Bilka convicted of selling counterfeit Polo shirts
On January 10 2014 the Danish Maritime and Commercial Court gave its verdict in a case between The Polo/Lauren Company L.P. (hereafter Ralph Lauren) and Dansk Supermarked A/S (hereafter Dansk Supermarked).
In the case Bilka – a chain of shops owned by Dansk Supermarked – imported a batch of shirts from a Polish supplier called Zeprotex. The batch consisted of 2.449 shirts from Ralph Lauren – both polo t-shirts and regular shirts. Bilka began selling the shirts for 299 DKK each, which Ralph Lauren, the owner of all trademark rights regarding Ralph Lauren and the Ralph Lauren company, quickly reacted to by filing for an injunction, as they were convinced that the goods were counterfeit.
The injunction was granted and in the following trial at the Danish Maritime and Commercial Court the plaintiff, Ralph Lauren, stated that Dansk Supermarked was to be prohibited from importing, producing, selling, advertising and in any other way disposing of the disputed shirts. In addition, Dansk Supermarked was ask to pay 500.000 DKK for the infringement of Ralph Lauren’s rights. Furthermore, Ralph Lauren demanded that Dansk Supermarked should be obligated to publish the verdict – on both its own home page and as a press release to two Danish newspapers.
Dansk Supermarked never disputed that the shirts were counterfeit, but they claimed that the infringement of Ralph Lauren’s rights happened in good faith, as they did not know about the illegality of the goods. Bilka’s product manager stated to the court, that he himself had visited the supplier in Poland to inspect the shirts, and that he had found no reason to believe the shirts were not original, as the shirts seemed of good quality.
He did, however, admit that there had been no further inspection of the delivered goods, as Bilka’s automatized storage system did not make this possible. When the delivered shirts were finally inspected neither Bilka nor the product manager had any doubt that the shirts were counterfeit. It became clear that the inspected shirts in Poland were not the same quality as the ones received, and that Zeprotex, according to Bilka, had deceived them. Therefore Bilka had filed a complaint against Zeprotex with the police in Poland. On those grounds, Dansk Supermarked claimed that they should not pay damages to Ralph Lauren.
The Danish Maritime and Commercial Court determined that Dansk Supermarked, as a professional buyer, was obligated to perform a thorough examination of purchased goods – especially when dealing with a new supplier. The fact that Bilka had explained how their storage system did not leave much room for such examination did not sway the court, and it was concluded by the Court that Bilka and Dansk Supermarked had acted negligent by not exercising the proper control.
Ralph Lauren was awarded 200.000 DKK – an amount that contained both damages and discretionary remuneration. The court stated, that Ralph Lauren had been unable to document any losses, and therefore the calculation of the amount was determined by the number of sold shirts, the price thereof, a discretionary remuneration and, lastly, Dansk Supermarked’s profit from the sale of 1.617 shirts.
The court did not find any grounds for further compensation, nor did it find it necessary for Dansk Supermarked to publish the verdict. Dansk Supermarked was further sentenced to pay cost of 25.000 DKK.
The case sets a standard for professional purchasers, as they have a responsibility to make sure all goods are legitimate. In the present case sending an employee to Poland to inspect samples of the goods were not enough, as Bilka failed to control the delivered goods. Even though Bilka seemed to be in good faith, their negligence made them responsible for selling the counterfeit shirts.