Viking Gas A/S
Kosan Gas A/S (formerly BP Gas A/S)
Filling and sale of bottled gas from another company did not amount to infringement of this company's trademark rights
Since 2011, Kosan Gas has sold bottled gas in a so-called composite cylinder. Viking Gas has made it its business to fill gas by, among other things, the consumers bringing empty cylinders which are then exchanged with new, full composite cylinders from Kosan Gas. Kosan Gas claimed that Viking Gas infringed its trademark right to the composite cylinder.
During the case, the Supreme Court referred preliminary questions to the EU Court of Justice regarding the interpretation of the EU Trade Marks Directive.
In line with the judgment of the EU Court of Justice, the Supreme Court held that the sale of the composite cylinder to consumers exhausts the trademark rights constituting the shape of the cylinder and the trademarks indicated on the cylinder. Kosan Gas did not have reasonable cause to oppose Viking Gas' continued marketing. Consequently, the Supreme Court gave judgment in favour of Viking Gas.
The Supreme Court, thus, reached a different conclusion than the Maritime and Commercial Court.