FAQ

Zigzagpatroon Nikkie Plessen

Copyright also applies to works of applied art. Because trends change rapidly in the garments-/fashion industry, manufacturers often rely on unregistered designs or on copyright to protect their designs. The disadvantage, of course, is that the burden of proof of the copyright lies with the manufacturer, whereas in the case of a registered design, the court assumes this. This plays an important role in, among others, the clothing of designer Nikkie Plessen.

Nikki has been marketing a red-black dress with a zigzag pattern since 2018. When Just Dai comes with a similar pattern on a pair of pants and a top body, she seeks a ban order.

Nikkie submits her original design drawings. The judge concludes that this pattern is the result of creative choices made by the designer, and holds that the design is copyright protected.

The design is also clearly different from the zigzag patterns that Just Dai has found. Because this eye-catching pattern is used, the overall impression is the same. The fact that this concerns a pair of trousers and body top is irrelevant, nor is the different colour scheme. The result: infringement is assumed, prohibition is ordered, along with a profit transfer, payment of the costs of the legal proceedings.

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IP Quiz

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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?

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