Advertising agency liable for damages

For advertising campaigns clients often require that they are indemnified against possible infringements of intellectual property rights owned by third parties. The consequence of this is that a possible claim can be passed on to the advertising agency. The logic behind this reasoning is that the advertising agency knows what it does and can regulate the rights to images. Indemnification, however, does result in larger obligation to provide information to clients, especially if the concept is a combined idea.  

De Lijst Dedecker used an advertising agency during the elections and was indemnified by this agency for potential claims. The election poster was a political cartoon based on comic characters Lucky Luke and the four Daltons. Parody is fun, but dangerous especially if this IP rights of others are used.

The owners started a legal procedure. The Court held that parody is not correct. Because the advertising agency indemnified the client, they had to pay all the damages. The Court found this justified, because the advertising agency is "a professional service provider, who should be aware of the provisions of copyright knew, or at least had to know."
advertising-law



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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?