NEWSLETTER JULY 2023
Trademark LAW
The CJEU to decide whether the use of “IKEA” in a right-wing campaign for immigration politics is an infringement of IKEA’s trademark rights
The Dutch Enterprise Court in Brussels has requested for a preliminary ruling regarding the use of the well-known “IKEA” trademark.
The Flemish/Belgian political party Vlaams Belang used the “IKEA” trademark in a political campaign where IKEA was short for “Immigratie Kan Echt Anders” (in English “immigration can be different”). As part of the campaign, the party had made a manual (similar to IKEA’s assembly manuals) with instructions on how to create “different” immigration politics.
Following this, IKEA decided to sue the political party for trademark infringement which raises questions about the balance between freedom of speech and trademark rights. Thus, the CJEU shall now decide whether freedom of expression, including freedom of speech as stated in article 10 in ECHR constitutes “due cause” for using a sign similar or identical to a well-known trademark. Also, the Court has asked CJEU for the criteria to be taken into account when assessing the balance between fundamental rights and IP-infringement.
In Denmark, a similar case was concluded in May 2023 where the Supreme Court had to decide whether the Danish newspaper Berlingske’s use of imagery containing the Little Mermaid was an infringement of the Danish Copyright Act. Read more about the Little Mermaid case in BUGGE VALENTIN’s newsletter from May 2023.
The summary of the request for the preliminary ruling can be read here.
The CJEU finds 3D-trademark of a bottle distinctive but rejects it on functionality reasons
On 5 July 2023, the CJEU ruled that a bottle could not be registered as a 3D-trademark even though it had sufficient distinctiveness.
The Court rejected the 3D-registration based on the functionality of the bottle. The Court hereby confirmed the BoA’s decision stating that the essential characteristics of the application achieved technical functions. The plaintiff, Wajos, argued that the characteristics were unusual and aesthetic. Yet, the Court found that even though the characteristics were unusual and aesthetic, this did not prevent art. 7 (1) (e) (ii) EUTMR from applying.
As art. 7 (1) (e) (ii) EUTMR ensures that forms of products that only embody a technical solution cannot be registered – as such registration would prevent others from using the same technical solution – the Court dismissed the appeal and denied the registration.
The decision can be read here. Currently only available in German and French.
The Danish Eastern High Court repeal decision to issue a preliminary injunction against the use of “FORZA”, “FORZA FIGHTING” and “FORZA SPORTSWEAR”
On 7 July 2023, the Danish Eastern High Court decided to repeal a preliminary injunction issued by the Danish Maritime and Commercial High Court against the defendants’ use of i.a. the word “FORZA” for their businesses and use in connection with sale and marketing of sportswear and sports equipment.
The Eastern High Court found that although Denmark was available as a delivery option on the defendants’ website, the defendants’ marketing and offers for sale were not targeted at consumers in Denmark. The Court also found that there was not sufficient proof of any previous sales of the disputed products to retailers in Denmark nor any future plans of such.
Consequently, the Court concluded, contrary to the Maritime and Commercial High Court, that the plaintiffs had not been able to prove that a preliminary injunction was necessary to effectively protect their trademarks rights.
The Danish Eastern High Court’s decision can be read in Danish here.
Marketing Practices Law
The Danish Consumer Ombudsman has reported BMW Denmark to the police for misleading marketing practices in greenwashing-case
The Danish Consumer Ombudsman has found that a marketing campaign by BMW Denmark where BMW marketed themselves as "The world's most sustainable car manufacturer" was a breach of the Danish Marketing Practices Act.
It was determined that the measures taken by BMW to produce cars in a less environmentally harmful way did not exceed those taken by other car manufacturers. Therefore, the statements made by BMW were misleading to consumers. Consequently, BMW Denmark were reported to the police, which is in line with what the Consumer Ombudsman had warned companies about earlier this year in a similar case reported on by BUGGE VALENTIN in the January newsletter.
Lastly, the Consumer Ombudsman advised companies in general to market themselves with concrete information instead of using broad and unspecific statements.
The press release can be read in full in Danish here.
Firewood, briquettes, and woodburners can not be advertised as environmentally friendly
On 21 July 2023, in yet another greenwashing-case, the Danish Consumer Ombudsman released a press release stating that 23 companies, who were using terms such as “environmentally friendly”, “good for the environment”, “CO2-neutral” (translated from Danish) etc. were misleading consumers.
Emission from the burning of firewood is, according to the Danish Environmental Protection Agency, the biggest contributor to particle pollution. The phrases used for advertising were thus misleading as the consumers were left with an incorrect impression of pollution from the firewood.
However, the Consumer Ombudsman found that it would be in accordance with Danish Marketing law, if the marketing instead used phrases such as “less environmentally damaging woodburner”.
The Consumer Ombudsman’s harsh stance on greenwashing and the growing number of cases sends a clear message to companies operating in Denmark that they must be careful when issuing marketing statements regarding products’ environmental impact.
The press release can be read in Danish here.