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Ajax / Lezer

Supreme Court 20 February 2015, Ajax / Lezer

Groundbreaking litigation regarding the protection of the basic design of the famous Ajax shirt as a trademark. Legendary and multiple Champions League winning Amsterdam based football club Ajax registered the basic design of its shirt (white shirt with central vertical red stripe) as a trademark in 1995. Ajax enforced its rights against a street trader selling look-alike shirts (without Ajax name or logo) in a stall in front of the stadium. Under the complex case law of the Court of Justice of the European Union the Amsterdam court in the first instance nullified the trademarks, a decision that was reversed by the Amsterdam Court of Appeal. The Court of Appeal’s finding that the look-alike shirts were not infringing based on a perceived narrow scope of protection of the Ajax shirt trademark was overturned by the Supreme Court. The essence of the Supreme Court ruling is that it is incorrect under harmonized European trademark law to deny infringement merely based on a finding that the marks are not sufficiently similar. No matter how low the degree, if there is some similarity the court has to assess whether other factors than similarity (such as the fame of the mark and the specific circumstances) cause either the likelihood of confusion or association with the mark that can result in unjustified coattail riding on the mark’s fame. The assessment will now have to be made by the court to which the case is remanded by the Supreme Court. A team led by Sven Klos including Antoon Quaedvlieg, represented Ajax.

Court The Hague: sufficiently likely that taste can be protected by copyright"

read the judgment (Dutch) here



Vitra / Kwantum

23 January 2015

The famous Swiss high end furniture company Vitra is the owner of the copyright in the world famous design of the so called "plastic chair" created by fabled American industrial designers Ray and Charles Eames in the early 1950’s. Kwantum, a large home decor retailer in the Netherlands and Belgium sold near exact copies of the chairs and defended its actions i.a. by claiming that copyright could not be asserted by Vitra in the the Eames designs in view of the U.S. nationality of the creators. The President of the district court in summary proceedings in the court of The Hague found in favour of Vitra and held that the designs are protected by copyright. Sven Klos the team that assisted Vitra in the litigation including Professor Antoon Quaedvlieg and Jasper Klopper.

Read the judgment (Dutch) here.

Longchamp / Desigual

Longchamp / Desigual, District Court Den Bosch, 27 February 2015

The issue in the case was the protection of the iconic design of the famous Le Pliage ladies’ handbag, the bestseller of the legendary French luxury goods manufacturer Longchamp. Desigual, a Spanish fashion company, marketed a ladies’ bag with the characteristic Desigual prints. However, the three dimensional design of the foldable handbag copied almost all of the characteristic elements of Longchamp’s original Le Pliage design. Longchamp sued Desigual on the basis of copyright. In line with the result in earlier cases litigated by Longchamp in the Netherlands as well as other European countries, the court held that the design of Le Pliage is an original work of applied art protected by copyright and that this copyright has a scope that is undiminished despite frequent attempts by third parties to copy the design. The court specifically rejected Desigual’s allegations that the copyright in the Le Pliage had diminished in scope in view of frequent copying and its allegations that elements of the design could be regarded as elements of an allegedly unprotected “fashion” or “style”. The court awarded Longchamp’s claims in full, ordering Desigual to destroy the remaining stock of its infringing products and disclose all information needed for the calculation of the full compensation for the damages caused by the copying of the Le Pliage design.

UEFA et al / MyP2P

District Court Limburg 26 March 2014

Sven Klos achieved a landmark victory for various international sport organisations such as UEFA, the International Tennis Federation and the PGA in their ongoing battle against online infringement of their exclusive broadcasting rights in match footage. For the first time in the Netherlands a district court held that providing hyperlinks to illegal streams of broadcasts of sports matches constitutes a direct infringement of copyright, thus opening up a whole new array of enforcement possibilities in the area of online streaming.

Hauck / Stokke (New Alpha - Supreme Court)

Sven Klos and Sjo Anne Hoogcarspel represented German manufacturer Hauck in its protracted legal battle against Norwegian manufacturer Stokke over alleged infringement of Stokke’s copyright in the design of its baby chair. Reversing an earlier finding to the contrary by the district court, the The Hague Court of Appeal handed Hauck a resounding victory finding Hauck’s design was an original design that contained none of the allegedly original elements of Stokke’s designs.

On 1 May 2015, the Supreme Court confirmed the judgment of the Court of Appeal The Hague.

View the Supreme Court judgment here (only available in Dutch)

Noordkaap & SBS / M

(to follow)

SBS / X

(to follow)

Vaise / Herman Jansen (SAVOY, eindarrest)

Final judgment dated 28 april 2015, by which the The Hague Court of Appeal quashes an opposition decision and orders the registration of the opposed mark, even though no defences had been raised against the opposition in the first instance.

Hauck / Stokke (CJEU)

Court of Justice of the European Union, case C-205/13, 18 September 2014

Case in which the Court of Justice of the European Union, for the first time, gives guidance on the interpretation of the grounds for refusal or invalidity of a trade mark that consists of a shape which results from the nature of the goods themselves or which gives substantial value to the goods. The Supreme Court of the Netherlands referred questions about the interpretation of these grounds in the context of a case in which Hauck seeks the nullification of a Benelux mark for the shape of the Tripp Trapp chair, a claim that was allowed by the Court of The Hague and upheld by the The Hague Court of Appeal.

According to the Court of Justice, the concept of a ‘shape which results from the nature of the goods themselves’ means that shapes with essential characteristics which are inherent to the generic function or functions of such goods and which consumers may be looking for in the products of competitors must, in principle, be denied registration. As regards the concept of a ‘shape which gives substantial value to the goods’, the Court observes that not only the shape of products having artistic or ornamental value, but also shapes that have essential functional characteristics as well as significant aesthetic elements may be precluded from trade mark protection on this ground. The Court of Justice points out that reserving the benefit of such shapes to a single operator would grant a monopoly over the essential characteristics of the goods, thereby undermining the objective of trade mark protection.

Antoon Quaedvlieg, Sven Klos and Sjo Anne Hoogcarspel represent Hauck in this matter.

BinckBank / BNP Paribas (turbo)

District Court The Hague (Preliminary measures judge) 9 September 2014

Binckbank can continue using the name ‘turbo’ for an investment product by which it is possible to speculate with a leverage on the increase and decrease of the underlying assets, for instance stocks, commodities or index.
The preliminary measures judge ruled that the registered trade mark owned by competitor BNP Paribas is no longer valid because turbo has become the common name in the trade for this investment product.

Vaise / Herman Jansen (SAVOY)

Court of Appeals The Hague 5 August 2014

The The Hague Court of Appeal allows appeal against a decision on opposition, even though the appealing party had not filed any arguments with the BOIP.

Noordkaap & SBS / X

Court of Appeal Amsterdam 18 december 2012

In this matter, the Amsterdam Court of Appeal ruled in favour of the freedom of speech and confirmed journalists are allowed to report on issues that contribute to a debate of general interest by means of showing an example. The Court of Appeal considered the use of hidden camera footage nor use of webcam footage, taken by X himself, unlawful.