The accidental incidental use of a brand by the former franchisee
The judgment of the District Court of Gelderland of 9 March 2016, ECLI:NL:RBGEL:2016:1691 (ERA Nederland/Houvast Makelaardij) concerns a situation in which a franchisee had terminated the franchise agreement with the franchisor. The franchisor confirmed the termination. The
franchisee was advised to remove all references to ERA from its business operations. The former franchisee has argued that he has actively removed the brands from ERA and that he has made further efforts to do so. Nevertheless, unintentional incidental brands of ERA have remained in use, caused by busyness and carelessness, according to the former franchisee. In some places, for example, ERA expressions have remained unintentionally visible on photos on the website of the former franchisee and on that of Funda and on for sale signs and posters of properties that the former franchisee manages.
According to the preliminary relief judge, the aforementioned use constitutes trademark infringement pursuant to Article 2.20 paragraph 1 sub a BCIP. The lack of malicious intent or intent on the part of the former franchisee does not detract from this infringement. Intent is not required for presuming an infringement. The fact that the unauthorized use of the trademark did not take place on a large scale does not detract from the infringement either. Pursuant to Article 2.21 paragraph 2 sub b BCIP, the damage is determined as a fixed amount on the basis of the license fee that would have been due under the terminated franchise agreement if the former franchisee had requested and received permission to use the ERA brands.
It follows from this judgment that it is important to realize that, in principle, the inadvertent and incidental continued use of trademark rights of the former franchisor can also be sanctioned.
mr. AW Dolphijn – Franchise lawyer
Ludwig & Van Dam Franchise attorneys, franchise legal advice.
Do you want to respond? Go to dolphijn@ludwigvandam.nl
![](https://ludwigvandam.megaconcept.nl/wp-content/uploads/2020/12/232court-min-400x222.jpg)
Other messages
Failing to cooperate in checking hygiene requirements of the franchisee
The court in Amsterdam recently ruled in a case where a franchisee did not meet all hygiene requirements.
‘If the employee starts franchising…’. The employer’s duty of care as a franchisor
It will not be easy to assume that a 'normal' employee has given up his employment contract. However, what...
Sale of rental rights supermarket location not allowed
Recently, the Court of Appeal in The Hague has ruled that supermarket organizations have to switch locations for the penny.
Market and location research: more important than you think
Time and time again, the law practice offers a variety of special situations, which with some regularity contribute to the situation at hand.
Market and location research: more important than you think
Market and location research: more important than you think
Jurisdiction of the subdistrict court judge in cases of miscarriage (II)
As indicated earlier on this website, different judges judge in different ways whether they are competent to take cognizance of a dispute in which both prognosis problems