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Denmark: Scope of protection of Hermés’ Birkin bag trade marks

In two recent decisions from the Copenhagen Maritime and Commercial Court, Hermés did not succeed in their claims with respect to alleged trade mark infringements of a number of registered trade marks depicting the Birkin bag (photo).

The matters concerned two Danish importers (In-Hatex v/Carl Aage Andersen and Handelsselskabet Rudi og Harald Nielsen A/S) having imported and sold some bags made of plastic. Hermés International S.A. stated that the bags infringed Hermés’ copyrights as well as trade mark rights to the Birkin bag.

In both matters, the Court found that the Birkin bag was protected by copyright but that the importers’ bags were not sufficiently similar to the Birkin bag in order to constitute copyright infringement.

Hermés was the owner of various figurative and 3D trade marks depicting details of the Birkin bag as well as the bag in its entirety. With respect of the alleged trade mark infringements, the Court stated that the importers’ bags were not confusingly similar with the registered trade marks owned by Hermés. In this respect, in the case against In-Hatex, the Court mentioned that even if a number of detail imitations could be observed on the importers’ bags, a similar number of detail differences appeared. Further, the Court concluded that since Hermés’ trade marks consisted of the “shape of the bag” – and since the trade mark registrations did not include protection of the bag’s ideas and principles - the importers’ bags did not constitute infringements of any of the registered trade mark rights owned by Hermés. In the case against Handelsselskabet Rudi og Harald Nielsen A/S, the Court referred to the fact that the overall impression of the bags were sufficiently different in order to constitute trade mark infringements.

Finally, the Court found that import, marketing and sale of the bags were not in violation of the Danish Marketing Practices Act (protecting lookalikes).

[Addition by Mark: A kind reader of Class46 sent me the photos of the fake Birkins. Janne, forgive me for adding them here:]

Note: a German decision to similar effect has been sent to Class 46 by Andreas Lubberger (Lubberger Lehment). You can download it here.

Posted by: Janne Britt Hansen @ 07.01
Tags: 3d trade marks, Denmark, trademark infringement,
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MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.

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