Chanel and Coty have successfully acted against several Dutch
companies trading under the name Bargello Perfumes. Bargello
offered smell-a-like perfumes claiming the same or even a better
quality than the perfumes of the well-known brands and for that
purpose used comparative lists with Bargello numbers directly
linked to the trade marks of Chanel and Coty.
At first the comparative lists were used publicly on the counter
in each of Bargello's stores. Later – after a complaint
by Chanel and Coty – Bargello changed its strategy and only
let its employees use the comparative list behind the counter and
not visible to customers. Bargello also used slogans like
"400 well-known perfumes", "you will
not notice the difference" and "over 400
well-known perfumes for only € 16,99!".
In line with the CJEU decision in L'Oreal/Bellure:
"where a third party attempts, through the use of a sign
similar to a mark with a reputation, to ride on the coat-tails of
that mark in order to benefit from its power of attraction, its
reputation and its prestige, and to exploit, without paying any
financial compensation and without being required to make efforts
of its own in that regard, the marketing effort expended by the
proprietor of that mark in order to create and maintain the image
of that mark, the advantage resulting from such use must be
considered to be an advantage that has been unfairly taken of the
distinctive character or the repute of that mark" the
District Court of The Hague ruled that Bargello infringed the trade
mark rights of Chanel and Coty by using the comparative lists for
smell-a-like perfumes in its Dutch stores.
The visible use of the comparative lists was considered to be a
trade mark infringement as was the use of these lists by
Bargello's employees behind the counters. The District Court
ruled that, even in that case, the trade marks played the same key
role in the sales and communication process of Bargello to its
customers as if the customers could see the lists themselves.
Therefore, according to the District Court, such use cannot be
considered as merely internal but as taking unfair advantage of the
repute of the trade marks.
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