Wednesday, 14 July 2010

If infringement can recur, an injunction is not just theoretical

In "Merchants should know the origin of the products they sell", Jorge Otamendi (G Breuer, Buenos Aires) writes for World Trademark Review on Argentina's recent Court of Appeals ruling earlier this year in The Polo/Lauren Company LP v Bustos (Case 608/05, 18 February 2010). In brief, Polo/Lauren seized from Bustos 165 counterfeit items which bore its POLO and RALPH LAUREN marks, then sued Bustos for trade mark infringement, seeking a permanent injunction and damages.

Bustos maintained that the injunction was of academic interest only, since he had ceased to use the marks. The Court of Appeals rejected this argument, since the fact he had stopped using them didn't mean that there was no chance of him doing so again in the future. Bustos also argued that it was actually he who was the victim: he had acted in good faith and had himself been defrauded by the goods' supplier, on which basis he should not have to pay damages. The Court of Appeals was not impressed, saying:
“it was not credible that the defendant had been the victim of deceit since, in certain activities and in certain circumstances, merchants know, or ought to know, the origin of the products and the legitimacy of the marks that they use.”
You can read this note in full here.

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