Use of bread crates by competitor constitutes trademark infringement

Market Food Group is proprietor of the figurative trademark ‘Bakkerij ’t Stoepje’. The company is known for their big yellow trucks with red letters. MFG delivers confectionery (including bread) to franchisees and other parties. For the biggest part these other parties consist of market traders. MFG delivers these products by use of yellow crates with the trademark of ‘Bakkerij ‘t Stoepje’. The market traders also buy confectionery from MFG’s competitor ‘De Bakkerie’. In order to carry these products they sometimes provide MFG-crates to de Bakkerie, who fills and returns them to the market traders. The MFG-crates are easy to pile up, which is why they often appear visible in the stalls of the market traders. As a consequence of this consumers see crates of ‘Bakkerij ’t stoepje’, while these crates are actually filled with breads from competitor De Bakkerie. The court rules: trademark infringement. The fact that it is not clear to consumers where the bread comes from gives rise to confusion about the origin of the products.
 
De Bakkerie tried to defend itself by stating that the trademark rights on these crates have been exhausted. Exhaustion occurs when products that carry a trademark (in this case: the crates) have been put on the market in the Community with consent of the proprietor. Not a valid argument in this case, since the crates remained in ownership of MFG. MFG lent these crates to the market traders but did not ‘put them on the market’. Lesson to be learned: be careful to use provided ‘packaging’ that is labelled with another trademark, it cannot freely be used by others than trademark owner.  

Daan van Eek