Members of Norwegian rock band Hjerteslag not entitled to keep trademark registration for band name
The rock band Hjerteslag was established in Bergen around 2011, at which point the group consisted of vocalist Robert Eidevik and other members who left the band shortly after. Petter Sætre, Ole Andre Hjelmås, Torjus Hovden-Raknes and Nikolai Aarland supposedly joined the band in June 2013. The parties disagreed as to when exactly the group started operating under the name Hjerteslag, but Eidevik claimed that he had established the band under this name before the other four members joined in 2013. Hjerteslag, with all five members, released its debut album in March 2015 and started gaining momentum as one of Norway’s leading rock bands.
In 2020 conflict arose between Eidevik and the four other members, which allegedly led to the group’s dissolution in 2021. Shortly after, Eidevik performed a concert with four new musicians, still using the band name Hjerteslag.
In response, on 15 October 2021 Sætre, Hjelmås, Hovden-Raknes and Aarland filed a trademark application for HJERTESLAG with the NIPO, which was granted. They also objected to Eidevik’s use of the band name on his own following the dissolution. In February 2022 Eidevik filed a motion for administrative review with the NIPO, claiming primarily that the rights to the trademark should be transferred to him alone, on the basis that he had acquired trademark rights to the band name through use, both prior to June 2013 (at least in Bergen) and thereafter. Alternatively, Eidevik claimed that the other members had left the band in 2021 and that he was the only remaining member; thus, he was the proprietor of any trademark rights acquired through use. In any case, Eidevik asserted that he was at least co-owner of any acquired trademark rights.
NIPO decision
On 30 August 2022 the NIPO handed down its decision. First, it noted that a transfer of a registered trademark (in whole or in part) may not be demanded through a motion for administrative review, but only through an ordinary lawsuit. Further, the NIPO concluded that:
- Eidevik had not acquired trademark rights through use prior to June 2013;
- trademark rights to the band name had been acquired through use in the period after June 2013 by all the band members jointly; and
- in light of the earlier acquired trademark rights, the trademark registration granted in October 2021 was invalid.
Consequently, all band members are joint owners of the acquired trademark rights to the band name. In terms of the allegation that Eidevik was sole owner due to his use prior to June 2013, the NIPO did not consider the provided documentation to be sufficient to that effect. However, the fact that the name Hjerteslag was recognised and established as a band name before the dissolution in 2021, and thus jointly acquired as a trademark among the band members, was undisputed.
As such, all five members jointly own the trademark rights. This implies that the registration and use of the trademark without Eidevik’s co-ownership or consent would infringe his trademark rights (and vice versa). Consequently, the trademark registration was deemed invalid.
As a result, Eidevik himself is not entitled to keep operating using the band name Hjerteslag.
Comment
Although it breaks the heart of at least one of the authors to learn that the band has apparently broken up permanently, it remains to be seen whether the decision will be appealed to the Board of Appeal for Industrial Property Rights (KFIR), or whether the band name will continue to live on with at least some of the original crew. It will be interesting to see who will appear on stage during the band’s planned, upcoming tour starting on 16 November 2022 in Bergen.
The decision may be appealed to the KFIR within two months. No such appeal had been registered at time of writing.
- Members of the rock band Hjerteslag applied for registration of the band name following a row with vocalist Robert Eidevik
- Eidevik opposed the application, alleging primarily that he had acquired trademark rights through use prior to the inclusion of the other band members
- The NIPO found that all band members had jointly acquired trademark rights through use prior to the registration; the registered mark was thus invalid
This article first appeared in WTR Daily, part of World Trademark Review, in October 2022. For further information, please go to www.worldtrademarkreview.com.
