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Supreme Court of Denmark

Trade mark infringement 

Case no. 128/2010
Judgment 24 August 2012
Elite Licensing Company SA
vs.
Elite NYC ApS c/o House of Scandinavian Care ApS
and
House of Scandinavian Care ApS

Trade mark rights infringed by trade mark registered in Denmark

Elite Licensing Company SA is a French company in the Elite Group, which is mainly known for running a model agency. Elite Licensing manages licensing agreements for the Elite Group, in which connection it owns a number of trade marks including, among others, the word "Elite".

Elite NYC ApS and House of Scandinavian Care ApS are Danish companies. Elite NYC owns the trade mark "ELITE NEW YORK", which was registered with the Danish Patent and Trademark Office in 2004. A similar application for EC registration of this figurative mark was rejected by OHIM, the office in charge of EC trade marks, in 2007 following an objection from Elite Licensing. OHIM found that it was likely that products from Elite NYC, marketed under the trade mark "ELITE NEW YORK" would be confused with products under Elite Licensing's trade marks.

Mainly based on OHIM's decision, Elite Licensing had stated that Elite NYC's use of "ELITE NEW YORK" infringes Elite Licensing's trade mark rights.

The Supreme Court held that Elite Licensing was the owner of a number of trade marks that enjoyed priority over "ELITE NEW YORK". Furthermore, the Supreme Court held that Elite Licensing was using the trade marks to the required extent. The Supreme Court then stated that the decision from OHIM was not binding on the Supreme Court in its consideration of the issue of the likelihood of confusion. However, the Supreme Court held that there was a likelihood of confusion between "ELITE NEW YORK" and Elite Licensing's trade marks. Elite Licensing did generally not have the right to prohibit the use of the word "elite" as part of a mark, but the Supreme Court issued an injunction against the use of "ELITE NEW YORK" within a number of product categories. The registration of "ELITE NEW YORK" in the Danish trade mark register was, thus, void, and the trade mark should be struck off. The Supreme Court fixed an amount of compensation on a discretionary basis of DKK 250,000 for infringement of Elite Licensing's trade mark rights.

The Supreme Court, thus, reached a different conclusion than the Maritime and Commercial Court.

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