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STATEMENT OF DEFENCE

In the case before the Norwegian Arbitral Tribunal:

Louis Vuitton Malletier S.A

France

(Claimant)

ctr.

Ms. Christine Holm

Norway

(Ms. Holm)

and

Finn.no AS

Norway

(Operator)

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PROCEDURAL ISSUES

We submit to the jurisdiction of the arbitration tribunal. DEFENCE

I Against the Claimant’s first claim Ms. Holm claims

Acquittal

Alternatively Ms. Holm being ordered to destroy the ten handbags

II Against the Claimants second claim Ms. Holm claims

Acquittal

III Against the Claimants third claim the Operator claims

Acquittal

VI Against the Claimants fourth claim the Respondents claim

Acquittal

The respondents recognize that ‘Louis Vuitton’ is registered as a trademark (w) and that

the ‘LV’ logo and the Canvas “Monogram” are registered as figurative marks in

accordance with the directive 2008/95/EC, Article 2, and the Danish and the Norwegian

Trademark Acts, Section 2(1).

If the Claimant submits additional rights these will be disputed.

The Respondents recognize that the marks that are shown on the products in question

are identical to the marks of the Claimant.

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SUPPLEMENTARY FACTUAL BACKGROUND

The Claimant states that Ms. Holm on the 15th of June 2010 purchased a counterfeit

handbag during her holiday in Portugal. The Claimant states that Ms. Holm on the 16th

of June 2010 purchased an additional five handbags with the intent to sell these to her

friends with a margin of profit. The Claimant also states that Ms Christine Holm on the

17th of June 2010 imported the purchased handbags to Norway and that Ms. Holm at

that time had doubts regarding the authenticity of the bags. Furthermore, the Claimant

states that Ms. Holm on the 20th of June 2010 managed to sell two of the handbags to

her friends and that Ms. Holm on the 2nd of July 2010 placed an advertisement for the

remaining 13 handbags on the Norwegian online market place ‘finn.no’. The Claimant

states that the Claimant on the 15th of July 2010 became aware of the advertisement at

finn.no and that the Claimant subsequently contacted Ms. Holm and requested that she

removed her advertisement.

All dates stated by the Claimant are unsubstantiated and the factual background is not

accurate.

Ms. Holm purchased the handbags in question in a beach shop in Portugal. The

shopkeeper told Ms. Holm that the reason why the bags were sold at low prices was that

he had acquired the handbags from a bankruptcy estate of another shop. In light of this

information, Ms. Holm decided to purchase an additional amount of five handbags for

her friends. Furthermore, Ms. Holm decided to order an additional amount of ten

handbags for delivery in Norway in case other friends wanted a handbag too.

In Norway it became clear to Ms. Holm that her friends did not want to purchase the

handbags. As a result, Ms. Holm decided to sell the handbags in order to limit her loss

and Ms. Holm therefore placed an advertisement on finn.no. It did not appear from the

advertisement how many bags were offered for sale.

When Ms. Holm received a notice from the Claimant that the handbags in her

possession were allegedly counterfeit she cooperated right away and suggested that she

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could remove tags bearing Louis Vuitton's trademarks from the handbags as well as

make a note in the advertisement that the bags were potentially not original.

Without making any effort to solve this disagreement with Ms. Holm, the Claimant

contacted the Operator of finn.no and requested that the Operator removed Ms. Holm’s

advertisement from the website finn.no. Since the Operator did not comply with this

request, the Claimant filed a Statement of Claims.

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ARGUMENTATION

AUTHENTICITY OF THE HANDBAGS (EXHAUSTION)

To the Respondents’ knowledge, the handbags in question are genuine Speedy Bags

originating from Louis Vuitton. The Claimant has not produced any evidence that this is

not the case.

If the tribunal finds that the handbags in question are in fact authentic Louis Vuitton

handbags, the Respondents submit that the trademark rights to the handbags are

exhausted, cf. the Danish and the Norwegian Trademark Acts, Section 6.

In this case, it is undisputed that the handbags have been purchased in Portugal and

brought to Norway by Ms. Holm, both of which are parts of the European Economic

Area (EEA).

According to the Danish and the Norwegian Trademark Acts, Section 6, the proprietor

cannot prohibit the use of a trademark on goods that have been brought into circulation

by the proprietor or with the proprietor’s consent in an EEA country.

Consequently, the Respondents submit that the Claimant has not documented that the

purchased handbags in question are counterfeit. Furthermore, it has not been

documented that the purchased handbags have been brought into circulation in the EEA

without the Claimant’s consent.

Therefore, the Respondents submit that the Louis Vuitton trademark rights are

exhausted in relation to the purchased handbags in question.

Thus, the actions of the respondents do not constitute trademark infringement.

If the tribunal nevertheless finds that the handbags in question have been proven to be

counterfeit products, the Respondents submit the following:

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MS. HOLM ’COURSE OF TRADE’

The Trademark Acts are only applicable to infringements carried out in the course of

trade, cf. the Danish and the Norwegian Trademark Acts, Section 4 and Article 5 of

Directive 89/104 and Article 9 of Regulation No 40/94.

Ms. Holm denies that she was acting in the course of trade regarding the sale and

purchase of the 15 handbags purchased in Portugal. It should be considered a single

purchase, as it is conducted within a few days. Furthermore, it is a purchase without

organization or plan, which should not be characterized as import within the meaning of

the provisions in the Danish and the Norwegian Trademark Acts and of Directive

89/104 and of Regulation No. 40/94. In addition to this, Ms. Holm only wanted to sell

off the handbags that her friends did not want so she would not get stuck with these and

not suffer an economical loss. Furthermore, Ms. Holm had no organization or plan as to

how she should dispose of the handbags prior to placing the advertisement on finn.no.

It should also be noted that finn.no is a marketplace, which to a large degree is used by

private consumers not acting ‘in the course of trade’.

As a result, the purchase of the handbags does not constitute a trademark infringement,

cf. the Danish and the Norwegian Trademark Acts, Section 4 and Article 5 of Directive

89/104 and Article 9 of Regulation No 40/94.

In any event, Ms. Holm denies that she was acting in the course of trade regarding sale

and purchase of the first five handbags purchased in Portugal. Only Ms. Holm and her

close friends were supposed to use the first five handbags purchased by Ms. Holm. The

total price of approx. € 612.50 (25 % of retail price € 490 apiece x five = € 612.50 ≈

NOK 5,017.50) does not in it-self constitute course of trade. Furthermore, Ms. Holm

had no plan or organization as to how she should sell off the handbags, which indicates

that Ms. Holm did not have the intention to sell the handbags in the course of trade. The

margin of profit taken by Ms. Holm was only enough to cover Ms. Holm’s expenses for

transport, inconvenience, packaging and additional storage space to ensure that the

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handbags were in good condition upon arrival in Norway. The purchase of these five

bags should therefore be considered a favour from a friend and as a consequence not in

the course of trade.

As a result, the purchase of the five handbags does not constitute a trademark

infringement, cf. the Danish and the Norwegian Trademark Acts, Section 4 and Article

5 of Directive 89/104 and Article 9 of Regulation No 40/94.

GOOD FAITH

The bags purchased by Ms. Holm in Portugal are identical or at least very similar to the

Louis Vuitton Speedy bag; in fact, as the Claimant also states in the Statement of

Claims, Louis Vuitton could not with certainty tell if the bags were genuine from the

pictures. Therefore, it cannot reasonably be expected that an average consumer would

be able to separate the genuine bags from the counterfeit ones. Ms. Holm should be

considered an average consumer and could therefore not be expected to distinguish

between authentic and counterfeit handbags.

Therefore, Ms. Holm is in good faith and has not acted negligently.

As explained in ’SUPPLEMENTARY FACTUAL BACKGROUND’ Ms. Holm purchased the bags

from what she thought to be the bankruptcy estate of another shop. It is not uncommon

that shops acquire leftover products from a bankruptcy estate as the bankruptcy estate

sells these off at a cut-rate price to limit their debt. A bankruptcy estate has no regard

for the brand of products sold off and therefore they just sell to the highest bidder.

For this reason, Ms. Holm did not have any reason to believe that the low prices were an

indication that the bags were counterfeit products. Ms. Holm spent approx. NOK 990.00

a piece (total more than NOK 14,850.00) on Speedy bags – a considerable amount,

which she would never have spent had she known that the bags were counterfeit. A

price of NOK 990.00 is a lot of money to pay for a handbag for a young girl and is well

above the average price for a handbag.

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Consequently, the circumstances under which the bags were bought and the price of the

bags are not enough to establish that Ms. Holm has acted negligently.

COMPENSATION

Should the tribunal, in spite of the above, find that Ms. Holm has committed a

trademark infringement, Ms. Holm submits that her good faith regarding the

authenticity of the handbags should be taken into account when establishing if Louis

Vuitton is entitled to compensation.

The Danish and the Norwegian Trademark Acts, Section 43, entitles the right holder to

compensation if the trademark infringement is done intentionally or due to negligence.

As stated above, Ms. Holm has not acted intentionally in any way with regard to the

claimed trademark infringement. The plausible explanation for the low prices and the

fact that it is impossible to see the difference between the bags purchased by Ms. Holm

and the Louis Vuitton Speedy Bag documents that Ms. Holm has not acted negligently.

Thus, there is no basis for compensation.

Should the tribunal find that Ms. Holm knowingly or negligently purchased counterfeit

handbags, Ms. Holm submits that she only placed one advertisement on finn.no where it

is shown along with numerous of similar advertisements without being highlighted or in

any other way stand out from the rest. Consumers are not presented with random

advertisements when visiting the website. The structure of finn.no requires that

consumers do something active to view specific advertisements. Furthermore, the

handbags have not been brought into circulation. Consequently, there has been done no

harm to the reputation of the Claimant and there has been no loss of profit for the

Claimant. In addition, the Claimant has not provided any documentation on lost profits.

As a result, the advertisement has had a limited level of exposure and therefore the

Claimant has suffered no market disruption and the Claimant has suffered no lost sales.

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Regarding the Claimant’s claim on harm to their reputation Ms. Holm submits that none

of the handbags have been brought into circulation. Furthermore, the Claimant has not

documented that the handbags sold by Ms. Holm are of inferior quality than handbags

sold by the Claimant. In addition to this, such a low quantity of handbags cannot cause

harm to the reputation of a large and global company.

As a result, there has not been harm to the Claimant’s reputation.

Ms. Holm submits that since the handbags purchased by Ms. Holm presumably are

authentic the Claimant has already received potential royalty or license fee.

Consequently, the Claimant is not entitled to additionally royalty and license fee.

Should the Tribunal, in spite of this, find that the Claimant is entitled to a reasonable

royalty and a license fee, Ms. Holm submits that it should not affect Ms. Holm

negatively that the Claimant has chosen a business-model, in which the Claimant does

not issue licenses and that this cannot lead to the assumption that a potential royalty or

license would differ from the trade usage. In any event, Ms. Holm submits that the

appointed royalty should not exceed 5 % of the products retail price. The Danish

Maritime and Commercial Court and the Danish Supreme Court have in several cases,

especially regarding parallel import, appointed a royalty of 5 % of the products retail

price, e.g. judgment of the 6th December 2007, V-63-06, from the Danish Maritime and

Commercial Court.

FINN.NO DIRECT LIABILITY

The Operator disputes that the Operator should be held directly liable under trademark

law as stated by the Claimant in the Statement of Claims, p. 17-19.

The Trademark Acts are only applicable to infringements carried out in the course of

trade, cf. the Danish and the Norwegian Trademark Acts, Section 4, and Article 5 of

Directive 89/104 and Article 9 of Regulation No 40/94. It is required that the infringer

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uses the trademark in its own commercial communication i.e. as a distinctive feature for

their own goods or services.

Use ‘in the course of trade’

Finn.no is carrying out a commercial activity with a view to economic advantage when

it offers advertisement space. Finn.no operates ‘in the course of trade’ when it offers

advertisement space and permits advertisers to use signs identical with trademarks.

However, it cannot be concluded from those factors that finn.no itself ‘uses’ those signs

in the course of trade within the terms of the Danish and the Norwegian Trademark

Acts, Section 4 and Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94.

In a case from The European Court of Justice from the 23rd March 2010, C-236/08 – C-

238/08 (Google Adwords) paragraph 56 it was established that use only constitutes a

trademark infringement when “ (...)the use, by a third party, of a sign identical with, or

similar to, the proprietor’s trademark implies, at the very least, that that third party

uses the sign in its own commercial communication”.

Finn.no does not itself use signs, which are identical with, or similar to, the trademarks

of the Claimant and does not use those signs in its own commercial communication.

Therefore finn.no is not involved in ‘use’ of the trademark in the course of trade within

the meaning of the provisions of the Danish and the Norwegian Trademark Acts,

Section 4 and Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94 cf. C-

236/08 – C-238/08 (Google Adwords) paragraph 56.

The fact that finn.no is being paid by its advertisers for that service does not change the

fact that finn.no is not involved in use of the trademark in the course of trade. This was

established in C-236/08 – C-238/08 (Google Adwords) paragraph 57: “The fact of

creating the technical conditions necessary for the use of a sign and being paid for that

service does not mean that the party offering the service itself uses the sign”.

Consequently, finn.no does not use the trademarks in the course of trade within the

meaning of the provisions of the Danish and the Norwegian Trademark Acts, Section 4

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and Article 5 of Directive 89/104 and Article 9 of Regulation No 40/94, cf. C-236/08 –

C-238/08 (Google Adwords), paragraph 56 and 57.

As a result, finn.no is not directly liable under trademark law.

CONTRIBUTORY INFRINGEMENT

The Operator recognizes that a party who does not directly infringe a trademark may

still be liable under a theory of contributory infringement.

However, this theory is modified by the Directive on Electronic Commerce 2000/31/EC

(hereinafter the Directive), which is applicable to providers of information society

services; cf. Article 1(3) of The Directive.

Information Society Service Provider

The definition of a service provider in Article 2 of the Directive refers to Article 1(2) of

Directive 98/34/EC as amended by Directive 98/48/EC. In this directive ”service” is

defined as ”any Information Society service, that is to say, any service normally

provided for remuneration, at a distance, by electronic means and at the individual

request of a recipient of services.”

Finn.no is a provider of an information society service within the meaning of the

Directive and not subjective to the exemptions in Annex V of Directive 98/48/EC or

any other relevant exemptions. Thus, the Directive is applicable to finn.no as a service

provider.

Recital 42 limits the scope of application of the exemptions of liability in the Directive.

It follows from this recital that the exemptions from liability established in that directive

cover only cases in which the activity of the information society service provider is “of

a mere technical, automatic and passive nature, which implies that the information

society service provider has neither knowledge of nor control over the information

which is transmitted or stored”.

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The European Court of Justice has decided on the matter of ‘control’ in the cases C-

236/08 and C-238/08 (Google Adwords). The ECJ pointed out in paragraph 115 that

”with regard to the referencing service at issue in the cases in the main proceedings, it

is apparent that Google with the help of software which it has developed, Google

processes the data entered by advertisers and the resulting display of the ads is made

under conditions which Google controls. Thus, Google determines the order of display

according to, inter alia, the remuneration paid by the advertisers.”

It follows from this that the ECJ emphasizes the fact that Google processes the data,

controls the conditions on which the advertisements are displayed and determines the

order of display. This means that it is evident that the role is active, consistent and

present. Thus, it is these factors that are relevant when determining if the service

provider has “control” in the sense of recital 42 in the preamble to the Directive.

Finn.no does not process the data, control the conditions of the display of the

advertisements or determine the order of display. On the contrary finn.no’s role with

regard to the advertisements is consisting of trying to discover illegal advertisements.

This is done by spot-checking and by making reasonable efforts to discover any illegal

activity at the website. It should be noted that finn.no is not involved in editing the

advertisements.

Thus, finn.no’s role is passive, general and potential

The Claimant argues that finn.no has control over the advertisements and that finn.no

should not be exempted from liability.

The Operator submits that there should be a distinction between the service provider

who merely has the opportunity to exercise the control and the service provider who

actively and consistently exercises the control. The Operator is of the opinion that the

Claimant defines the conception of ’control’ too widely. It must be assumed that the

legislator intended that the exemption should has an actual purpose - to exempt at least

some service providers from liability where it is justified by the legislator. It should be

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noted that all service providers have the opportunity to control. By defining the

conception too widely you exclude all service providers from the exemption and the

exemption looses its raison d’être.

The type of control that the Operator exercises does not go further than what lies in the

nature of the case when being a service provider. This is not the kind of control that is

presented in the recital 42 in the preamble to the Directive. Thus, the exemptions in the

Directive are applicable to the Operator.

Furthermore, the mere fact that the service is subject to payment cannot have the effect

of depriving finn.no from exemptions from liability provided in The Directive cf. C-

236/08 and C-238/08 (Google Adwords), paragraph 116.

Hosting

Article 14 in the Directive is one of the exemptions from liability in the Directive.

According to this article ‘hosting’ is exempted from liability. Hosting is provided when

an information society service consists of the storage of information provided by a

recipient of the service.

The service provider is not liable for the information stored at the request of a recipient

of the service, if the provider does not have actual knowledge of illegal activity or

information and, as regards claims for damages, is not aware of facts or circumstances

from which the illegal activity or information is apparent, cf. Article 14 (a) of the

Directive. Furthermore, the service provider is not liable if the provider, upon obtaining

such knowledge or awareness, acts expeditiously to remove or to disable access to the

information, cf. Article 14 (b) of the Directive.

Article 14 (a)

The English version of Article 14 (a) mentions ‘actual’ knowledge. The Danish version

uses ‘konkret’ and the French version uses ‘effectivement’. It is obvious from these

phrases that the knowledge of the service provider has to be at a certain level and that it

does not include all levels of knowledge.

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It is incorrect when the Claimant states that even a general, abstract knowledge that the

sale of counterfeit products over the Internet is increasing causes the service provider to

become liable. This would mean that no service providers could be to be exempted from

liability, since all service providers are presumably aware of the fact that the Internet is

sometimes used for infringing activities. The perception that even abstract, general

knowledge excludes a service provider from the exemption in Article 14 would mean

that this article in practice loses its relevance and would in fact be meaningless.

The Operator submits that Article 14 (a) is only applicable if a service provider has an

actual knowledge to one or more specific infringements. The Operator is obviously

aware that the Internet is sometimes used for illegal activities, but this kind of general

knowledge is as stated above irrelevant.

This view is also supported by the US courts which on several occasions have rejected

the ‘general knowledge’ theory used by the Claimant, cf. Tiffany v. eBay and Viacom

Int’l Inc. v. YouTube Inc.

Article 14 (b)

According to Article 14 (b) it is required that “the provider, upon obtaining such

knowledge or awareness, acts expeditiously to remove or to disable access to the

information” in order to be exempted from liability.

The Operator does not contest that the Operator has been contacted by the Claimant

who required that the advertisement be removed from the website. However, the

Operator contests that this contact induced such ‘knowledge or awareness’ that is

mentioned in Article 14 (b).

Article 14 (b) must be understood as an actual, documented knowledge or awareness

and not just some vague idea or suspicion of infringement.

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It is important to note that there should be a balance between the consideration for the

advertisers and the consideration for the proprietors. When an advertisement is

removed, it limits the freedom of expression of the advertiser in question. Freedom of

expression is a fundamental human right and limitations hereof should be founded in

clear opposite considerations.

Therefore, it is not only legitimate but also in fact necessary that the Operator requires

documentation and security before removing advertisements. The Claimant was not

even itself convinced that the products in the advertisement were counterfeit, and did

not offer any documentation in this regard. The Claimant was actually not itself in

possession of any knowledge or documentation and was consequently unable to convey

such knowledge to the Operator.

Thus, the notice given by the Claimant did not constitute a sufficient foundation for

limiting the advertisers’ freedom of expression. Therefore, the Operator was entitled to

not take action until further documentation.

Consequently, finn.no is exempt from liability, cf. Directive on Electronic Commerce

2000/31/EC, Article 14.

Should the Tribunal in spite of the above find that the Operator had an obligation to

remove the advertisement in question upon the notice from the Claimant, the Operator

submits that the Operator should not be held liable for possible infringements carried

out prior to the notice. As stated above, the Operator had no actual knowledge of any

specific infringements prior to the notice and can therefore not be held liable before this

time.

Non-statutory exemption from liability

Should the tribunal, in spite of the above, find that the Operator of finn.no is not

exempted from liability, cf. the Directive, the Operator of finn.no submits that the

Operator of finn.no should not be held liable for contributory trademark infringement as

Scandinavian and European trademark law does not impose any legal duty or obligation

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on the Operator of finn.no to prevent infringement of others’ trademarks. In a similar

case the English High Court found that eBay Europe is under no legal duty or obligation

to prevent infringement of third parties' registered trademarks. Accordingly, the High

Court concluded that eBay was not jointly liable for the infringements committed by a

third party (L’Oreal S.A. v. eBay International AG, Case No: HC07C01978).

In spite of this the Operator has taken active measures to prevent sales of counterfeit

products and trademark infringements at the website finn.no. Finn.no has approximately

300,000 active advertisements online every day. Due to the large amount of

advertisements it is not possible for finn.no to perform thorough investigations of all

advertisements. According to finn.no’s ‘Terms of Use’, see Exhibit A, all advertisers

accept that sale of counterfeit products is not allowed on finn.no. In addition to this,

users of finn.no are provided with information and “Guidelines on Sales of Counterfeit

and Pirated”, see Exhibit B, on the use of advertisement on finn.no. It is clearly stated

in these guidelines that selling or purchasing counterfeit products or using trademarks

without consent is not allowed on finn.no. Furthermore, finn.no has established a

procedure that enables the users to report any suspicions on infringements or counterfeit

products to finn.no’s Security Department who will make further investigations. In all,

finn.no is sending a clear signal to users and advertisers that finn.no does not under any

circumstances accept or approve of trademark infringement or sale of counterfeit

products on finn.no.

Additionally, the Operator contests that the Operator is ‘wilfully blind’ as stated by the

Claimant. The Claimant has not provided any documentation to support that the

Operator deliberately fails to investigate any suspensions on wrongdoing. On the

contrary, as mentioned above, finn.no has a Security Department who investigates all

suspensions on wrongdoing.

In the present case the Claimant states that the Proprietor was almost certain that the

handbags sold by Ms. Holm were counterfeit. This indicates that that the Proprietor was

not sure about the authenticity of the bags. Since the Proprietor could not tell with

certainty that the handbags were counterfeit, the Operator could not be expected to

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discover this themselves. The notices that the Operator received from the Claimant did

not provide sufficient information for the Security Department to shut down Ms.

Holm’s advertisement without further ado. Finn.no has a duty of loyalty towards its

advertisers and cannot shut down advertisements without performing further

investigations into reports on infringement.

The Claimant refers to a French case ‘Louis Vuitton Malletier S.A v. eBay’ and argues

that finn.no should have known that certain items were counterfeit and automatically

removed listings simply on the basis of the prices asked and of the quantities offered.

The Operator submits that the Claimant has not documented that Ms. Holm were listing

more than one handbag at a time, and that a price of 40 % the retail price cannot be

considered unreasonable low and in it self indicate counterfeit products.

To conclude, the Operator has done more than can reasonably be expected to prevent

infringement of trademarks and sale of counterfeit products on the website, and the

Operator should not be held liable for aiding and abetting infringements on the website

finn.no.

Furthermore, it should be noticed that it is stated in the Directive that the service

provider does not have and cannot be imposed a general obligation to monitor the

information they transmit or store. Thereby the service provider does not have a general

obligation to actively seek facts or circumstances indicating illegal activity, cf. the

Directive Article 15.

Consequently, the Operator does not have any obligation to monitor advertisements on

the website finn.no neither according to the Directive nor according to general

principles of law.

COMPENSATION

As a conclusion on arguments stated above the Operator submits that the Operator has

not acted negligently. Alternatively, the Operator submits that the Operator at the

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earliest should be held liable from the time when the Operator received notice from the

Claimant.

Should the Tribunal find that the Operator has acted negligently the Operator submits

that the advertisement on finn.no is shown along with numerous of similar

advertisements without being highlighted or in any other way standing out from the rest.

Consumers are not presented with random advertisements when visiting the website.

The structure of finn.no requires that consumers do something active to view specific

advertisements. In addition, the Claimant has not provided any documentation on lost

profits.

As a result, the advertisement has had a limited level of exposure and as explained

above under ‘MS. HOLM – COMPENSATION’, there has been done no harm to the

reputation of the Claimant and therefore the Claimant has suffered no market disruption.

As a result, the Claimant has suffered no lost sales.

The Operator submits that since the handbags purchased by Ms. Holm presumably are

authentic the Claimant has already received potential royalty or license fee.

Consequently, the Claimant is not entitled to additionally royalty and license fee.

Should the Tribunal, in spite of this, find that the Claimant is entitled to a reasonable

royalty and a license fee, the Operator submits that it should not affect the Operator

negatively that the Claimant has chosen a business-model, in which the Claimant does

not issue licenses and that this cannot lead to the assumption that a potential royalty or

license would differ from the trade usage. In any event, the Operator submits that the

appointed royalty should not exceed 5 % of the products retail price. The Danish

Maritime and Commercial Court and the Danish Supreme Court have in several cases,

especially regarding parallel import, appointed a royalty of 5 % of the products retail

price, e.g. judgment of the 6th December 2007, V-63-06, from the Danish Maritime and

Commercial Court.

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SUBMISSION OF EVIDENCE The Respondents reserve the right to call witnesses.

EXHIBIT

Exhibit A – Finn.no ‘Terms of Use’

Exhibit B – Finn.no ‘Guidelines – Sales of Counterfeit and Pirated”

Copenhagen, October 31, 2010

Mai Enø Andersen, Pia Kayser & Mikkel Øskov Jensen

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EXHIBIT A

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EXHIBIT B