We have again received a warning from Zapf Creation AG dated June 17, 201 by the law firm Zierhut IP. The subject here is once again the use of the “BABY born” label for doll clothing.
The warning before us concerns the offer of two doll’s shoes, which were advertised by the addressee of the warning with the designation “fits baby born”. In addition to submitting a declaration of cease and desist with penalties, the warning costs € 2,518.10 (pure legal fees). The amount in dispute is given as a value of € 200,000.00. Furthermore, information claims for the possible assertion of further compensation for license damages are asserted.
How to deal with the warning:
First of all, it is questionable whether there is any trademark infringement at all in the present constellation. We have already reported in numerous other articles, in particular with regard to many other warnings, that a trademark infringement does not always already exist when a possibly third-party trademark is used for a product that is not an original. There must always be a so-called trademark use, which in simplified terms means that the specific use must be suitable to give the public the impression that it is an original product from the house of the rights holder. This is often an excellent point to argue about. This also creates bargaining ground that can be introduced into the negotiations in the event that an out-of-court settlement is reached.
In any case, it is important not to miss any deadlines. Should the opposing party decide to take legal action with a value in dispute of € 200,000.00, in the absolute worst case five-digit legal and court costs would be due if the process were lost. Our premise is always to find an out-of-court solution for you. If this is not possible or not necessary, we will of course be happy to conduct legal proceedings with you. In this respect, however, we can inform you that 95% of the issues can be settled out of court with warnings of this kind.
If you have also received such a warning, we would be happy to hear from you. You are welcome to send us the warning first by e-mail to [email protected] and / or call us directly at 02307/17062. Mr Jan B. Heidicker, attorney-at-law, who primarily deals with these cases in our law firm, is your specialist in trademark law.
–
