Plein is a fashion designer and also the brand owner of various brands that he applies to his clothing. RSR operates a clothing store in Rotterdam, and allegedly infringes Plein’s trademark rights by selling counterfeit clothing. However, RSR claims that there would be exhaustion. The court considers that it is up to RSR to provide proof of this, as there is no risk of partitioning national markets. On the basis of the evidence provided by RSR, the court concludes that it has been established that 30 of the 35 seized products were put on the market in the EEA with permission. The court decides that these 5 items may indeed no longer be traded, and that they must be transferred for destruction. The claim for remittance of profits is rejected because the trademark infringement does not appear to have taken place in bad faith. Both parties must bear their own legal costs now that both have been partially unsuccessful. Plein must compensate RSR for the loss of profit, but less than claimed. Since the claim for reputational damage by RSR has not been further substantiated, this claim is rejected.
Source: ie-forum.nl
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