Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.
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TUESDAY, 2 AUGUST 2011
Refill a Heineken cask with Olm: trade mark infringement?
Earlier this year - in March - they already crossed swords
with each other before the Presiding Judge of the District Court of The Hague
in summary proceedings: Dutch brewers Heineken and Olm. According to Heineken
Olm infringed Heineken's logo trade marks. The case attracted a lot of
publicity and a short footage of the hearing was even broadcasted by 'NOS
Nieuws' - the Dutch public broadcasting corporation's news (more here).
Apparently the parties came to a settlement at the hearing
and the matter silenced afterwards, but the silence was disrupted last week:
once again Heineken has started summary proceedings against Olm and once again
trade mark infringement is at the heart of the matter. Heineken now accuses Olm
of re-filling Heineken casks with (cheaper) Olm beer and selling those casks to bars and re-sellers. Heineken claims that Olm infringes the Heineken
trade mark(s) with such refills, while Olm counters with the argument that such
refills occur only occasional and are a consequence of the deposit system in
the Netherlands. The director of Olm holds that even Heineken sometimes refills casks of other trade marks, which is denied categorically by Heineken. The
Presiding Judge will hear the case on August 4, 2011.
This will probably be a first chance for a Dutch court to
review refills as under consideration according to the recent decision by the
ECJ on July 14, 2011 in the Viking Gas vs Kosan Gas (case C-46/10). The ECJ
decided (confirmed) that articles 5 and 7 of First Council Directive 89/104/EEC
must be interpreted as meaning that the holder of an exclusive licence for the
use of composite gas bottles intended for re-use, the shape of which is
protected as a three-dimensional mark and to which the holder has affixed its
own name and logo that are registered as word and figurative marks, may not
prevent those bottles, after consumers have purchased them and consumed the gas
initially contained in them, from being exchanged by a third party, on payment,
for composite bottles filled with gas which does not come from the holder of
that licence, unless that holder is able to rely on a proper reason for the
purposes of article 7(2) of Directive 89/104.
Posted by: Gino Van Roeyen @ 20.44
trade mark infringement, Netherlands, refill, Heineken, Olm, proper reason,
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