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[post_content] => We are inclined to think that using the same trade name is not possible. Is organisation A using a trade name? Then organisation B cannot use exactly the same name. If organisation B does it, this will quickly result in an infringement of the trade name right.
But it doesn't always have to be that way. I will explain how that can be.
WOW
I will take the recent WOW judgment (in Dutch) as an example. The claimant in this case is Stichting WOW. Stichting WOW has registered a word and figurative mark with the Benelux Office for Intellectual Property (hereafter “BOIP”).
In this case, Stichting WOW is suing the defendant WOW Lijnbaan B.V.. WOW Lijnbaan uses its trade name in various ways. What is clear is that it always uses the word 'WOW':
The question is whether WOW Lijnbaan is thereby infringing on the trademark and trade name rights of Stichting WOW.
Since the defendant's name is (at least partly) the same as the plaintiff's, we are inclined to think that there is infringement. But the court does not think so. Why is that?
Trade name
The basic principle is that an organisation may not use a trade name that is already in use at that time. There are exceptions to this principle, but I will not go into them now.
The court finds in this case that there is no confusion for the relevant public. The parties both serve a different geographical area. Stichting WOW is located in Rotterdam. WOW Lijnbaan is located in Amsterdam. The fact that WOW Lijnbaan also has plans to open a branch in Rotterdam does not matter, according to the court.
Trademark infringement
So is there an infringement of the WOW trademark? No. The court ruled that the use of WOW has little distinctive character. It is not very creative. And so the scope of protection is small.
But that is not the only thing that is relevant in this case. The court also considered that the parties' use of the WOW signs was not identical. There are differences in their use. For example, because Lijnbaan WOW is almost always used in combination with the words "burgers & fries".
The court also finds it implausible that the public will think that the signs of WOW lijnbaan originate from Stichting WOW. So that parties in this case are mixed up. The court has ruled that the origin of the WOW signs cannot be mistaken. And so there is no trademark infringement.
Conclusion
The more original the trade name, the better. Creative trade names have a greater scope of protection. Non-creative names can also be protected. However, if a different geographical area and a different type of use of the name are involved, this protection can still be circumvented.
[post_title] => The same trade name does not constitute an infringement. How can that be?
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[post_content] => After the judgment of the Supreme Court of February 2021 in the DOC Dairy Partners vs. Dairy Partners dispute, the possibility of protecting a descriptive trade name seemed to have become (even) more limited. Nothing appears to be further from the truth. The judge in preliminary relief proceedings of the District Court of The Hague ruled at the end of September 2021 that the use of the name 'Low Budget Verhuisservice' constitutes trade name infringement of the trade name 'Budget Verhuisservice'.
What happened?
The moving company Klustoppers has used the trade name 'Budget Verhuisservice' since April 2015. Klustoppers also uses this name for its website 'www.budgetverhuisservice.nl'.
In 2020, a competitor entered the market, profiling itself under the trade name 'Low Budget Moving Service'. This company used the website www.lowbudgetverhuisservice.nl.
Klustoppers was not happy about this, which led to the suing of this competitor. Klustoppers claimed a ban on the use of the name 'Low Budget Moving Service' before the court.
When is a trade name possible?
When assessing the question of whether a trade name has been infringed, it must be determined whether a trade name right exists.
A trade name does not come into being the moment you have thought of it, registered it with the Chamber of Commerce or registered it as a domain name. You will have to actually use the trade name (first) to get an exclusive right to the name. This use means using the name for your company. Names for your products are not protected under trade name law. Protection of products is possible within the trademark law, a registration is required.
Use of trade name
The use of a trade name can be; the use of the name on letterhead, use of the name on the website (so not only in the domain name), use in the info e-mail address, a name board above a physical shop, use of the name on social media channels and so on.
Recently, the Court of Appeal of The Hague (in Dutch) ruled, for example, that the use of a trade name in the intro of a film (it concerned the trade name of a producer) can be seen as valid use of a trade name and therefore provides protection.
When is there infringement of a trade name?
Article 5 of the Trade Names Act states that it is forbidden to use a trade name (or a similar trade name) that has already been used by another party if that use creates a likelihood of confusion among the normally attentive public. Likelihood of confusion means that there is a chance of the confusion that parties are seen in some way related to each other, while this is not the case. Is there such a likelihood of confusion? Then there has been trade name infringement. If not, there is no trade name infringement. Whether there is a likelihood of confusion depends on the circumstances of the case.
Descriptive Trade Names
It follows from the judgment in the DOC Dairy Partners vs. Dairy Partners dispute of the Dutch Supreme Court that a likelihood of confusion is and can be less likely for the same descriptive trade names than for the same non-descriptive trade names. According to the Supreme Court, the following circumstances may lead to a likelihood of confusion in the use of identical or similar descriptive trade names:
- A need for preservation of descriptive trade names must be taken into account. The more descriptive a trade name, the greater the need for reservation, the smaller the likelihood of confusion;
- The likelihood of confusion requires that the trade name be distinctive (through absorption (i.e. name recognition) or the addition of a non-descriptive element);
- The Internet has made people more accustomed to descriptive names - partly because findability improves with the use of descriptive terms - and because the public knows this, confusion is less likely to occur.
Conclusion, the protection of a descriptive trade name is very limited as the likelihood of confusion in the case of descriptive trade names is low.
So why is the trade name Budget Rental Service infringing on the trade name anyway?
As stated above, the question of whether a trade name infringement has occurred is based on the question of confusion. The answer to this question
depends on the circumstances of the case.
In this dispute, Klustoppers claimed that it had made considerable investments in the name 'Budget Verhuisservice' and that customers could demonstrably find it under that name. The competitor 'Low Budget Removal Service' did not contradict this. Therefore, the court assumes that 'Budget Verhuisservice' has some name recognition and therefore some distinguishing capacity. Because the only difference between the two trade names is a descriptive word, namely 'Low', the chance of a likelihood of confusion is not removed, according to the Court.
The fact that the competitor copied the general terms and conditions of Klustoppers one by one is also a circumstance that is taken into account in the question of confusion. The court ruled that this also increases the likelihood of confusion.
A final indication that there is a likelihood of confusion is that the confusion has actually arisen.
Despite the fact that the name 'Budget Verhuisservice' is a descriptive trade name, this name is - under these circumstances - protected and the use of the name 'Low Budget Verhuisservice' is prohibited. Klustoppers is therefore right.
Remarkable
It is noteworthy that the District Court of The Hague ruled in 2016 that Klustoppers itself had crossed the line by using the trade name 'Studenten Verhuisservice'. This just goes to show that the line between infringement and being 'copied' can be very thin.
Questions?
Do you want to set up a company and/or market a product, but do not know yet whether you can use the name you have thought up? We will be happy to advise you! Even if someone else copies your company name or product name, we will be happy to help.
[post_title] => Infringement of descriptive trade name possible after all
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[post_content] => The design of furniture can be protected in various ways. The best way is through design rights.
Design rights on furniture
The design right arises only after it has been registered. This means that you must register the design of the piece of furniture with the competent office. You can register the design within the Benelux, Europe or even internationally.
The model (or: the design) of a piece of furniture must therefore be recorded. This can be done by means of a photo, drawing or sketch. By registering a photo of a new piece of furniture, for example, the characteristics of the design are established and protected. Thus, characteristics such as:
- Lines
- Circumference
- Dimension
- Shape
- Texture
- Embellishments
- Material choice
- Style
These features are then protected by design rights. In order to register a design, the design must be new and have an individual character.
Is the registration successful? Then the design of the piece of furniture is protected for a number of years. Within the Benelux and Europe, protection lasts for five years and can be extended by five years to a maximum of 25 years. For
contracting parties of the Hague agreement the protection last for five years and can be extended by five years to at least 15 years, depending on the national law of the contracting party.
Usefulness of design rights
Design rights help to protect the design of a piece of furniture. Because the holder of the design right has the exclusive right to sell, stock or produce the piece of furniture.
Other parties are not allowed to place pieces of furniture that are too similar to the protected piece of furniture on the market. Such as counterfeit products. This also applies to products which are similar to the protected piece of furniture, but which are not complete copies. In short: design law gives you the opportunity to take action against infringing parties. And to keep copies and other imitation products off the market.
This is how it works.
Action against infringements
First, a summons letter must be sent to the infringing party. Infringing parties can be wholesalers, sellers of the furniture or the manufacturer.
You often summon the other party:
- To cease and desist the infringement;
- Cease and desist the sale of the furniture;
- To cease production of the furniture;
- Destroy stock;
- Withdraw the furniture from the market (a recall);
- Signing of a cease and desist declaration;
- Payment of damages, loss of profits and/or legal costs.
In some cases, the summons is complied with. Or the parties discuss the dispute. Unfortunately, this is not always the case. If the infringing party does not want to cooperate, legal proceedings can be initiated. This can be an urgent procedure or an 'ordinary' procedure.
Functioning of a procedure
During proceedings, the judge will compare the design with the infringing furniture. The judge looks at whether the furniture creates the same overall impression. Can buyers see the difference between the pieces of furniture? Are the differences so great that they influence the purchasing decision?
To answer these questions, the judge looks at different aspects. Such as the size, materials used and colours of the furniture. A good example is the judgment of the District Court of The Hague of 14 August 2015. You can view it
here (in Dutch).
Does the infringing product create the same impression as the design? Then it is an infringement. The owner of the design is therefore vindicated. The infringing piece of furniture will have to be taken off the market.
Frequently used defence
Often the opposing party will put forward the defence that the
design right is invalid. The other party does this by arguing that the design is not new and does not have an individual character. The design of the model would not be creative enough and would fit in with the design of furniture that already exists on the market.
The court must assess this defence. The court does this by looking at the so-called 'design heritage'. The design heritage is the design of all existing pieces of furniture. So the judge will look at whether the impression of the design differs from the general impression of the existing furniture. The judge will answer the following questions, as it were:
How does the model differ from other pieces of furniture already on the market?
To what extent is something new designed?
If the court finds that the design is new and has an individual character, the piece of furniture is protected by design rights.
No new model has been designed? Then the piece of furniture can still be protected by
copyright.
Conclusion
Design law provides a solid basis for keeping counterfeit products or copies off the market. Do you have any questions about design rights on furniture? Then please contact us without obligation.
[post_title] => Design right on furniture: infringement or not?
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[post_content] =>
What is distribution?
Distribution means that an independent entrepreneur (distributor) sells his client's products or services under his own name to customers. The distributor differs from an agent, who merely mediates in the conclusion of an agreement between the principal and the customer. The distribution agreement has no legal provisions of its own and therefore offers parties a great deal of freedom (more than, for example, the agency agreement). This freedom offers opportunities but also risks and both client and distributor would be wise to properly describe the boundaries of the assignment. This prevents disappointments that may lead to disputes. In any case, the following
should be considered:
- The duration of the agreement;
- The scope of the work as well as the working area;
- The amount of the commission and the conditions under which the fee is payable;
- The possibilities of termination;
- The consequences of termination, including for the residual stock.
In consultation with the client and/or distributor, we advise on the structure of the agreement and draw it up for you. In this way, the client or distributor knows that his/her interests are properly safeguarded in the agreement. In the unlikely event of a dispute between the parties, we are ready to bring the situation to a favourable conclusion.
[post_title] => Distribution agreement
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[post_content] =>
What are licence agreements?
The starting point is that the owner or right holder has the exclusive right to use his right. In most cases, this involves the use of
intellectual property rights, such as a patent, a trademark, a domain name or software. If another party makes use of this right without permission, he runs the risk of committing an infringement and having to pay compensation for the damage suffered by the rights holder. In many cases, however, the intention is for others to make use of the right, particularly from a commercial point of view.
Another possibility is that different companies within one group make use of the same right. In both cases, the entrepreneur would be wise to arrange this use with a licence agreement (or user agreement).
Content of licence agreement
The licence agreement regulates the conditions under which one party (licensee) may use rights of the other party (licensor). In this way the licensor has the certainty that he is not infringing and can also demonstrate this. The advantage for the licensor is that he holds the licensee to his obligations.
The licence agreement shall describe the scope of the licence as accurately as possible. The following questions are at least important in this respect:
- What exactly may the licensee use?
- Are there territorial or other specific restrictions?
- When may the licensee not use the right?
- When does the right of use expire?
- Is the licensee the only party getting the use (exclusivity) or are there multiple licensees?
- Can the licensee transfer the licence and may he issue sublicences?
In addition to the description of the scope, the licence agreement also deals with the payment for use and termination. After all, the licensor has an interest in ensuring that payment for use is made and that the right of use is terminated as soon as possible if the licensee is no longer able to meet the payment obligations. This is for instance the case when the licensee goes bankrupt.
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[post_content] =>
What is fashion & Design?
Fashion & Design is the branch par excellence where innovation and creativity are central. Designers are busy every day designing and creating new products, accessories or clothing. Some designs are so good that copycats are only too happy to make use of them. Are you dealing with a
copycat? Our lawyers can help you protect your design. They are specialised in Fashion Law.
Various rights come into play when protecting a design. Soon designers will have to deal with copyright. This is the right of the creator. Once copyright has been obtained, this brings advantages. Especially in the context of protecting a design or product.
If products are copied without the designer's consent, action can be taken against this. The question is then always whether there is illegal counterfeiting. There is no simple answer and it often depends on the circumstances of the case.
Trademark and design law also offers protection possibilities. The same applies to trade name law. By filing the shape of a new design, designers acquire design rights. The appearance of the design is thus protected. Logos, names and other trademarks can also be protected. Our lawyers can help you choose between the various protection options.
In addition, the way Fashion & Design is marketed plays an important role in the industry. Companies try to sell their products through agents, distribution, licensing or through a franchise system. We advise you to think beforehand about the design of such collaborations. In the end, it is the agreements that ensure a pleasant cooperation.
We are happy to advise you on the legal aspects of Fashion & Design. We have extensive experience in the fashion and design industry.
What can we do for you?
- Protection of Fashion & Design.
- Guidance in the event of counterfeiting of your products or if you are sued for counterfeiting.
- Advice on the protection of intellectual property rights (copyrights, trademark and design rights and trade and domain names).
- Advice on the distribution of your products, on licences, franchise agreements and
agency agreements.
- Advice on advertising.
- Guidance on tackling unwanted parallel imports.
- Advice on the design of your webshop.
- Agreements with buyers and designers.
- Product liability and re-call of products.
- Drafting general terms and conditions.
Who can we help?
We are ready for anyone who needs our help. Our current clients in the field of fashion consist mainly of:
- Clothing manufacturers.
- Companies in the fashion and design industry.
- Designers and creators.
- Textile industry.
- Franchisors and franchisees.
- Licensors and licensees.
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[post_content] => Can a
competitor use my trademark to advertise? For entrepreneurs it is often still unclear to what extent this is allowed. In this article I will briefly explain the basic principles once again.
Starting point: infringement
The use of a
trademark without the consent of the trademark owner is an infringement. That is the starting point.
This also applies to the competitor who enters someone else's brand (as a keyword) in Google AdWords on behalf of his own advertisement. Although this often happens in practice, it is not permitted. The competitor suggests in this way that there is an economic link between himself and the trademark holder. The trademark is used to attract customers to the competitor's website. However, for the customer it will be unclear whether the trademark belongs to the competitor or the trademark holder.
Exceptions: reseller and comparative advertising
In some cases,
use of another's trademark is allowed.
For example, resellers are allowed to advertise with another party's trademark, provided that the product (with the trademark) has been "put into circulation" with the consent of the trademark owner. Quite a mouthful, but what it comes down to is that second-hand sellers are allowed to advertise with the trademark, as long as the product was initially put on the market by the trademark owner or another representative of the trademark owner.
Consider, for example, the advertising of used cars. Initially, the car is sold by an official dealer. The owner can then trade in or sell the car to another garage. In order to be able to sell the used car, this garage is allowed to advertise the car. This may include the trademark of the car.
The second exception relates to
comparative advertising. A competitor may use the trademark (and the related product) for comparison with one of its own products. Even if the advertising is done through Google AdWords. Please note the form of the advertising. It must really be comparative advertising. Therefore, the strict legal requirements for comparative advertising must be met. Are these requirements not met? Then there is still trademark infringement.
Want to know more about using brands in advertising? Please contact
Frédérique Kuiper.
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Advertising is a great way to put your products and/or services on the map. There are many forms of advertising. Think of Google Ads, promotional videos you see on Youtube and commercials on TV.
Affiliate marketing is also a form of advertising.
When advertising, various (legal) rules must be taken into account. This applies to both online and offline advertising. Advertisements may not be misleading. For example, misleading can occur regarding the price, the size of the stock or the duration of the guarantee.
Specific rules also apply to comparative advertising. This is the case when one product is compared to another (competing) product. This happens a lot in online blogs. For example, beauty products are compared with each other in high-end vs. low-budget videos.
All these forms of advertising involve advertising regulations.
Trademarks in advertisements
In practice, most problems arise when brands are used in advertising. Mainly due to the use of trademarks of other organisations. In that case you do not advertise with your own
trademark, but use another trademark. In some cases this is allowed. For example, if you sell a second-hand product. Or if you have a web shop. You can read here what rules apply to using another party's trademark in advertisements. Curious about the rules a webshop has to comply with?
Also,
brands are often used as search words. Through Google Ads, the advertiser can link keywords to an ad himself. These can also be brands. For example, if you sell Nike shoes, you can use the word Nike as a keyword. But there are also hurdles to this use of someone else's brand.
Do you have a question in the area of:
- Conditions for advertising;
- Trademark use in advertising;
- Google Ads;
- Using the right keywords;
- Liability in advertising;
- Online and offline advertising;
- Comparison with the competitor.
Or are you being sued by another party? Please contact
Frédérique Kuiper.
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What is software?
Whereas
software used to support
hardware (machines), it is increasingly becoming crucial to allow entire chains to function. These chains depend on the proper functioning of the software. We can therefore help to make agreements with the programmer. Or if a customer wants to tinker with the software's source code (by himself) or build on the existing software. We also answer your software-related questions. For example, how should you deal with a software crash that prevents your company from running for a day? Who pays for the damage?
Smart manufacturing
Software also plays a crucial role in
smart manufacturing. For technological developments such as robotics, artificial intelligence, Internet of Things, blockchain and additive manufacturing (3D printing), software is very important.
In smart manufacturing (industry 4.0), software must enable the exchange of data between all parties in the entire value chain. From producer to end-user. This means that parties must open their doors to each other and start working together in one ecosystem. Parties will have to give each other access to each other's systems and data. In that context, parties must share data and new data will be generated (together).
All this raises new (legal) questions about
software and data. Because legally no one can be the owner of data, parties must make agreements about the use of data. Without detracting from the opportunities that cooperation in such an ecosystem offers, agreements will also have to be made, for example, about who may do what with data, for how long, in what way and what must happen when the cooperation ends (exit).
In practice
Software may be protected by an
intellectual property right (e.g. copyright or a patent). The holder of an IP right will want to exploit it and protect it against infringers. We regularly assist clients who have been visited by a bailiff who has come to seize software. The Business Software Alliance (BSA) then claims that the company has insufficient software licences.
Our specialists can help you with the
following topics:
- Review and drafting of agreements such as software development, software license, data sharing, Software as a Service (SaaS), Data as a Service (DaaS), manufacturing agreements, consortium agreements, cooperation agreements, etc.;
- Advising on protection options for software and concepts;
- Acting on infringements of intellectual property rights on software;
- Assisting clients who have had a raid and are said to have insufficient software licences.
Do you have any questions in this area? Then contact us without obligation.
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What is IT-right?
Well-functioning
software is crucial for every company. Whether it is a production company or a service provider. The choice for new software is therefore an important moment. Both for the supplier and for the customer. The supplier has a duty of care here. After all, he knows that software is often crucial to the customer's business operations. The customer must ensure that his wishes and expectations are made clear and that he raises the alarm in time when things threaten to go wrong. Still, things sometimes go wrong. The customer buys a car and expects a Ferrari. The supplier delivers a Volkswagen and thus has delivered a car. The customer is not satisfied. And then the automation process may have failed.
What do we do?
Preliminary phase: we supervise the process leading up to the contract (formulating wishes and requirements, defining functional requirements, scope document);Drawing up the contract: establishing who does what, when, how, general conditions applicable, etc. But also agreements about user rights, what happens to data, how the supplier maintains the software (service level agreement), what if the customer wants to continue with other software, what if the supplier no longer supports the software, etc.Execution of contract: we advise on the implementation of the software, how to deal with delays ('fatal deadlines'), is the supplier fulfilling his obligations, how and when to complain, how and when to formally declare him in default, etc. Sometimes conflict mediation can offer a solution. For example, via the Technology Arbitration and Mediation Institute.Failed automation process: We advise on the timing and content of a notice of default, rescission of the contract, recovery of paid amounts, claiming additional damages, experts to be called in, etc. We have experience with IT procedures at the civil court and with arbitration at the SGOA. But sometimes alternatives are a better solution, such as first focusing on completion of the automation process (by a third party) and only then settling the conflict legally.- We act for suppliers and buyers. We therefore know the ins and outs of both positions.
Do you have any questions in this area? Then contact us without obligation.
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[post_content] => We are inclined to think that using the same trade name is not possible.
Is organisation A using a trade name? Then organisation B cannot use exactly the same name. If organisation B does it, this will quickly result in an infringement of the trade name right.
But it doesn't always have to be that way. I will explain how that can be.
WOW
I will take the recent
WOW judgment (in Dutch) as an example. The claimant in this case is Stichting WOW. Stichting WOW has registered a word and figurative mark with the Benelux Office for Intellectual Property (hereafter “
BOIP”).
In this case, Stichting WOW is suing the defendant WOW Lijnbaan B.V.. WOW Lijnbaan uses its trade name in various ways. What is clear is that it always uses the word 'WOW':
The question is whether WOW Lijnbaan is thereby infringing on the trademark and trade name rights of Stichting WOW.
Since the defendant's name is (at least partly) the same as the plaintiff's, we are inclined to think that there is infringement. But the court does not think so. Why is that?
Trade name
The basic principle is that an organisation may not use a trade name that is already in use at that time. There are exceptions to this principle, but I will not go into them now.
The court finds in this case that there is no confusion for the relevant public. The parties both serve a different geographical area. Stichting WOW is located in Rotterdam. WOW Lijnbaan is located in Amsterdam. The fact that WOW Lijnbaan also has plans to open a branch in Rotterdam does not matter, according to the court.
Trademark infringement
So is there an infringement of the WOW
trademark? No. The court ruled that the use of WOW has little distinctive character. It is not very creative. And so the scope of protection is small.
But that is not the only thing that is relevant in this case. The court also considered that the parties' use of the WOW signs was not identical. There are differences in their use. For example, because Lijnbaan WOW is almost always used in combination with the words "burgers & fries".
The court also finds it implausible that the public will think that the signs of WOW lijnbaan originate from Stichting WOW. So that parties in this case are mixed up. The court has ruled that the origin of the WOW signs cannot be mistaken. And so there is no trademark infringement.
Conclusion
The more original the trade name, the better. Creative trade names have a greater scope of protection. Non-creative names can also be protected. However, if a different geographical area and a different type of use of the name are involved, this protection can still be circumvented.
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