly stated in the Court Fees Act, and therefore there has been no need for
brochures etc. explaining them to the public.
In addition to the fee, the parties, in most cases initially the plaintiff, must pay for such
things as expert witnesses and translation of documents etc as the case requires.
6. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case
preferably be in writing, the better to determine the reasoning on which the decision is based.Please state whether judges must render their decisions in writing and cite the legal authoritiesrequiring such written opinions.
The answer is yes, cf. section 144 of the Civil Procedure Act and section 39 of the Criminal
Procedure Act.
7. Article 41.3 also requires that decisions on the merits of a case be based only on
evidence in respect of which parties had an opportunity to be heard.  Please identify thefactors that may be considered by a judge in rendering a decision.
Under the assessment of the facts to which the judge shall apply the law, he shall in general
only take into consideration pieces of evidence that have been produced by the parties.  However,he is also allowed to take common and indisputable knowledge into account.  As regards the legalaspects of the case, the judge shall apply the law of his own initiative.  Thus, a judge is allowed to,and sometimes indeed obliged to, study the sources of law on his own.
8. Article 41.4 obligates WTO Members to provide for judicial review of certain judicial
decisions in intellectual property enforcement proceedings.  Please describe what legallimitations, if any, are placed upon the ability of a party to an intellectual propertyenforcement proceeding to have both procedural rulings and final decisions reviewed by aseparate judicial authority, and cite the legal authorities providing for such reviews.
In Norwegian procedural law, there are two kinds of appeal: appeal proper, which a party
can rely on against judgements, and a kind of appeal minor, interlocutory appeal, which a party canrely on against other court decisions such as procedural rulings.
A judgement by the conciliation board may be appealed to the dist rict court without
limitations, cf. sections 296 and 297 of the Civil Procedure Act.  An appeal from the district court
to the appeal court requires leave from the appeal court if the appeal concerns a money claim or
other property rights worth less than Nkr 20 000, cf. section 356.  An appeal from the appeal courtIP/Q4/NOR/1
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to the Supreme Court requires leave if the amount in dispute is less than Nkr 100 000, cf. section
357.  However, the Supreme Court has a rather wide authority to deny the appeal for differentreasons, i.e. because the case lacks general interest, cf. section 373.
For all other decisions than judgements, interlocutory appeal is available, unless it may be
used as a ground for an appeal proper, or by its nature or a special statutory provision isunchangeable, cf. section 396 of the Civil Procedure Act.  However, interlocutory appeals relatingto decisions of the conciliation board are only available for decisions that have independentimportance, such as decisions on the cost of proceedings, and decisions that hinder the parties frombringing the case to the District Court, e.g. a decision to dismiss a case, cf. section 298.  There arerestrictions on the grounds on which a decision of an interlocutory appeal by an Appeal Court maybe appealed to the Supreme Court, cf. section 404.
The rules on appeal proper in criminal proceedings are rather complex and are therefore left
out here.  The rules on interlocutory appeals are much the same as for civil proceedings, cf.Chapter 26 of the Criminal Procedure Act.
Civil and administrative procedures and remedies
9. Article 42 requires that defendants be notified of judicial and administrative
intellectual property enforcement proceedings brought against them.  Please describe theprocedures followed for notifying defending parties regarding proceedings that have beeninitiated against them, indicate the information provided regarding the proceeding and cite thelegal authorities establishing these procedures.
In civil cases the complaint to the conciliation board or the writ of summons to the district
court is served upon the defendant by or by order of the court, cf. section 277 and sections 303 and313 respectively of the Civil Procedure Act.  In a ddition to the complaint or  the writ, the defendant
will be informed of what action he must take to avoid a judgement by default.
10. Article 43.2 provides that, in the event a party refuses to provide information ordered
by the judicial officials to be produced, those officials may be authorized to make preliminaryand final determinations adverse to that party.  Please describe what sanctions may beimposed on a party that refused to provide ordered information and under what circumstancesthose sanctions are imposed, citing the legal authority for those sanctions.
In general, there are no sanctions available for enforcing such a court order against a party
that refuses access to, or refuses to provide, evidence.  However, the refusal may be interpreted inthe refusing party's disfavour, and section 258 of the Civil Procedure Act expressly states that thecourt shall, in light of the total circumstances, decide what conclusions should be drawn from therefusal.
11. Article 44.1 requires that judicial officials be able to enjoin or otherwise prevent
infringing activity by a party, including by preventing the entry of infringing goods into thechannels of commerce.  IP/N/6/NOR/1 explains that the effect of a legal determination that adefendant has no right to carry out activities that are infringing, combined with the possibilityof criminal action, has the same effect as an injunction.  The description of criminal actionsavailable does not indicate that criminal actions are possible in connection with violations in
relation to rights in undisclosed information.  Please describe how activities that violate such
rights can be remedied as required by Article 44.1.IP/Q4/NOR/1
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Due to a mere oversight on our part, the Norwegian responses to the Checklist of Issues on
Enforcement5 did not refer to section 17 of the Marketing Act 16 June 1972 No 47 which makes
infringement of undisclosed information a criminal offence.
12. Other remedies required by the TRIPS Agreement for violations of intellectual
property rights described in IP/N/6/NOR/1 also do not include references to violations ofrights in undisclosed information.  Please describe how such remedies are provided underNorway’s laws.
A person who wilfully or negligently violates the provisions on undisclosed information in
the Marketing Act 16 June 1972 No. 47, is liable to pay damages.  This liability is based in thegeneral law of tort and is not provided for in the Marketing Act.
13. Article 44.2 provides an exception to the requirement in paragraph 1 for government
use or use by third parties authorized by the government, limiting the remedy forinfringement to payment of adequate remuneration as provided in Article 31(h).  Pleasedescribe any such limitations on remedies in the laws of Norway and cite the legal authoritiesproviding for those limitations.
The extent to which the government or any third party authorized by the government is
allowed to use intellectual property, has been a subject of previous reviews.  In cases were such useis allowed, the use does not constitute an infringement and no remedy other than compensation isavailable.  However, if the government or a third party authorized by the government unlawfullyuses intellectual property, all the general remedies are available.
14. Article 48.2 permits WTO Members to exempt public authorities and officials from
liability from remedies only where their actions were taken or intended in good faith incarrying out their responsibilities under the law.  Please explain any exemption providedpublic authorities and officials from liability for abuse of enforcement procedures, describe thecircumstances in which such limitations would not apply, and cite the legal authoritiesgranting such exemptions.
In general both public authorities and public serv ants are liable to pay compensation for loss
wilfully or negligently caused to private parties.  Whether an act is to be considered as "negligent"in this respect, depends on a broad consideration of all the circumstances of the individual case.However, we would like to emphasize one aspect of this general principle, namely that the liabilityof public authorities is not derived from the liability of an individual servant.  Thus, the authoritywill be liable for both so-called "cumulative negligence" and "anonymous negligence".
Provisional measures
15. Article 50.3 requires that judicial authorities be authorized to require an applicant to
provide evidence to establish with a sufficient degree of certainty that the applicant is the rightholder and that infringement has occurred or is imminent.  Please describe the evidencerequired by right holders to establish ownership of each form of intellectual property coveredby Part II of the TRIPS Agreement.
                                                     
5 Document IP/N/6/NOR/1.IP/Q4/NOR/1
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According to section 15-4 of the Enforcement of Claims Act, the application shall be
accompanied by the documents which are in the possession of the applicant and to which theapplication refers.  According to section 15-6, the applicant must give sufficient evidence of hisright to allow the judge to conclude that it seems more likely than not that the right exists.  Howdifferent kinds of documentary evidence or allegations in the application are to be considered underdifferent circumstances in respect of the different intellectual property rights, is the domain of thejudge and his experience and common sense and cannot be answered authoritatively by theadministration.
Special requirements related to border measures
16. The TRIPS Agreement requires that countries adopt procedures that enable right
holders to request suspension of the importation of counterfeit trademarked goods and piratedcopyrighted works.  IP/N/6/NOR/1, dated September 1996, states that Norway is reviewingthe laws and regulations relating to border measures to ensure conformity with the TRIPSAgreement.  Please give the status of the review and describe the manner in which the lawsand regulations of Norway comply with the obligations contained in Articles 51 through 59 ofthe TRIPS Agreement.
Provisions on border measures were adopted by Act 20 December 1996 No. 104 as
amendments to the Enforcement of Claims Act and the Customs Act 10 June 1966 No. 5.  Theprovisions entered into force on 1 January 1997.
Border measures are available in respect of all intellectual property rights of the traditional
kind, namely copyright and neighbouring rights, trademarks, patents, designs, layout-designs, andplant breeders' rights.  If an importation of goods constitutes an infringement of such a right, theright holder may apply to the enforcement of claims court for a border measure as a special kind ofprovisional measure.  Thus, the general rules on provisional measures apply.  If the court finds thatthe conditions for a border measure are fulfilled, the court will order the customs authorities tosuspend the release of the goods.  The description of the goods can be narrow, e.g. cover a specificconsignment already in the possession of the customs authorities, or wide, e.g. cover all goods withcertain characteristics.  The court also decides the duration of the measure, that is the time period inwhich the customs authorities shall try to  uncover goods matching the description.
If the customs authorities uncover goods matching the description, they shall suspend their
release and immediately notify the court, the applicant and the owner of the goods.  If a time-limitfor initiating proceedings for a decision on the merits of the case has not been set, the court shall doso upon receiving the notification.  The court may authorize the parties to inspect the goods whilethey are in the possession of the customs authorities.
Criminal procedures
17. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least
for wilful trademark counterfeiting and copyright piracy.  Please explain how the penaltiesprovided under the laws of Norway comply with that obligation.
In general, the maximum penalty prescribed for infringement of intellectual property rights
is fines and three months of imprisonment.  Under particularly aggravating circumstances the
maximum penalty for copyright and layout-design infringement is three years of imprisonment.  The
other acts on intellectual property lack such a provision.  However, the Penal Code CommitteeIP/Q4/NOR/1
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shall, as part of its work on a new penal code, consider the different penalties laid down in different
parts of Norwegian legislation.  The striking difference mentioned above, will surely be consideredby the Committee.
[Follow-up to question 17 from the US]
In its response to question 17 from the Unit ed States, Norway indicates that it intends to
revise its Penal Code with respect to criminal penalties for infringement of intellectual property
(other than copyright).  Please describe the time-frame the government expects for the adoption
of such revisions.
As emphasized in our answer to question 17 from the United States, the Norwegian Penal
Code Committee shall, as part of its work on a new penal code, consider the different penalties laid
down in different parts of Norwegian legislation, including the penalties for infringement of
intellectual property rights.  This project has no firm timetable, but a proposal for a new penal code
and amendments to other Acts are expected within a couple of years.
[Follow-up questions from the US]
1. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, inte grated circuit layout-design and trade secret
enforcement for each of the years 1996 and 1997, including the number of cases filed;
injunctions issued; infringing products seized; infringing equipment seized; cases resolved
(including settlement); and the amount of damages awarded.
Please see below two tables containing available statistics on civil and criminal enforcement
of intellectual property rights.  It should be noted, however, that Norwegian courts of law do notroutinely keep statistics on intellectual property right enforcement.  Hence, the tables do not claim to
be an exhaustive register of all relevant acts of enforcement in this field for 1996-97 and will to some
extent be based on estimates.  Moreover, no distinction is made between copyright and industrial
property rights cases.
Table 1:  Civil enforcement of intellectual property rights* in Norway 1996-1997
NUMBER OF CASES OR AMOUNTS IN YEAR **
Type of Event 1996 1997
cases filed 25 to 30 30 to 35
injunctions asked for 25 30 to 35
injunctions issued 15 to 20 20
infringing products seized not known, but  see table 2 not known, but see table 2
infringing equipment seized not known not known
cases resolved by settlement 40% 40%
judgement passed 40% 45%
cases resolved otherwise 20% 15%
amount of damages awarded*** normally Nkr 50 000 to 500 000, very rarely above
*The available statistics do not distinguish between copyrights and industrial property rights.
**The figures are to some extent based on estimates as the statistics on IPR enforcement are
incomplete.***It is not known whether the awarded damages were actually paid.IP/Q4/NOR/1
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2. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions and the amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that your criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
Please see the reply to follow-up question 1 from the United States.
Table 2:  Criminal enforcement of intellectual property rights* in Norway 1996-1997
NUMBER OF CASES OR AMOUNTS IN YEAR**
Type of Event 1996 1997
cases filed 50 to 60 50 to 60
raids 50 to 55 50 to 55
infringing products seized 50 to 55 50 to 55
infringing equipment seized not known not known
prosecutions 30 to 35 30 to 35
convictions 30 30
amount of fines pronounced*** normally Nkr 5000 to 120 000, rarely above.
terms of jail sentences*** suspended jail sentences of up to 90 days.
*The available statistics do not distinguish between copyrights and industrial property rights.
**The figures are to some extent based on estimates as the statistics on IPR enforcement are
incomplete.
***It is not known whether the pronounced fines were actually paid or whether suspended jailsentences were actually served (e.g. because of successive crimes committed during the suspension
period).
__________