FAQ

H&M: design or trademark use?

When is the use of a text or design Trademark infringement? An important question, since the increasing use of words and bright colors on t-shirts and sweaters.H&M sells sweaters with the word CHIEF and the face of an Indian printed on them. Jeans Centre summons H&M to stop the sale, claiming infringement of it´s trademark CHIEF. H&M disagrees and continues the sale.

Jeans Centre takes the matter to court and the judge confirms that the prints of H&M are an infringement of the CHIEF trademark. The word CHIEF is dominant and attracts the most attention of the consumer because of it´s positioning above the face of the Indian. The consumer might recognize the word CHIEF as a trademark and confuse it with the sweater of Jeans Centre.

It is remarkable that in this judgment no word is written about the question, if this actually is trademark use, or rather mere design. This aspect is rather important, in my opinion, when judging if the consumer can be confused, or not. Many times, parties present marketing researches in such cases to proof their claim. Because H&M continued selling after being summoned by Jeans Centre, these sales have been in bad faith. In an additional hearing the amount of the damage is to be established.

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Trademark infringement, trademark issues and oppositions

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IP Quiz

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defendant

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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