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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Netherlands: Not so fine for 'FINO'
With a decision of 16 September 2008, the Presiding Judge of the District Court The Hague (P.G.J. de Heij) lifted a seizure order on scooters, which had been filed for by the Dutch company Mm-Exclusief B.V. against the Dutch company Asiangear B.V. Both companies are whole sale scooter traders and both import scooters from China. In the request to get permission for the seizure, Mm-Exclusief argued that the scooters imported by Asiangear infringed Mm-Exclusief's CTM for the trade mark 'FINO'. Asiangear started summary proceedings to have the seizure lifted and succeeded.
The seizure was lifted because an opposition was pending against the trade mark 'FINO'. The trade mark registration was therefore not final yet (Art. 6 and 9 par. 3 CTMR) and Mm-Exclusief could not obtain a valid seizure on the basis of this CTM. In this case there is no room for a claim for compensation of the trade mark owner as set out in in Art. 9 par. 3 CTMR* for facts that occured after the publication of the trade mark application. Mm-Exclusief is held liable for the damage of Asiangear. In summary proceedings an advance payment of damages can be obtained only if the claim for damages is sufficiently plausible and the facts and circumstances of the case require an immediate remedy; there has to be a so-called "urgent interest" on the plaintiff's side. The Presiding Judge furthermore has to take into account the so-called "risk of refunding".
Asiangear's claim for a an advance payment of damages was awarded to a certain extent: Mm-Exclusief was orderd to pay the extra storage costs and out of court cost. Furthermore Mm-Exclusief had to pay the court costs of Asiangear according to 1019h Dutch CPC (€ 10.233,53 according to Asiangear's overview of costs which Mm-Exclusief did not fight).
Class 46: Art. 9 par. 3 CTMR provides as follows:
The rights conferred by a Community trade mark shall prevail against third parties from the date of publication of registration of the trade mark. Reasonable compensation may, however, be claimed in respect of matters arising after the date of publication of a Community trade mark application, which matters would, after publication of the registration of the trade mark, be prohibited by virtue of that publication. The court seized of the case may not decide upon the merits of the case until the registration has been published.
Tags: Benelux case law, case law, Lift seizure in summary proceedings, Seizure,
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