Picture of bike in advert does not violate bike manufacturer's trademark rights

Denmark

In Body Bike International A/S v Dansk Supermarked A/S (Case V-120-10, June 12 2012), the Maritime and Commercial Court has found that there had been no trademark infringement in a case relating to an advertisement for exercise clothing.

Body Bike manufactures exercise bikes primarily for use in gym centres and is the owner of trademarks containing the designation ‘body bike’. The defendant, Dansk Supermarked, owns a chain of retail stores.

The dispute centred around two advertisements distributed door-to-door by Dansk Supermarked in relation to an offer for clothes for spinning and exercise, which had contained a picture of one of Body Bike's exercise bikes.

Body Bike sued Dansk Supermarked for violation of its trademark rights in BODY BIKE (which was shown on the bike depicted in the advertisement) and for violation of copyright, claiming that its bikes were protected as industrial art. Body Bike also claimed that its bike in itself was an unregistered trademark.

In its decision, the court found for Dansk Supermarked, stating that no proof had been submitted to prove that the bike should be a work of art and therefore protected as copyright. The court also found no reason to presume that the bike in itself should be protected as a trademark.

In relation to the registered trademarks owned by Body Bike, the court found that the picture of the bike in the advertisement did not violate Body Bike's trademark rights. In one of the advertisements, the trademark was mostly hidden by a model's foot. In another advertisement, the trademark was visible, but rather difficult to see unless you knew it was there beforehand. The court added that the stores promoted in the second advertisement did not sell exercise bikes and that the bikes had merely been used as a requisite in the picture to market exercise clothes, and consequently not goods that were similar to, or looked like, those goods for which the trademarks are registered.

Body Bike was ordered to pay Dkr25,000 as costs.

Mads Marstrand-Jørgensen, Norsker & Co, Copenhagen

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