Distribution of lamps not a violation of good marketing practice

Herstal Lampe Design A/S vs. Hagro by Hans Grove and Silvan-kæden A/S, the Supreme Court.

Herstal designs, produces and sells lamps, and in 2000 and 2001 Silvan distributed a series of 5 Herstal lamps.

In 2002 the co-operation was terminated. Silvan turned to Hagro and requested Hagro to supply 5 “similar lamps” to fill in the gap in their offering.

The Herstal lamps were launched on the Danish market between 1994 and 1997 and since their launch more than 2,7 million lamps had been sold. Herstal annual marketing costs for the relevant lamps amounted to MDKK 3,5 (approx EUR 467,000).

Herstal commenced litigation against Hagro and Silvan, claiming that the Hagro lamps constituted illegal product imitations and that the distribution of said lamps constituted a violation of good marketing practice.

The Court found in favor of Hagro and Silvan, stating that 3 of the Herstal lamps did not have sufficient distinctiveness to enjoy protection against product imitation under the Danish Marketing Act. The remaining 2 lamps had sufficient distinctiveness, but the corresponding Hagro lamps were not considered sufficiently close to be considered illegal product imitations.