Netherlands, Unilever Vs. Artic

Following a case between Unilever and Artic over Unilever’s registration of a Mexican taco-shaped ice-cream after Artic had also put it on the market, the Benelux Court of Justice has recently given answers to the questions of the Supreme Court of the Netherlands on the issue. The question was whether the application for the registration of a trademark by Unilever could be considered to be in bad faith, given that Unilever was aware of the existence of the competing ice-cream by Artic. The Benelux Court of Justice stated on June 25th, 2004, that “Filing an application for registration of a trade mark should not necessarily be considered as being in bad faith within the meaning of Section 4 (6) of the Benelux Trade Marks Act (BMW) if the applicant is aware that there is question of an earlier use, such as described further in this clause, by a third party, but this third party in relation to the applicant is not the first user of the trade mark because the applicant himself was using the trade mark even earlier (the previous prior user).”