Thursday, August 8, 2013
Since 2009, wholesale jeweller AllRound has sold a piece of jewellery under the name ‘Mi Moneda’, a pendant containing a coin. Since 2010 competitor Dutch Designz has put a similar piece of jewellery on the market and AllRound is not happy about it.
After going to the preliminary relief court, the parties eventually ended up at the Court of Appeal in The Hague via proceedings on the merits. AllRound did not invoke protection due to copyright before the Court of Appeal but “slavish imitation”. This means that the main rule applies that imitation of a product is permitted in principle as long as the competitor does everything in its power to prevent unnecessary confusion between the original product and the imitation.
It is up to the Court of Appeal to determine whether unnecessary likelihood of confusion is lurking. The Court of Appeal acted on the overall impression of both products amongst women aged between 16 and 40 in the Netherlands. The Court of Appeal ruled that the overall impression of the pendants is that they are too similar. Dutch Designz could have differed from the Mi Moneda pendants without infringing the reliability and practicability of the piece of jewellery. Confusion could occur. According to the Court of Appeal Dutch Designz has not done everything reasonably possible to prevent this confusion. Conclusion: there is a case of slavish imitation. AllRound wins the case.
Dorothée de Rooy
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