FAQ

Hikvision: Liability online marketplace

Hikvision is a worldwide supplier of security and surveillance products. The company has an EU trademark registration for the word mark HIKVISION. Hikvision makes an undercover test purchase via the online marketplace/webshop <lightinthebox.com>. The product received is manufactured by Hikvision, but it is a parallel imported item (a product destined for sale outside the European Union with a different price tag).

Hikvision claims that it has not permitted the sale of these products in the European Union (as these products are sold at a higher price there). With an EU trademark registration, a company has the right to be the first to sell its products in the European Union at a price to be determined by itself.

The online marketplace <lightinthebox.com> claims not to be liable for the infringement of this right. A Chinese seller offers these products and posts the online ad with the photos, so that the actual seller. A platform/online marketplace can rightly rely on this as long as it is just the hosting provider (i.e. the website merely displays the information, the products are offered by a third party and the page is immediately removed if notified of an infringement).

However, in the proceedings before the Court and in the general terms and conditions, the online marketplace states that it enters into a purchase agreement with the consumer itself. The online marketplace is therefore liable in this case. A ban is ordered on the sale of the HIKVISION products and the marketplace must give disclosure of the amount of product sold.

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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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