T-shirt design protected as an unregistered Community design

Bestseller A/S vs. Coop Danmark A/S and Natex of Scandinavia A/S, the Supreme Court.

In 2003, the clothing company Bestseller introduced two t-shirts with printed designs on the front. In 2004 the supermarket chain Coop advertised two t-shirts with identical designs. Coop bought the t-shirts from the company Natex, which had bought the t-shirts in India. Coop sold 1165 of the 2044 t-shirts they had bought from Natex and returned the remaining t-shirts to Natex following the objection of Bestseller to their continued sale. Natex exported the remaining t-shirts to Latvia.

Bestseller requested an injunction claiming copyright and unregistered design infringement and damages. Coop and Natex accepted the claim for injunction but disputed that the design was made by Bestseller, that the t-shirts enjoy protection by copyright and unregistered design, and they disputed the claim for damages.

The Supreme Court agreed with the Maritime and Commercial Court that the
t-shirts were not protected by copyright but enjoyed protection as unregistered Community design. As opposite to the Maritime and Commercial Court, the Court found that Coop and Natex should not have known about Bestseller’s designs when importing the t-shirts to Denmark. Coop’s returning of the remaining  t-shirts to Natex did not constitute infringement and Natex’ subsequent export of the remaining t-shirts did constitute an intentional infringement.

As the court found that Coop had been in good faith, Coop was not ordered to pay damages and compensation. Natex was ordered to pay compensation to Bestseller for the export of the remaining t-shirts to Latvia with DKK 10,000 (approx. EUR 1,300) compared to the decision before the Maritime and Com¬mercial Court where Coop and Natex were ordered to pay in total DKK 100,000 (approx EUR 13,000) to Bestseller.

Illustration: As Scandinavian IP Law Review 2006, page 13