Establishment by use

If you can document that a mark that is initially descriptive and/or lacks distinctiveness is "well known as someone's special characteristic" in Norway, you will still be able to have the trademark registered. This is called incorporation or establishement by use.

Simply explained, this is because you cannot obtain an exclusive right to words and signs that others need to use on their products, or that will not be perceived as trademarks. 

However, if your trademark application is refused because your mark is descriptive and/or lacks distinctive character, all hope is not necessarily lost. 

There may be documentation that shows:

• The market share of the trademark 
• The intensity of use of the trademark 
• How the trademark has been marketed 
• How many in the circle of trade perceive the trademark as an indication of commercial origin 

In order for us to register a trademark on the basis of establishment by use, the mark must be well known as someone's special characteristic throughout Norway for the goods and services for which you want the mark registered. 

This is because a trademark registration gives an exclusive right that applies throughout the country. Extensive use with geographical spread is therefore required. 

A trademark may also be established locally through use. This does not mean that you can obtain a trademark registration, but it can justify a local exclusive right.