In a long running conflict between H&M and Dutch fashion company G-Star Raw, The Hague Court of Appeal ruled in favour of G-Star.

G-star Raw holds various registrations for the RAW trademarks, inter alia registered for clothing. H&M used the word RAW on several T-shirts and hoodies (a description included in the judgement calls them ‘vests with a hood’). Besides the word RAW, the garments also bear the words BEAT and EXPERIENCE, placed under a picture of a ghetto blaster (which is not explained in the judgement).

Confusion

According to the Court, the word RAW occupies an important place on the garments, particularly because the word is separated from the other words by the ghetto blaster. Because of this prominent use of the term RAW, the judge feels that there is a likelihood of confusion between the prints on the garments and the RAW trademarks of G-Star.

The fact that the word RAW has a meaning does not say that it cannot be a trademark, according to the judge. The Court feels that the term ‘raw’ can refer to the materials which the garments are made of; the garments do not necessarily need to be ‘raw’. Furthermore, G-Star’s intensive use of the trademark RAW makes it even more distinctive than it already was. The fact that the trademark RAW is usually used in combination with the trademarks G-STAR or GS does not detract from RAW’s independent protection.

H&M and other brands

H&M also claimed that the shirts and hoodies are only sold in H&M stores. The consumer should therefore realise that the clothes are not by G-Star. According to the judge, however, H&M stores also regularly sell items from other brands and designers, such as Karl Lagerfeld and Viktor&Rolf. The consumer could therefore assume that the clothing in question is made by G-star.

Incidentally, H&M is also involved in a conflict with Adidas with regard to the use of stripes on H&M sportswear. In summary proceedings in December 2015, the Court in Arnhem ruled that the use of two stripes infringed the three stripe trademarks of Adidas.

Printing garments with ‘catchy’ words, images or stripes can therefore infringe the trademark rights of other parties.