By introduction, I am a partner in one of Norway’s leading lawfirms, Advokatfirmaet Thommessen AS (“Thommessen”). Thommessen represents Norxe AS of Fredrikstad, Norway (“Norxe”).
Norxe designs, manufactures and markets projectors for demanding applications. In November 2016 Norxe launched the groundbreaking Norxe P1 projector (“P1”), utilizing the next generation HLD LED illumination technology. This gives higher brightness than any other LED-illuminated projectors in the market and uses no moving parts such as phosphor wheels and color wheels.
Norxe has a U.S. subsidiary, Norxe America Inc., of Orlando, Florida, doing business as Norxe.
Barco NV of Belgium (“Barco NV”) is a competitor to Norxe in the projector market. Barco NV has, inter alia, a U.S. subsidiary, Barco, Inc (California, Georgia, Texas and Oregon) (“Barco Inc”) and a Norwegian subsidiary, Barco Fredrikstad AS (“BF”). These Barco entities are collectively referred to as “Barco”, herein.
Since February 2017, Norxe was informed that Barco interfered with Norxe’s contracts and business, worldwide and in the U.S. in particular, and that Barco was defaming Norxe’s good name and reputation in the trade. After several attempts to stop these harmful activities, attorney-at-law Robert E. Meshel, P.C., acting on behalf of Norxe and Norxe Inc, submitted to Barco in October 2017 a Cease and Desist Demand. However, Barco did not comply.
Further, Norxe is informed that Barco over time has disseminated untrue and defamatory statements, inter alia in the U.S. market, involving law suits against Norxe in Norway. To Norxe’s knowledge, Barco has been claiming, inter alia, that Norxe had breached Barco Intellectual Property when developing the Norxe P1 and that Barco was winning lawsuits against Norxe.
Barco sued Norxe and ten of its employees for, inter alia, allegedly having stolen Barco trade secrets, recruited Barco employees and planned/conducted competing business whilst still employed by Barco. In a ruling from Fredrikstad District Court of 17 June 2019 the District Court acquitted Norxe and it employees from all essential claims from Barco, except finding that Norxe AS, Mr. Jørn Eriksen, Mr. Kjell Einar Olsen had breached an agreed non-solicitation clause (employees). However, Barco was not awarded any compensation for this alleged breach as the District Court found that it had no economic consequences for Barco.
Barco appealed the verdict to Borgarting Appeal Court, whilst Norxe AS, Mr. Jørn Eriksen and Mr. Kjell Einar Olsen appealed the part of the verdict that went against them. In a recent ruling (11 February 2021) Borgarting Appeal Court acquitted Norxe and its employees from all claims made by Barco and stated, inter alia:
- Neither Norxe AS, Mr. Jørn Eriksen, Mr. Kjell Einar Olsen nor any other Norxe employees have recruited any Barco employees in breach of good business practice or any duty of loyalty towards Barco.
- Neither Norxe AS, Mr. Jørn Eriksen, Mr. Kjell Einar Olsen nor any other Norxe employees have planned and/or conducted any competing business with Barco in breach of good business practice or any duty of loyalty towards Barco.
- Neither Norxe AS, Mr. Jørn Eriksen, Mr. Kjell Einar Olsen nor any other Norxe employees have breached any Barco trade secrets or Barco know how when establishing Norxe and developing the Norxe P1; neither technical trade secrets/know how nor commercial trade secrets / know how.
Hence, Barcos appeal was fully rejected whilst Norxe’s, Mr. Jørn Eriksen’s and Mr. Kjell Einar Olsen’s appeals was fully upheld.
Further, Borgarting Appeal Court found that Barco had acted in violation of good business practice towards Norxe when making the said allegations to the market regarding theft of intellectual property etc. Borgarting Appeal Court stated that Barco is liable for any economical loss that Norxe has suffered in that respect. Thus, Barco’s liability has been established by the court, but the level of economical compensation is subject to new legal proceedings.
Norxe AS, Mr. Jørn Eriksen, Mr. Kjell Einar Olsen and the other Norxe employees was awarded legal cost for both the District Court and the Appeal Court. The verdict is not enforceable before earliest 11 March 2021 (provided that Barco does not appeal to the Supreme Court, where the access is strictly limited).
Norxe AS, Mr. Jørn Eriksen and Mr. Kjell Einar Olsen are pleased that Borgarting Appeal Court completely rejected all of Barco’s serious allegations toward them and clearly states that Norxe’s business and the planning of Norxe’s business is and has been conducted fully in accordance with applicable rules. Norxe are also pleased that the court found that Barco’s behavior against Norxe was in violation of good business practice, and thus, established liability for Barco.
The verdict is as expected and completely in line with what Norxe has stated all the way.