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Not every Tulip belongs to Ilja Gort

Not every Tulip belongs to Ilja Gort

This summer Ilja Gort, a well-known Dutch writer, musician and wine maker, made his way into court again. This time, the question was whether the brand “Dutch Tulip Vodka” is an infringement of the trademark rights of Mr Gort’s “La Tulipe” wines. Parties had not been able to reach a settlement, neither outside the court nor in chambers, so in the end the court has to decide this case.

The Vodka company is found to be right, there is no infringement in this case. Reason is that the word Tulip and the image of a tulip are used as an indication as to what this vodka is made of. Normally vodka is distilled from wheat or potatoes, but this particular vodka is made from pure tulip bulbs. Companies must be permitted to mention this. This is descriptive use of an ingredient and no trademark use. The judge feels supported in this, because of the fact that the Benelux trade mark office had previously refused registration of the wordmark, on grounds of descriptiveness for vodka of tulip bulbs.

There is also no question of free-riding on the well-known brand La Tulipe. For vodkas it is customary to prominently display the taste or the main ingredient. In addition to this , the bottles are marketed with its’ trademark Clusius on the bottle and the design of the label, as well as the way the tulip is depicted, are very different. Ilja's claim is therefore rejected. (Source image : Boek 9.nl)

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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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