FAQ

DOC/Dairy Partners - purely descriptive trade names

For some years now (following recent case law of the Dutch Supreme Court) there has been discussion about the extent of the protection of purely descriptive trade names. Can a company with a descriptive trade name claim exclusivity to this name and subsequently prohibit other companies from using a similar word in their trade name?

DAIRY Partners and DOC DAIRY Partners are both dairy companies and active internationally. DAIRY Partners argues that the two company names are too similar, causing a risk of confusion and demands a ban. DOC states that the word dairy is purely descriptive of a dairy company. In that case, the likelihood of confusion is not sufficient to prohibit the sign in a company name, unless additional circumstances exist.

The Dutch Supreme Court shed light on this issue last spring, stating that additional circumstances are unnecessary, only considering the risk of confusion. All other circumstances of the case (including use) should then be taken into account. The public knows that companies often use descriptive names and are therefore less likely to confuse them with each other, so small differences are enough. The public will associate a descriptive trade name with a company only if that name has become well known due to extensive use.

The scope of protection is therefore very limited for a descriptive trade name, while the scope of protection of a distinctive company name naturally is significantly larger.

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Goodwill business / IP check

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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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