CLASS 99
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MONDAY, 15 NOVEMBER 2010
Pilgrim's Pyrrhic victory?
"I bought it in China - I had no idea it was a copy". Can a company these days pass the buck to their Chinese supplier, or should they not at least ask the question? This seems to have been the issue in Pilgrim A/S v Dansk Smykkekunst A/S (Maritime and Commercial Court, August 17 2010, Case V-6-09), reported by Mads Marstrand-Jørgensen of Norsker & Co in the ever-helpful International Law Office newsletter.
Pilgrim sued on the basis of a men's necklace. They failed to cross the copyright threshold, and Denmark's usually-reliable Marketing Practices Act let them down because they did not establish Danish sales, apparently. However, subsistence and infringement of Unregistered Community Design right were found. A good result? Alas, no. The Court held that Pilgrim should have no damages or compensation because "the Court is not satisfied that Dansk Smykkekunst has known or should have known Pilgrim's necklace" and, indeed, they made Pilgrim pay Dansk's costs.
Somehow, it seems wrong to us that the proprietor, after infringement has been shown, has to pay the infringer's costs because the infringer did not determine that the goods were infringements. On the one hand, of course, it is generally better to chase the copyist and manufacturer rather than the retailer. But on the other, that is far from easy when they are located abroad - and they know it. So we think it is just a bit too easy these days to play the innocent or ignorant importer. Is there anyone out there who is unaware that fakes can be bought in the Far East? We doubt it.
But what do you think? Posted by: David Musker @ 17.34
Tags: copyright, costs, damages, Denmark, innocence, unfair competition, unregistered design right,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA186
Pilgrim's Pyrrhic victory?
"I bought it in China - I had no idea it was a copy". Can a company these days pass the buck to their Chinese supplier, or should they not at least ask the question? This seems to have been the issue in Pilgrim A/S v Dansk Smykkekunst A/S (Maritime and Commercial Court, August 17 2010, Case V-6-09), reported by Mads Marstrand-Jørgensen of Norsker & Co in the ever-helpful International Law Office newsletter.
Pilgrim sued on the basis of a men's necklace. They failed to cross the copyright threshold, and Denmark's usually-reliable Marketing Practices Act let them down because they did not establish Danish sales, apparently. However, subsistence and infringement of Unregistered Community Design right were found. A good result? Alas, no. The Court held that Pilgrim should have no damages or compensation because "the Court is not satisfied that Dansk Smykkekunst has known or should have known Pilgrim's necklace" and, indeed, they made Pilgrim pay Dansk's costs.
Somehow, it seems wrong to us that the proprietor, after infringement has been shown, has to pay the infringer's costs because the infringer did not determine that the goods were infringements. On the one hand, of course, it is generally better to chase the copyist and manufacturer rather than the retailer. But on the other, that is far from easy when they are located abroad - and they know it. So we think it is just a bit too easy these days to play the innocent or ignorant importer. Is there anyone out there who is unaware that fakes can be bought in the Far East? We doubt it.
But what do you think? Posted by: David Musker @ 17.34
Tags: copyright, costs, damages, Denmark, innocence, unfair competition, unregistered design right,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA186
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