The boomerang fine
29 April 2013
Chambers Europe 2013: success for Hoogenraad & Haak
04 April 2013
The Consumer Authority, NMa and OPTA are dead, long live the ACM!
28 March 2013
Letting people ‘like’ Lätta is not always advertising
22 March 2013
Petty IP protection by Dutch police
08 March 2013
Reporting private label mandatory for cartridges
01 March 2013
Wehkamp: "fast" delivery
22 February 2013
Only for AH Bonus cardholders
15 February 2013
Health claims: information is allowed!
15 February 2013
UNDERCOVER IN NEDERLAND IS ALLOWED TO BROADCAST SECRETLY SHOT IMAGES
25 January 2013
Always HEMA! The sequel ...
04 January 2013
Dutch Data Protection Authority publishes internal reference work on the Data Protection Act
24 December 2012
Better basis for agency income during notice period
14 December 2012
D-day for health claims 14 December 2012
12 December 2012
Wine may not be called "easily digestible"
08 December 2012
Bed & Breakfasts must pay for the fact that they offer television in their rooms
07 December 2012
Limited extent of infringement, lower cost order?
06 December 2012
Becel Pro-activ: no lies
03 December 2012
As long as the disclaimer is legible
28 November 2012
The Claim List in Dutch practice: Anticipation and alternative wordings
27 November 2012
Reputation management
23 November 2012
Switching to Oxxio? Free iPad or not?!
22 November 2012
Is acquired distinctiveness in the Netherlands sufficient for trademarks?
21 November 2012
The difference is only noticeable in a direct comparison
14 November 2012
Red Bull / Lamborghini: a bull fight about genuine use
10 November 2012
New nutrition labeling rules in the UK: pay attention to the traffic lights!
07 November 2012
Brain-blasting blocks, are they protected?
02 November 2012
Hans Anders must listen up!
01 November 2012
Kraft Foods may also market "pure" chewing gum
24 October 2012
Pownews - The more provocative, the more margin
12 October 2012
Colors can change information about medicines into advertisement
11 October 2012
Snack sensibly …
10 October 2012
Old software on the digital shelf
09 October 2012
Telefoongids.com vs. SP: reputation management pur sang
08 October 2012
Google top-ads
08 October 2012
Talensshop.nl: trademark use in a domain name
05 October 2012
No design protection for technically determined characteristics
04 October 2012
Limo for all
03 October 2012
Boundaries of the visual quote
02 October 2012
The Postcode Lottery: Everyone's a winner?
28 September 2012
Tros Radar may again be critical about the BioStabil
14 September 2012
Neelie Kroes wishes rapid change in copyright law
11 September 2012
Fruity Dutch advertisements: how misleading are they?
04 September 2012
Third Party Trademark Use in Non Commercial Publications
31 August 2012
Sweetener from nature
16 August 2012
The freedom of expression of the Advertising Code Committee
08 August 2012
100% Organic? Well-substantiate this claim!
20 July 2012
Athletes in advertising during the Olympics: Rule 40 Guidelines
19 July 2012
Publication: 10 years General Food Law in The Netherlands
13 July 2012
European Commission poposes easier music licensing
10 July 2012
The Dutch Telemarketing Code revised
22 June 2012
Music publishing: wake-up call
22 June 2012
National Postcode Lottery's been hit in the wallet!
15 June 2012
Dutch newspaper De Telegraaf is not allowed to publish program details
12 June 2012
An A-brand: what's in a name?
11 June 2012
Alpro Mild & Creamy: no yoghurt, but a yoghurt alternative
10 June 2012
OK to show Prime Minister Rutte laughing (or even scoffing)
09 June 2012
Rutte doesn't want to be a poster child for Dance Valley
08 June 2012
Janey, impossible to capture on film
08 June 2012
Chipshol: advertising the concept that X is a bad guy
07 June 2012
Expanded possibilities for using AdWords
07 June 2012
Medication advertising: “… relieves the pain where you need it”
06 June 2012
GasPedaal.nl/AutoTrack.nl: substantial database access or not?
31 May 2012
Food and Product Watchdogs
30 May 2012
Marktplaats: no prior check for copyright violation
20 May 2012
List of health claims finalised at last
17 May 2012
Stringent rules for tracking cookies
16 May 2012
Car industry beware: entry price should include delivery costs!
11 May 2012
Dutch Cookie Act is amended
04 May 2012
Slimbread: also Board of Appeal applies article 13-list of the Claims Regulation
02 May 2012
Hoogenraad & Haak wins BALTERIO-case
24 April 2012
Hoogenraad & Haak wins pudding case for De Natuurhoeve!
23 April 2012
Hoogenraad & Haak Advertising Law Firm 2012!
18 April 2012
Vichy misleads consumers with advertisement for anti-aging cream
11 April 2012
Legal 500 recommends Hoogenraad & Haak for IP and Media+Entertainment
03 April 2012
Trade union FNV may use laughing prime minister Rutte in TVC.
22 March 2012
Hoogenraad & Haak listed in The World's Leading Trademark Professionals
07 March 2012
On copyright Protection for databases (CJEU: Football Dataco)
02 March 2012
Slimbread: RCC prematurely applied article 13-list Regulation on Claims?
28 February 2012
Gillette vs. Wilkinson: which razor blade results in the smoothest shave?
25 February 2012
New Labelling Regulation
15 February 2012
Is a voice protected?
13 February 2012
Rectification posters in all Dirk van den Broek stores
10 February 2012
Caroline II: Entertainment press - Government Information Service 1-1
01 February 2012
Albert Heijn successfully claims correction of comparative advertising
20 January 2012
Hema misleads: Always or forever?
20 January 2012
Calendars, posters and canvases: different ways of exploitation?
14 January 2012
BREIN vs. Ziggo and XS4ALL: from the phantom ship to the gangway
23 December 2011
Gillette and Wilkinson: comparative advertising
20 December 2011
ECtHR RTBF/Belgium: Preventive publication ban not provided by law
20 December 2011
New advertising code Email
15 December 2011
222 approved health claims
05 December 2011
Credit warning on sponsored shirts?
05 December 2011
NEWS 2011-3, Hoogenraad & Haak, Advertising+IP Advocaten
02 December 2011
In-house forwarding a digital newsletter - is that allowed?
28 November 2011
Service station(s) breach Dutch alcohol legislation
25 November 2011
Starting from € xxx bargains: watch out!
24 November 2011
Facebook maintains strict advertising rules
22 November 2011
Swan song of the paper collection of cuttings
21 November 2011
TUC and Apéro: the point of trademark packaging
19 November 2011
Maarten Haak chairs autumn meeting of Benelux Trademark and Design Association 2011
18 November 2011
Bullfight: Red Bull / Osborne (TORO XL)
17 November 2011
"What you see is what you get"... (or not?)
16 November 2011
The "Gouden Windei" contest: misleading product names?
15 November 2011
Greetings from the neighbours!
15 November 2011
Honors for Hoogenraad & Haak
27 October 2011
The Oxxio-guy in a tv commercial of NLEnergie is permissible humour!
17 October 2011
Commercial Code for Alcohol follows the mood of the moment
29 September 2011
Old Amsterdam cheese is in fact a youngster!
23 September 2011
Interflora: on brand names, AdWords and comparative advertising
21 September 2011
Miffy parody allowed (Netherlands)
20 September 2011
Discount is not 'free'
30 August 2011
Qualifications of the chairman of the Advertising Code Committee (ACC)
15 August 2011
Limburg Asparagus cream soup: not misleading
03 August 2011
Implied consent LinkedIn for using photos and names
29 July 2011
Parody, not a tobacco advertisement
20 July 2011
Mediq must change its logo
18 July 2011
Web shops can be held liable for the sale of counterfeit goods
08 July 2011
Advertising law + IP NEWS 2011-02
06 July 2011
De Natuurhoeve wins packaging case against FrieslandCampina
04 July 2011
One stop shop for copyrights?
27 June 2011
Health claim in Google Ad or Twitter?
17 June 2011
Maurice de Hond - convicted under civil law and criminal law
10 June 2011
Copyright ready for a change
01 June 2011
Volume of television commercials is turned down!
27 May 2011
Slips, cups and extra straps
25 May 2011
New SMS Advertising Code as of 15 May 2011
17 May 2011
Cheers!
10 May 2011
Apprentice Uitgevers must publish a rectification in the journal Adformatie
21 April 2011
Constraint against DVD pirates
19 April 2011
New logo Air France lacks distinctiveness
08 April 2011
Mentioning BHP in advertisements for cars?
04 April 2011
Hotelkamerveiling.nl / Hotelveiling.nl: descriptive trade names
01 April 2011
Online prior art in Community Design Law
31 March 2011
Dictated by their technical function
23 March 2011
ECJ Adword case: Louis Vuitton loses case from Google
22 March 2011
MyP2P must stop showing live streams
15 March 2011
Advertising law + IP NEWS 2011-01
11 March 2011
Dafurnica: Is free speech at risk?
10 March 2011
Hoogenraad & Haak: Advertising Law Firm of the Year
25 February 2011
About computer monitors and beer
14 February 2011
Speedy settlement decisions of the RCC
10 February 2011
Transfer from poster to canvas copyright infringement in the Netherlands?
07 February 2011
The claim “100% biodegradable” violates the Environmental Advertising Code
28 January 2011
KOAG / KAG website compliance
04 January 2011
Energy+ constitutes unlawful comparative advertisement by using the AdWord TEMPUR
24 December 2010
Again a new Dutch advertising code: The Code Postfilter
10 December 2010
Advertising Law + IP NEWS | newsletter on Dutch and EU developments
10 December 2010
Suit Supply billboards are permitted!
29 November 2010
Adult movie star Kim Holland successfully sews videosite for copyright infringement (Netherlands)
26 November 2010
Editorial Swinglevend with hyperlink to website = still advertising!
18 November 2010
False advertising in the Netherlands
12 November 2010
The case of Sinterklaas
01 November 2010
Netherlands: “100% natural flavour“ is allowed!
21 October 2010
Olm: Ad fundum or ad Advertising Code Committee?
17 October 2010
Complaints about film poster for horror 'Sinterklaas'
08 October 2010
Guidelines for clinical information
01 October 2010
Health claims: some time left
15 September 2010
ECJ: no trademark protection for Lego brick
10 September 2010
Advertising law + intellectual property NEWS - the Netherlands | Hoogenraad & Haak advocaten
25 August 2010
Apple puts a stop to the eiPott
19 August 2010
30 seconds RECTIFICATION ON TV | Netherlands comparative advertising
13 August 2010
Wakker Dier may continue broadcasting its radio commercial against the C1000
04 August 2010
No pictures please: Portrait Rights in the Netherlands
26 July 2010
EU Report on Customs Enforcement
21 July 2010
Ziggo does not have to block The Pirate Bay
14 July 2010
ECJ: Additional rules for brand AdWords and trademarks
08 July 2010
One year free electricity: not for everyone!
29 June 2010
top level domain .xxx for adult content
24 June 2010
Advertising law + intellectual property NEWS 2010-02
22 June 2010
Balloons are more dangerous than you think! | Hoogenraad & Haak advocaten
17 June 2010
New green EU-logo for organic products
04 June 2010
Mandatory warning for food colours in sweets
27 May 2010
Board of Appeal upholds cancellarion Crocs RCD
26 May 2010
Chambers Europe recommends Hoogenraad & Haak for IP in the Netherlands
25 May 2010
GeenStijl: Broad interpretation of press exception
20 May 2010
The flash regulation: acquire permission first
06 May 2010
The song remains the same: no entitlement to SENA-monies for studio producer
29 April 2010
Not satisfied: no delivery costs!
23 April 2010
Infringement? Trademark owner has many tools.
10 April 2010
Advertising Code Commission: no trademark and copyright issues anymore!
10 April 2010
Advertising Code Commission: no trademark and copyright issues anymore!
26 March 2010
Hoogenraad & Haak increases its team
17 March 2010
Not 16? Not a drop
05 March 2010
EFSA again rejects a lot of health claims
25 February 2010
A less good defence: "I did'n know that IP right"
24 February 2010
Fatboy, the Original?
13 February 2010
The end of cookie-advertising on day nurseries
04 February 2010
Dutch Consumers' Association loses in summary proceedings against T-Mobile and Vodafone.
27 January 2010
Is the use of a CTM in only one member state enough?
22 January 2010
Buma/Stemra: sink or swim
21 January 2010
Slogans can be a trademark after all!
15 January 2010
Not paying the SRC- contribution? Advertisers on black list
07 January 2010
Not 16? Not a drop
24 December 2009
Miffy now has its line after all - copyright law in the Netherlands
17 December 2009
Zero communication costs for promotional game of chance
14 December 2009
Advertising law + intellectual property NEWS 04/2009
12 December 2009
Advertising Congress 2009: broader definition of advertising
11 December 2009
.eu domain names: also in Chinese and Greek
19 November 2009
Swinglevend II: Referring to 'an expert' is also not permitted
16 November 2009
What 'virtual' reality?
02 November 2009
Calcium and vitamin D for bone growth kids!
28 October 2009
Jackpot € 27,5 million will fall guaranteed = not misleading
22 October 2009
Artisanal supermarket bread not misleading
15 October 2009
EFSA strict on article 13.1 ‘general function’ claims!
06 October 2009
Low threshold for CTMs to gain a reputation
02 October 2009
Stricter rules CO2 fuel consumption since 1 October 2009!
01 October 2009
No more ringtones and branded sports equipment for alcohol advertising
22 September 2009
AdWord use of trademarks not infringing, Google not liable
18 September 2009
Socialist Party sends unwanted advertising material
08 September 2009
No Dutch ban on advertisement for sweets
06 September 2009
Are LEGO blocks protected in the Netherlands?
26 August 2009
Mininova ordered to remove bit torrents
21 August 2009
The Elwood rules: copyright law in the Netherlands
11 August 2009
KPN and Getronics oppose against abuse
06 August 2009
Increased control by VWA for compliance with Nutitrion claims!
31 July 2009
Who has the rights on the campaign posters of Obama?
24 July 2009
Just-Eat: no tradename nevertheless unlawful!
17 July 2009
Swinglevend article '12 cents per day' = advertising
09 July 2009
No brand protection for BOUNTY bar
03 July 2009
Copyrights belong to client?
20 June 2009
L'Oréal/Bellure: new rules for marks with a repute
18 June 2009
NUCLEAR ENERGY IS NOT ‘CLEAN ENERGY’
11 June 2009
Trademark owners: register with Facebook!
05 June 2009
Thou shallt not spam
23 May 2009
Sapph lingerie ‘Less Dress to impress’ is allowed
28 April 2009
British anti-domestic violence ad too brutal to be shown
24 April 2009
Sarkozy, do not complain!
15 April 2009
Fraude Chamber of Commerce stopped
09 April 2009
2 new advertising codes since 1 April 2009
01 April 2009
Caution: Borrowing money costs money
28 March 2009
Organic coloured Easter eggs
20 March 2009
CROCS under fire: Makro sells 'Clogs'
16 March 2009
A snowstorm of Nijntjes
05 March 2009
Dutch Advertising Code Committee: “Nuclear energy is not clean”
23 February 2009
MPC4 advertorial = advertisement (life without pain)
13 February 2009
Dedicated search engine infringes database rights
16 January 2009
Stunting with Björn Borg boxer shorts
30 December 2008
Dutch Senate passes new Media Act
19 December 2008
Starting January 1st: no more alcohol commercials between 6.00 am and 9.00 pm
15 December 2008
PepsiCo wins summary proceedings against G-Star
12 December 2008
Tell-a-friend permitted under conditions
01 December 2008
No absolute protection for famous marks
17 November 2008
Final Sale and 'the bottom line'
17 October 2008
LIEF! distinctive for children and baby clothes
03 October 2008
Johma free-range egg salad: What's in a name?
12 September 2008
Quit drinkers? Snow Beer is coming!
22 August 2008
This parody was not allowed. Justified or not?
30 June 2008
Are comments of buzzers commercial communications?
26 June 2008
Website liable for 'user generated content'?
19 June 2008
New Advertising Code for Alcoholic beverages from 1 July 2008
15 June 2008
O2: No trademark action against comparitive advertising!
11 April 2008
Official opening Hoogenraad & Haak advocaten
03 April 2008
Antispam rules could block news (Netherlands privacy)
25 February 2008
New Commercial Code: deception and dishonest trade
24 February 2008
Wilders, Marlboro and the International Socialists (Dutch portrait law)
15 February 2008
Comparative advertising: more use of trade marks?
29 January 2008
Chasing illegal downloaders more difficult
21 January 2008
Numerical .nl domain names also possible
14 December 2007
Ebba Hoogenraad chairs Advertising Congress
03 December 2007
Hoogenraad & Haak advocaten in Emerald House
24 September 2007
New niche firm advertising + intellectual property
ENERGY+ CONSTITUTES UNLAWFUL COMPARATIVE ADVERTISEMENT BY USING THE ADWORD TEMPUR
Energy+ sells mattresses on the internet. Just like the well known TEMPUR products, these mattresses contain a specific viscoelastic material. To generate more traffic to their website, Energy+ uses the signs “tempur” and “tempoer” as AdWords. A Google search with these terms leads to several advertisements of Energy+ mattresses. According to Tempur this use constitutes infringement of its trademark TEMPUR.
This advertisement method is a form of comparative advertisement, according to the court of The Hague. Comparative advertisement is permitted under certain conditions. For example, comparative advertisement may not lead to “unfair advantage”. If Energy+ takes unfair advantage from the comparative advertisement, this will constitute a trademark infringement of the well known trademark TEMPUR. According to the court, the mere fact that a Google search with the AdWord “tempur” leads to an advertisement of Energy+, does not lead to unfair advantage. In other words, the use of a competitor’s trademark as AdWord is not necessarily prohibited.
Yet according to the court, Energy+ does not fulfil the conditions for lawful comparative advertisement, since the advertisements do not make a clear distinction between the products of Tempur and the products of Energy+. The advertisements emphasize the qualities on which the reputation of the Tempur products is based (the quality and the pressure lowering effect of the mattresses). The public could therefore attribute the reputation of the Tempur products to the products of Energy+. The advantage resulting from this form of advertisement is unfair according to the court. Energy+ benefits without any financial compensation for the commercial effort that Tempur has made to create and maintain its reputation. In short, by using the AdWords “tempur” and “tempoer”, Energy+ infringes the trademark rights of Tempur.
In its judgment, the Hague court states a new requirement for comparative advertisement: a clear distinction of the compared products. This seems bad news for the so-called parity claims, such as “same quality as X, but 20% cheaper”. However, the ruling is very favourable for trademark owners who want to prevent others from using their trademark as AdWord. And for those who do not have a trademark to rely on; you may come a long way with an appeal to the strict rules of comparative advertisement.
Eva den Ouden en Daniël Haije
|
office Emerald House Jozef Israëlskade 48-G Amsterdam, the Netherlands t +31 (0)20 - 305 3066 www.hoogenhaak.nl |
post PO Box 76780 1070 KB Amsterdam e info@hoogenhaak.nl f +31 (0)20 - 305 3069 chamber of commerce 34314579 |
ENERGY+ CONSTITUTES UNLAWFUL COMPARATIVE ADVERTISEMENT BY USING THE ADWORD TEMPUR
Energy+ sells mattresses on the internet. Just like the well known TEMPUR products, these mattresses contain a specific viscoelastic material. To generate more traffic to their website, Energy+ uses the signs “tempur” and “tempoer” as AdWords. A Google search with these terms leads to several advertisements of Energy+ mattresses. According to Tempur this use constitutes infringement of its trademark TEMPUR.
This advertisement method is a form of comparative advertisement, according to the court of The Hague. Comparative advertisement is permitted under certain conditions. For example, comparative advertisement may not lead to “unfair advantage”. If Energy+ takes unfair advantage from the comparative advertisement, this will constitute a trademark infringement of the well known trademark TEMPUR. According to the court, the mere fact that a Google search with the AdWord “tempur” leads to an advertisement of Energy+, does not lead to unfair advantage. In other words, the use of a competitor’s trademark as AdWord is not necessarily prohibited.
Yet according to the court, Energy+ does not fulfil the conditions for lawful comparative advertisement, since the advertisements do not make a clear distinction between the products of Tempur and the products of Energy+. The advertisements emphasize the qualities on which the reputation of the Tempur products is based (the quality and the pressure lowering effect of the mattresses). The public could therefore attribute the reputation of the Tempur products to the products of Energy+. The advantage resulting from this form of advertisement is unfair according to the court. Energy+ benefits without any financial compensation for the commercial effort that Tempur has made to create and maintain its reputation. In short, by using the AdWords “tempur” and “tempoer”, Energy+ infringes the trademark rights of Tempur.
In its judgment, the Hague court states a new requirement for comparative advertisement: a clear distinction of the compared products. This seems bad news for the so-called parity claims, such as “same quality as X, but 20% cheaper”. However, the ruling is very favourable for trademark owners who want to prevent others from using their trademark as AdWord. And for those who do not have a trademark to rely on; you may come a long way with an appeal to the strict rules of comparative advertisement.
Eva den Ouden en Daniël Haije