mercredi, mai 25, 2011

United Kingdom: Interflora v Marks & Spencer: the keyword clash continues

Contributed by Reynolds Porter Chamberlain LLP


Advocate General Jääskinen has delivered his opinion on the questions referred to the European Court of Justice (ECJ) by the English High Court in Interflora, Inc v Marks & Spencer plc. In his view, use by Marks & Spencer of 'Interflora' (and variations) as a Google AdWord infringed Interflora, Inc's trademark rights. If his opinion is followed by the ECJ (as seems likely), it will reconfirm that use of third-party marks as keywords cannot in itself constitute trademark infringement, unless it has some adverse effect on the functions of the trademark. The ECJ's ruling is expected later this year.

Facts

Interflora operates under the UK and Community trademarks INTERFLORA. UK retailer Marks & Spencer provides, among other things, a flower delivery service. Marks & Spencer used Google's AdWord internet search engine service to purchase the keyword INTERFLORA and close variations thereof, so that when a Google user searched for INTERFLORA, a link to Marks & Spencers' flower delivery service was shown as a sponsored link, above the 'natural' search results. Interflora alleged that this practice infringed its trademarks and brought proceedings against Marks & Spencer (and a second defendant, Flowers Direct Online Limited, which has since settled with Interflora) in the High Court. The court referred four questions to the ECJ (for further details please see "Unlocking keyword disputes?").

Opinion

The advocate general held as follows:

  • A sign identical to a trademark is used "in relation to goods or services" when it has been selected as a search engine keyword without the consent of the trademark proprietor and the display of adverts is organised on the basis of the keyword. Trademark owners may prohibit use if an average internet user cannot readily ascertain whether the goods or services referred to in the advert originate from the trademark owner or an undertaking economically connected to it (a licensee), or from a third party. If the competitor's sponsored link would lead some members of the public to believe that the competitor is a member of the trademark owner's commercial network when it is not, infringement exists.(1)
  • Trademark owners may prohibit use of a sign as a search engine keyword in relation to goods or services identical to those covered by an identical trademark with a reputation(2) when:
    • adverts are found by internet users following a search using a trademark with a reputation as a search engine keyword and these adverts mention or display that trademark; and
    • either the trademark is used as a generic term covering a class or category of goods or services, or the advertiser attempts to benefit from its power of attraction, its reputation or its prestige and to exploit the marketing effort expended by the proprietor of that mark in order to create and maintain the image of that mark.
  • The fact that the internet search engine operator does not permit trademark owners in the relevant geographical area to block the selection of signs identical to their trademarks as keywords by other parties is immaterial to the advertiser's liability.

The advocate general observed that the purchase and use of keywords could amount to infringing use under Article 5(1)(a). He further suggested that such use infringes trademark rights if it is not sufficiently clear from the sponsored link that the goods or services do not originate from the trademark owner. If Marks & Spencer's sponsored link had included the trademark INTERFLORA in its text, which it did not, then he considered that Marks & Spencer would be liable and that EU law on comparative advertising would need to be followed.

In the advocate general's opinion, the INTERFLORA trademark has achieved a secondary meaning, signifying a commercial network of florists delivering flowers according to a set procedure. It bears some similarity to a collective mark. He went on to say that for this reason, the INTERFLORA trademark had a certain reputation among consumers. Where Marks & Spencer fell down, in his opinion, was that there was likely to be confusion among consumers searching using the keyword INTERFLORA; consumers may view the Marks & Spencer sponsored link in the belief that Marks & Spencer was part of or associated with Interflora's commercial network of florists. The essential origin function of the INTERFLORA trademark would be adversely affected and use by Marks & Spencer would constitute trademark infringement.

Comment

It appears that should the ECJ agree with the advocate general's view on the existence of a likelihood of confusion, this will undoubtedly be a big win for Interflora. However, such a decision is unlikely to impact on the majority of online advertising using keywords, which do not involve trademark owners that are part of commercial networks similar to Interflora. Advertisers seeking to use third-party trademarks or variations thereof as keywords for online searches will generally welcome this opinion. At the same time, advertisers should bear in mind that if challenged, a court might find against them where there is any ambiguity over the origin of its advertised goods or services. If the ECJ follows the advocate general's position on comparative advertising, Marks & Spencer would do well to make it clear that it is offering an alternative service so that the EU Comparative Advertising Directive applies.(3) However, following the opinion and pending a decision from the ECJ, the advice must be not to include third-party trademarks in the text of sponsored links.

For further information on this topic please contact Andrew Hobson or Tom Cadwaladr at Reynolds Porter Chamberlain LLP by telephone (+44 20 3060 6000), fax (+44 20 3060 7000) or email (andrew.hobson@rpc.co.uk or tom.cadwaladr@rpc.co.uk).

Endnotes

(1) Article 5(1)(a) of the EU directive governing national trademarks and Article 9(1)(a) of the EU regulation governing Community trademarks.

(2) Article 5(2) of the directive and Article 9(1)(c) of the regulation.

(3) See O2 Holdings Ltd v Hutchison 3G [2006] EWHC 2571 and L'Oreal SA v Bellure NV Case C-487/07

 

New Zealand: Brand protection and the perfect exit strategy

Contributed by A J Park


Creating a brand involves a lot of hard work, but it pays off when potential acquirers are lining up to buy the business. Brand protection is vital when executing the perfect exit strategy.

It takes confidence and effort to run a successful business centred around an exclusive, sought-after product or service. Having a potentially money-making idea is the first big step, but an entrepreneur still has to create a business plan involving the idea, establish a business to commercialise it and spend a number of years building up equity and goodwill in the business.

Determining the perfect exit strategy is difficult. It depends on a number of factors and, most importantly, timing - a luxury over which entrepreneurs and others generally have little control. However, New Zealand has seen a number of significant success stories, including the sales of:

  • Trade Me to Fairfax Media;
  • Kathmandu to private equity interests;
  • Wither Hills to Lion Nathan;
  • 42 Below to Bacardi;
  • the Kim Crawford brand to Vincor of Canada;
  • the La Bonne Cuisine dips business to Heinz Wattie's; and
  • the Trilogy brand of natural skincare to Ecoya.

In each case, a company had an exclusive, successful branded product to which it devoted a lot of effort, resulting in something tangible - as well as intangible - that an acquirer could not resist. The vendors deserved to reap the rewards for their efforts. However, reaching a point at which they could sell to an interested party meant having a product that translated into value, exclusivity and quality. They had to create a brand that could be converted into a legacy, so that it could be continued under different ownership, even once the original creators had exited.

The much-used words 'value', 'exclusivity', 'quality', 'equity' and 'goodwill' all refer to something intangible. It is creativity that gives immense value to an organisation's goodwill - in other words, its intellectual property. In each of these recent examples, the intellectual property is closely connected to a strong brand name:

  • TRADE ME for online trading;
  • KATHMANDU for outdoor equipment and clothing;
  • WITHER HILLS for wine;
  • 42 BELOW for vodka;
  • LA BONNE CUISINE for dips;
  • KIM CRAWFORD for wine; and
  • TRILOGY for natural skincare.

All of these brand names were registered as trademarks, not only in New Zealand, but also in the products' intended export markets.

Obtaining trademark protection in a number of jurisdictions can require significant investment. Registration gives a brand owner exclusive rights to use their trademark without concerns. They can also enforce the rights granted to them by registration to prevent unauthorised parties from using the same or similar names in connection with the particular products or services for which the trademarks were registered.

Registration also means that when prospective purchasers carry out due diligence, they know that they would have exclusivity in the countries where the mark was registered. The certainty of being able to carry on business using such a trademark would be a significant factor in the price paid for the company and its assets, both tangible and intangible.

Entrepreneurs with a creative product should prepare correctly from the outset, even if the prospect of taking the world by storm seems remote at first. They should ensure that they have registered their brand in all countries of interest; whenever a new market is established, the brand should be registered in that country. It pays to have an extensive IP portfolio and to ensure that it is fully protected.

Once a creative product is established, its creators should be ready to sell out and realise the profit from their hard work. They can maximise their chances by being aware of potential opportunities and surrounding themselves with experienced businesspeople and mentors. For example, the owners of the Trilogy skincare brand formed an advisory board that comprised a former chief executive of one of their distributors and an accountant, to which they added a lawyer and another accountant. Many businesspeople who have already found their own exit strategy may be willing to pass on the benefit of their experience in an advisory or mentoring capacity.

For further information on this topic please contact John Hackett at A J Park by telephone (+64 9 356 6996), fax (+64 9 356 6990) or email (john.hackett@ajpark.com).

Malaysia: Court considers validity of trade description order in trademark infringement case

Contributed by Shook Lin & Bok Kuala Lumpur


In Thye Huat Chan Sdn Bhd v Thye Shen Trading Sdn Bhd ([2008] 6 MLJ 99) the applicant was the registered proprietor of two trademarks - the first registered for rice and sago flours, and the second for rice, sago and tapioca flours. The applicant alleged that the respondent had infringed its trademarks by selling tapioca starch bearing a confusingly similar mark.

The applicant applied for an ex parte trade description order under Section 16 of the Trade Descriptions Act 1972. The court held that, on a comparison of the applicant's marks and the mark on the alleged infringing goods, the applicant's second mark was infringed. Accordingly, the court granted a trade description order on the grounds that a registered trademark was being infringed in the course of trade within the meaning of the Trademarks Act 1976.

Following the grant of the trade description order, the applicant filed a draft order in accordance with the terms granted by the court. The registrar amended the wording of the draft order to state that get-ups were being infringed, rather than a registered mark. The draft order amended and approved by the registrar did not accord with the terms granted by the court. The court stated that the applicant's solicitors should have noticed and corrected this error.

The court observed that a trade description order creates an offence, in that an act that may not be capable of being proved to be an offence (eg, applying a false trade description to goods) can be proven by relying on the trade description order. Pursuant to the trade description order, the enforcement officers seized goods from the respondent's premises. The respondent applied for the trade description order to be set aside. The court set aside the trade description order on the following technical grounds:

  • The trade description order was in a form not granted by the court and was therefore invalid.
  • Photographs of the infringing trademark were merely attached to the trade description order and the infringing marks were not described in the order. Relying on an earlier Court of Appeal decision, the court held that the order was invalid as it did not describe the infringing marks.
  • The applicant failed to make full and frank disclosure when applying for the trade description order. It did not disclose the fact that it was aware that the respondent and other traders had been importing and selling tapioca starch bearing its trademark, and that it had sent cease-and-desist letters to them. The court stated that if the respondent's particulars had been disclosed, it would have ordered the application for the trade description order to be served on it.

The court observed that seizure of the respondent's goods and prosecution could have been avoided if the application had been dealt with inter partes from the start. The trade description order was set aside on technical grounds with damages to be assessed and costs.

For further information on this topic please contact Michael Soo at Shook Lin & Bok Kuala Lumpur by telephone (+60 3 2031 1788), fax (+60 3 2031 1775) or email (michaelsoo@shooklin.com.my).

 

dimanche, mai 15, 2011

Du choix des destinations de voyage

mercredi, mai 11, 2011

Spain: Appeal court lifts preliminary injunction against sale of escitalopram generics

In a March 8 2011 decision the Barcelona Court of Appeal confirmed a decision of Barcelona Commercial Court No 4 (April 12 2010) lifting the preliminary injunctions requested by Lundbeck, previously granted ex parte by the court, against various companies to prohibit them from selling escitalopram generic medicaments for which they had obtained marketing approval (for further details please see "Lundbeck not Reddy for patent injunction reversal on copycat drug").

Lundbeck holds the patent EP347.066 - ES2.986.891, as well as SPC 200200019 derived from it, which claims a certain manufacturing process for the active ingredient escitalopram. Escitalopram is an anti-depressant commercialised by Lundbeck under the trademark CIPRALEX.

Lundbeck requested the adoption of preliminary injunctions against various companies based on the infringement of its patent since, according to Lundbeck, the defendants' products contained escitalopram manufactured following Lundbeck's patented process and not by the process declared by them (a process by Indian company Dr Reddy's, which falls outside the scope of Lundbeck's patent). To support this argument, Lundbeck argued that:

  • the open part of the drug master file filed by the defendants was insufficient to prove that the process used to manufacture the escitalopram in their medicaments was actually the one declared by Dr Reddy's, and that only a certificate issued by the health authorities could prove that fact;
  • the presence of diol traces in the defendants' product (less than one part per million (ppm)) could not be explained if Dr Reddy's process had been used to manufacture the escitalopram, but would appear only if Lundbeck's patented process was being used;
  • the optical purity of the defendants' escitalopram (99.3%) could not be achieved using Dr Reddy's process; and,
  • the presence of significant impurities of didesmethyl-escitalopram and desmethyl-escitalopram ('markers' of the use of Dr Reddy's process) was irrelevant because Dr Reddy's could add them afterwards to cover up the infringement, or could be admixing escitalopram obtained by the two processes.

However, the court rejected Lundbeck's objections and lifted the preliminary injunctions, based on the consideration that the active ingredient of the defendants' escitalopram medicaments was manufactured and supplied by Dr Reddy's, as had been accredited by the defendants through the open part of the drug master file and two expert reports.

Lundbeck appealed the court decision based on the same arguments used at first instance, insisting that the process used by the defendants was the one protected by its patent. Lundbeck also argued that during the first instance proceedings it would have challenged the conclusiveness of the drug master file submitted by the defendants. According to the plaintiff, it would have depended on the defendants to prove that the drug master file deposited before the health authorities was the same as the one filed in the proceedings, and that it was actually used by them, without attributing to the plaintiff an impossible proof.

In response, the appeal court made clear that while a certificate issued by the health authorities is an optimum means to demonstrate the process used in the preparation of the active ingredient of a medicament, it is not the only means, and this fact can be justified in other ways. The court considered that the evidence submitted by the defendants (the drug master file and two independent expert opinions) was sufficient to prove that the process used to manufacture the escitalopram contained in their products was actually Dr Reddy's process.

With regard to the objections raised by Lundbeck, the court concluded that the diol traces contained in the defendants' escitalopram were irrelevant, and did not consider it to be proven or very credible that their presence was due to Dr Reddy's using Lundbeck's process to hide this fact later by reducing the contents of diol with successive recrystallisations in ethanol. This was considered less plausible, especially since the defendants had demonstrated that Dr Reddy's did not use ethanol, but rather ethyl acetate as recrystallising solvent, which, according to Lundbeck itself, would not enable the amounts of diol to be reduced.

As for the optical purity, the court stated that there was no evidence in the proceedings to prove the degree of optical purity obtained using the patented process, thus impeding the court from comparing the results from either process. Thus, it concluded that this allegation was irrelevant with regard to the alleged infringement.

Finally, the court established that the presence of didesmethyl-escitalopram and desmethyl-escitalopram in the defendants' products (more than 100ppm each), which were 'markers' of the use of Dr Reddy's process, merely confirmed that the process effectively used was Dr Reddy's process.

Hence, the appeal court upheld the decision issued by Barcelona Commercial Court No 4 and lifted the preliminary injunctions, as it considered that the requirement of appearance of right had not been met. According to the appeal court, the defendants fulfilled sufficiently the burden of proving their active ingredient manufacturing process, whereas Lundbeck did not manage to rebut their evidence in this regard.

The main trial in the first instance main proceedings is due to take place in July 2011.

For further information on this topic please contact Sara Pelaz at Grau & Angulo by telephone (+34 91 353 36 77), fax (+34 91 350 26 64) or email (s.pelaz@gba-ip.com).

Russia: Patent office opens IP databases to tax authorities

The Federal Tax Service and Rospatent, the Russian patent office, have entered into a cooperation agreement which provides for the exchange of information between the two bodies for the purpose of monitoring compliance with tax legislation.

For tax inspection purposes, Rospatent will allow the tax service free online access to its databases, which hold information on inventions, utility models, industrial designs, trademarks and service marks that are protected within the Russian territory. The agreement also allows the tax service to search for information on objects of intellectual property and to link such information to individuals; the scope of such searches extends to registered assignments and licence agreements.

If official confirmation of Rospatent's database information is needed, or if the necessary information is unavailable, the tax service will submit an enquiry to Rospatent. Enquiries must be processed immediately and answered within 15 working days. The information supplied is confidential and is for official use only. The agreement describes the technical conditions for information sharing between the tax service and Rospatent, as well as details of the search methods to be used. The agreement is ongoing and came into force on December 28 2010.

For further information on this topic please contact Eugene Arievich or Alisa Fomina at Baker & McKenzie - CIS Limited by telephone (+7 495 787 2700), fax (+7 495 787 2701) or email (eugene.arievich@bakermckenzie.com or alisa.fomina@bakermckenzie.com).

France: Setting the criteria for jurisdiction in online infringement cases

On December 14 2010 the Criminal Chamber of the Supreme Court rendered a decision regarding the criteria to determine the jurisdiction of French courts in case of online infringement of IP rights.

In the case at issue, a French rapper became aware that the German subsidiary of his former producer, Universal Music Entertainment GmbH, was still offering his songs for sale on its German website.

After requesting reports by the French Agency for the Protection of Programmes, he instituted infringement proceedings before the French courts based on his author rights.

The Paris Court of Appeal upheld the claim, confirming the decision of the court of first instance. It held that it had jurisdiction in cases of claimed online infringement if the online activities have been reported by the Agency of the Protection of Programmes. The rapper's songs belonged to the French music directory; further, on the website the song titles were not translated into German and it was not necessary to understand German to use the icons displayed. Therefore, the appeal court concluded that even if the website was written in German, it targeted the French public and consequently infringed the author's rights.

However, the Criminal Chamber of the Supreme Court disagreed with the Paris Court of Appeal. It said that the criteria mentioned did not show that the website run by Universal Music Entertainment GmbH was "oriented towards the French public". As a result, the Criminal Chamber annulled the decision.

Although the other chambers of the Supreme Court, in particular the Commercial Court, had previously considered the relevant public as being the sector of the public that is "attracted" by a website, this new decision seems to consider that the relevant public is the targeted public (ie, the public chosen by the editor of the website). However, the notion of "orientation" of the website was not defined by the Supreme Court.

For further information on this topic please contact Camille Pecnard at Hogan Lovells by telephone (+33 1 53 67 47 47), fax (+33 1 53 67 47 48) or email (camille.pecnard@hoganlovells.com).

 

dimanche, mai 08, 2011

Ships au bacon (il ne faut jamais croire ce que l'on voit)

dimanche, mai 01, 2011

Tautologie sciemment voulue

Si six scies scient six sapins, six cents scies scient six cents sapins

Libellés : , , ,

Spain: Territorial jurisdiction over imminent infringement of pharmaceutical patents

The Barcelona Court of Appeal has issued a judgment that sets a significant precedent on territorial jurisdiction in cases of alleged imminent patent infringement.(1) The court interpreted Articles 125(2) and (3) of the Patents Act, stating that in cases of alleged imminent infringement of a pharmaceutical patent, the plaintiff need not file its action in the place where the defendant is domiciled, but may do so before the commercial court of the capital city of any of Spain's autonomous communities.

In this case the plaintiff filed an infringement action before the commercial courts of Barcelona, even though the defendants were domiciled in Madrid and Pamplona, respectively.

Article 125(2) establishes a general rule that the competent courts in patent cases are the commercial courts of the capital city of the autonomous community in which the defendant is domiciled.

Article 125(3) states that in the case of infringement actions, the plaintiff may choose to file suit before the commercial courts of the capital city of the autonomous community where the infringement took place or where the infringement had its effect.

The defendants maintained that Barcelona's commercial courts lacked territorial jurisdiction.
Among other things, they argued that:

  • Article 125(3) did not apply because at the time the lawsuit was filed, no infringement had taken place - the plaintiff's action was based on an alleged imminent patent infringement; and
  • even if the infringement had taken place, Article 125(3) should not be interpreted as allowing a degree of forum shopping that would entitle a plaintiff to file suit wherever it wishes in Spain, as forum shopping is contrary to Spanish, EU and international law.

However, the Barcelona Court of Appeal rejected these arguments and ruled that Barcelona's commercial courts had territorial jurisdiction to hear the case. The judgment states that according to Articles 125(2) and (3), in cases of alleged imminent patent infringement the plaintiff can file suit in the place where:

  • the defendant is domiciled;
  • the alleged patent infringement will take place; or
  • the effects of the alleged patent infringement will occur.

The decision was based mainly on two points.

First, Article 125(3) applies not only to cases in which patent infringement has taken place, but also to cases of alleged imminent infringement; to conclude otherwise would require a very strict and narrow interpretation of the provision.

Second, although the forum shopping argument is potentially sound, the wording of Article 125(3) does not specify that the article applies only when infringement (or its effect) occurs other than in the place where the defendant is domiciled. Rather, the provision states that a plaintiff is entitled to choose where to file suit.

The judgment states that in cases of alleged imminent infringement of a pharmaceutical patent, the plaintiff can file suit wherever it wishes, as the future infringing products would be commercialised - and the alleged infringement would take place - throughout the Spanish territory.

The defendants have appealed to the Supreme Court. In the meantime, it remains to be seen whether the approach taken by the Barcelona Court of Appeal is followed by other Spanish courts.

For further information on this topic please contact Miguel Gil at Grau & Angulo by telephone (+34 91 353 36 77), fax (+34 91 350 26 64) or email (m.gil@gba-ip.com).

Endnotes

(1) Decision of March 2 2011.

 

Mexico: Second medical use claims in the new European format

Therapeutic treatment methods for humans or animals are excluded from patentability under most legal systems around the world, and Mexican law is no exception. Article 19(VII) of the Industrial Property Law excludes such methods from patentability because they are not considered inventions. However, it is generally feasible to obtain patent protection in Mexico if method claims are amended to a 'Swiss-type' format - for example, 'the use of a substance X for the manufacture of a medicament for the treatment of disease Y'.

Europe has opened up the prospect of patentability for known compounds that were previously unknown for use in treatment, thus giving rise to medical use claims with the wording:

  • 'a compound X for use in medicine';
  • 'a compound X for use in therapy'; or
  • 'a compound X for use in the treatment of a disease Y'.

However, these types of claim are inadmissible in Mexico unless the compound is new and is the intended object of patent protection. New uses of compounds or compositions can be protected in Mexico if the claims are drafted in Swiss-type format.

Significant changes were made to the European Patent Convention in 2007, which amended Article 54 to introduce a new form of second medical use claim. Article 54(5) expressly permits purpose-related product claims for a new medical use of a known substance. Thus, the new format allowed under the convention is 'product X for use in [new therapeutic use]'. This type of wording may be used for second and subsequent medical uses.

As a result of the changes in Europe, many applications are filed in Mexico containing both types of claim: the traditional Swiss-type format and the new format for second medical use. The criteria applied by the Mexican Institute of Industrial Property (MIIP) are similar to those of the European Patent Office. However, on assessing the monitoring of patent applications in Mexico, it appears that the examiners will not accept the new format for second medical use; only the first medical use format is accepted in applications involving a novel compound.

Thus, MIIP's position - at least at present - appears to be that it will not accept the new format for a claim for a second or subsequent medical use. In effect, the Swiss-style format is the only format accepted in Mexico for claiming such a use.

There seem to be two reasons why Mexican examiners will not accept the new European format. First, the Industrial Property Law has no equivalent to Article 54(5) of the convention. Second, the novelty requirements of the law provide that a claim in respect of a new use for a known compound - 'a compound X for use in the treatment of a disease Y' - is considered to lack novelty in comparison with the disclosure of compound X.

Therefore, amendments to the law would be needed to bring it into line with the convention, thereby ensuring the acceptance of purpose-related product claims for a new medical use of a known substance.

For further information on this topic please contact Jasmin Maqueda at Becerril, Coca & Becerril SC by telephone (+52 55 5263 8730), fax (+52 55 5263 8731) or email (jmaqueda@bcb.com.mx).

 

Denmark: Damages, compensation and a fine for illegal use of architecture drawings

On January 6 2011 the Supreme Court ruled in SeaWest v De jyske Arkitekter (Case 378/2007).

In 2004 an entrepreneur asked a firm of architects to create an outline plan for a "skipper's house". The architects created the outline plan and offered to plan an unspecified number of houses for a total price of Dkr188,000.

The entrepreneur rejected the offer, but thereafter, despite the architects' objections, built 144 skipper's houses as part of a major project of approximately 300 holiday homes. In a newspaper article in connection with the project, another firm of architects was mentioned in connection with the houses.

The architects made a claim for payment of fees, compensation for loss of contribution margin and compensation and the imposition of a fine for the illegal use of the drawings.

The entrepreneur admitted that he had violated the architects' copyright, but claimed that the compensation could be no higher than the amount which the architects had claimed in the 2004 offer.

The High Court found that the entrepreneur had deliberately violated the architects' copyright, and that thus it must pay compensation under Article 83(1)(1) of the Copyright Act. Following a statement from a relevant professional organisation, the total amount was estimated at Dkr1.625 million, including value added tax (VAT). This included compensation of Dkr37,500, including VAT, for non-economic damage due to the architects' lack of exposure in connection with building the houses and a fine of Dkr30,000. The architects were not compensated for loss of contribution margin. In addition, the entrepreneur was ordered to pay Dkr140,000 in costs.

The Supreme Court upheld the High Court's decision and ordered the entrepreneur to pay Dkr82,500 in costs.

For further information on this topic please contact Mads Marstrand-Jørgensen at Norsker & Co by telephone (+45 33 43 31 00), fax (+45 33 13 38 38) or email (mmj@norsker.dk).