Self-assembled Kitcar infringes on Ferrari

Kitcars are self-assembled vehicles. A new body is built on an existing chassis, usually from a middle class car. Aside from being sold as ready-made cars, they are also offered as a kit. A company called Kitcar Collection collects and sells such kitcars.In 2018, this company imports a ready-built kit car from the United States. A logo featuring a prancing horse can be seen on the handlebars and in the center of the hubcaps. The Ferrari word-logo is attached to the front and boot of the car, but covered with black Duct Tape.

 

When the car is offered for sale, Ferrari has it seized. They demand a ban on the use of the trademarks and for the car to be destroyed, as it resembles a 1969 Ferrari Spyder too closely. The court agrees partially.

This use of the trademark is not allowed, even when covered with Duct Tape, because a buyer can remove the tape. As a result of the differences in the between the cars’ bodies, the overall impression of this kit car differs sufficiently from the Spyder. The claim of copyright infringement is therefore rejected. To have the entire car destroyed goes way too far, as an alternative, defendant is ordered to remove the trademarks within two days.

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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?