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HEMA loses to Lacoste

September 2020. The Dutch store-chain HEMA has lost its battle against clothing brand Lacoste. The group is not allowed to sell shirts depicting crocodiles. The company had two kinds of shirts in the shop: a blue shirt with one crocodile on the front and a grey shirt with lots of crocodiles.

2018: Infringement

In 2018, the district court in The Hague ruled that the print of the shirt with lots of crocodiles would simply be seen as decoration by the public. According to the court, Lacoste could not do anything against this with its trademark rights. The single crocodile on the blue shirt might be seen as use of a trademark, but because that shirt was always sold in one package with the grey shirt, the consumer would not confuse this with the Lacoste brand either, the court said in 2018.

Complete turnaround

The situation in 2020 with the Court of Appeal could not be more different. On the basis of market surveys submitted by Lacoste, the Court of Appeal now determines that a large part of the public will not see the crocodiles as decoration after all, but as a trademark. These market surveys show that more than 30% of the Dutch respondents answered the question ‘Which company do you think this product comes from?’ with: Lacoste. That also applies to the shirt with lots of crocodiles.

Crocodile war: danger of confusion

Confusion

Despite the fact that the design of the Hema crocodiles differs from that of the Lacoste crocodile, according to the Court, there is still a risk of confusion among consumers.

Important victory

The fact that Hema initially got away with that blue shirt with one crocodile already came as a surprise to us. But perhaps it could have gone either way with the shirt containing the large amount of crocodiles. In any case, it’s a very important victory for Lacoste and a support in the fight against the use of crocodiles on clothing.

Bas Kist