Netherlands jurisdiction report: A steaming case concerning saunas
Relaxbaden argued that Carelife was infringing its Benelux wordmark ‘Nobelsaunas’, as Carelife was using the keywords ‘nobel’ and ‘nobel saunas’ in three different advertisements. In the proceedings, Relaxbaden requested an immediate injunction and ancillary claims to provide information on the scope and duration of the infringement.
The court first constructed an overview out of the jurisdiction of the Court of Justice of the European Union (CJEU) and concluded from its overview that first, whether the use of the keywords is detrimental to the mark’s functions must be assessed.
The court based this statement on the few leading CJEU cases that involved keywords: Google France (C-236/08), Bergspechte (C-278/08), Portakabin (C-558/08) and Interflora/Marks & Spencer (C-323/09). From this case law it follows that the identification function of the trademark is harmed when internet consumers cannot (easily) know whether the goods the advertisement refers to stem from the trademark owner, a party economically linked to the trademark owner or a third party.
Relaxbaden claimed that Carelife was harming the function of indicating the origin of the mark, one of the crucial functions of a trademark. Carelife contested this, stating that it was clear it referred to alternative saunas and/or secondhand saunas in all three advertisements and that it was unreasonable to expect it to insert “secondhand” into its adverts.
Admissibility
To ascertain whether any detriment was brought upon the mark’s function to indicate origin, the court looked into the admissibility of these three advertisements.
The court found that the first advert made it quite difficult for the average internet user to determine whether the presented saunas originated from the trademark owner or a party economically linked to it or, alternatively, originated from a third party, as it was not clear from the advertisement that it concerned alternative or secondhand saunas. This conclusion was applied to the second and third adverts.
