On 2 November 2016, the Hague Preliminary Relief Judge issued a preliminary injunction against the (locally) well-known Dutch retail chains Blokker and Leen Bakker (hereinafter collectively “Blokker”). These two affiliated retail chains together have more than five hundred stores across Benelux. The proceedings were initiated by the Chinese company Zhejiang Zhengte Co., Ltd (“Zhengte”). According to Zhengte, a party tent sold by Blokker infringes its Community design rights. After failed attempts to amicably settle the dispute, the Preliminary Relief Judge issued its decision.

Blokker first tried to put a quick and easy end to the Court proceedings by arguing that Zhengte has no urgent interest in its claims arguing that the product in dispute would be a seasonal product and the summer is already over. The Preliminary Relief Judge found it quick and easy to dismiss this argument stating that Zhengte clearly has an urgent interest, in view of the (threatened) ongoing infringement by Blokker.

Blokker then disputed the validity of Zhengte’s registered Community design. Pointing at several earlier designs, they claimed that Zhengte’s design is not novel and has no individual character. The Preliminary Relief Judge straightforwardly dismissed the lack of novelty defense as it was clear at first sight that the earlier designs are not identical to Zhengte’s design. The Preliminary Relief Judge did not agree that Zhengte’s design lacked individual character either: considering its various different characteristics, the design produces a different overall impression.

The Preliminary Relief Judge subsequently assessed Zhengte’s infringement claim. Considering that Blokker’s party tent produces the same overall impression, the Preliminary Relief Judge concluded that Blokker has infringed Zhengte’s Community design rights. In view of this, the EU-wide injunction sought by Zhengte was granted. Moreover, Blokker was ordered to recall the infringing party tents and to provide Zhengte details of its suppliers, current stock and sales. The Preliminary Relief Judge also imposed a penalty of EUR 10.000 per day, with a maximum of EUR 200.000.

Comment

Having exhausted the usual arsenal of maneuvers in RCD infringement cases, it is interesting to see that Blokker reportedly would further consider the dispute as an issue between two Chinese suppliers – the supplier of their product and the supplier who now has prevailed. Be that as it may, the retail chain’s sale of the product in the Benelux in itself constitutes an infringing act, which has led to the current preliminary injunction.

Case: Preliminary Relief Judge of the District Court of The Hague, decision of 2 November 2016, C/09/516922 / KG ZA 16-1006 (Zhejiang Zhengte Co., Ltd / Leen Bakker Nederland B.V. and Blokker B.V.) Link (in Dutch)