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AKD wins case for Winters

January 2012

AKD has represented Frisdranken Industrie Winters (a member of Refresco) in legal proceedings initiated by Red Bull.

Red Bull claimed that Winters infringed on its trademark rights through using signs similar to its trademarks when filling cans for one of Winters' clients. 

Winters filled cans with soft drinks on the instructions of Smart Drinks Ltd, a competitor of Red Bull. Smart Drinks provided Winters with empty cans with matching lids for this purpose. These contained various signs, some of which were similar to Red Bull's trademark.  Smart Drinks also provided Winters with the extract for the soft drink. Red Bull brought an action before the Dutch courts claiming that Winters had infringed its trademark rights. This would be the case if based on a literal interpretation of the law. It was argued on Winters' behalf that a party that only fills cans for a third party cannot infringe on trademark rights. The lower courts in the Netherlands did not agree with this standpoint. AKD lawyers Peter Claassen and Martin Hemmer subsequently petitioned for the case to be brought before the European Court of Justice.

Ruling of the Court
The Court upheld the position argued on Winters' behalf that if a party is paid for providing technical facilities needed for using a sign, this does not mean the party providing this service is using the sign. The party providing this service is only executing a technical component in the production process of the final product and does not have any interest in the appearance of the cans, specifically the similar features found on the cans. This party solely provides technical facilities needed for use by the third party. The Court responded that the Trademark Directive must be interpreted in the following manner: a services provider commissioned by a third party to fill packaging provided by the third party does not infringe on trademark rights. According to the Court there is no connection between the signs and the filling service.

In this case, Winters was assisted by AKD Intellectual Property law specialists Peter Claassen, Martin Hemmer en Roderick Chalmers Hoynck van Papendrecht.

About AKD
Employing a team of 200 lawyers and civil-law notaries, AKD is one of the largest legal services providers in the Netherlands. Based on a comprehensive service model and a personal approach, the firm provides high-quality services to its clients in virtually all legal areas. AKD maintains branches in Amsterdam, Breda, Eindhoven, Rotterdam, and Brussels.

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