What was going on in this March 15, 2022 ruling by the Den Bosch Court of Appeal? Milieu Nationale is a wholesaler in the field of cleaning products and has developed a toilet cleaner under the name ‘Prefum’. For this product, Milieu Nationale manufactured labels and had them registered with the tax authorities. Cleanmaster Biolux, also a wholesaler in the same market, resold the product under another trademark, Biofum, with permission from Milieu Nationale. In doing so, Cleanmaster first used labels ordered from Milieu Nationale bearing the name Biofum. Later, Cleanmaster began using other labels for Biofum. In 2018, Cleanmaster complained that the spray heads no longer fit the threads of the bottles supplied. Milieu Nationale does not respond adequately and Cleanmaster decides not to purchase any more products from Milieu Nationale and develops its own toilet cleaner and continues to sell Biofum toilet cleaner with its own labels.
Milieu Nationale claimed damages for unilateral termination of a long-term contract without notice and for infringement of the copyrights on the label. The Court of Appeal of Den Bosch made short shrift of this. Milieu Nationale cannot prove the existence of a continuing performance contract, since there was a regular purchase of products, but no stock was ever kept separate for Cleanmaster. The parties did not agree on any special price arrangements and no ongoing supply obligations.
Further, the Court stated that Cleanmaster’s label was not sufficiently similar to Environment National’s label to be able to find that there was copyright infringement. There is no copyright infringement of safety data sheets (instructions for use) and no evidence that they are copyrighted. Nor is there any slavish imitation by Cleanmaster.
