15 fake hoodies
‘I have no idea whether the items you mentioned are a brand or a piece of shit. I went to Turkey for my vacation and they are sold everywhere in the streets ….. I bought these products for myself and my wife and five children. (…) I bought them for our personal clothing’. OK, you think: a bulging suitcase with 15 fake hoodies and a raincoat? I could have a few more like that. Yet the man eventually wins, according to a recently published ruling by the District Court of The Hague.
Use in the course of trade
The court first reiterated that trademark infringement only occurs when someone uses another person’s trademark in the course of trade. According to case law, this is the case if the use of the trademark takes place in the course of commercial activity with a commercial purpose. Private use is not included.
Private use
And that is exactly what the man in question invoked: purely private use. Those sweaters are meant for myself and my family. You see, they also have consecutive sizes, S for my youngest son, M for my daughter, L for myself, XL for my wife and XXL for my 19-year-old son. I brought 3 sweaters for everyone as souvenirs, he said.
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Ebay
Off-White did not find it all credible, stating that if these had been original Off-White clothing, the market value would have been approximately $11,700. On platforms like Instagram and Facebook, on the contrary, you see batches of this amount of garments being resold.
No trading intent
Yet the judge ultimately sides with the man. From the presence of 22 pieces of clothing in personal luggage, you cannot simply draw the conclusion that there is an intention to trade, the judge said. This is especially true since it involves sweaters in different sizes; that fits with the man’s statement that it is intended for his family. The judge also allows for the fact that the man has argued, without dispute, that he has no accounts at all on platforms such as Facebook or Instagram. A big setback for Off-White, which also has to pay over €8,000 in legal costs.
Fake Glasses
Well, tricky this. Of course, it could all be true what the man argues here, although I’m not familiar with the concept of “three souvenir sweaters per family member” as a vacation gift. But where should we draw the line? If I get fished out of customs later with 75 fake Ray-Bans in my suitcase, will I get away with it if I tell the officer – well-substantiated – that I want to give the guests on my upcoming birthday all one of these fake glasses as a gift? I wonder if this case will be followed up.
Bas Kist
Image Virgil Abloh by Myleskalus (CC BY-SA 4.0) op Wikimedia Commons
