Unlawful Imitation Blond - Xenos

Blond has marketed pottery and tin cans since 2002, under the name ’Even bijkletsen’, which loosely translated mean “catching up”. The products are decorated with images of cupcakes, coffee beans, sugar cubes and written text. On one of the tin cans two chatting women are depicted, sitting at a table. Xenos, the competitor, sells tin cans as well, and introduces one that also has tow chatting women at a table, enjoying a snack. Blond claims that this is an infringement of her copyright and an unlawful imitation of her renowned product line. Xenos’ product is clearly in the same type of style as that of Blond.

The Court of First Instance declined Blond’s claims, stating that a style cannot be protected by copyright or any other right for that matter. The court further states that there is no unlawful imitation. The Court of Appeal, however, has a somewhat different opinion.

The Court of Appeal agrees with the Court of First Instance in that there is no copyright infringement. The differences between Xenos’ product and Blond’s products is large enough to avoid copyright infringement. The Court of Appeal does believe though, that Bold’s products have their own position on the market.

When examining the decorations on Xenos’product the Court finds that the drawings have the same feeling to it, the colors, text and layout all seem very similar. Ultimately leading to an end product that is very much like that of Blond. The resemblance is of such severity that the consumer may get confused. Xenos could have just as easily chosen an entirely different style. The Court of Appeal decided that Xenos imitated Blond’s products unlawfully. An injuction followed with a € 1.000.000 fine on any further sales.

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?