Size does not matter but language does in trademark case

The Supreme Court of Denmark has issued its decision in B-Young A/S v Mind Companies A/S (Case 409/2005, March 6 2007).

Mind Companies A/S is the owner of the trademark SIMPLY in Class 25 of the Nice Classification and uses the trademark in connection with the marketing of ladieswear in larger sizes (sizes 38 to 52). B-Young A/S began marketing ladieswear under the trademark SIMPLY WISH. Mind Companies objected and sued B-Young, claiming that B-Young must cease using the designation SIMPLY WISH for (i) ladieswear in general, or (ii) ladieswear in sizes 46 and above.

The Maritime and Commercial Court found that although in general the designations were not confusingly similar, a sharpened evaluation of the risk of confusion should take place regarding ladieswear in larger sizes. Consequently, the court upheld Mind Companies' claim. B-Young appealed.

The Supreme Court disagreed with the lower court. It found that the trademarks were different visually, in their sound and in their meaning. Further, it stated that the terms in question were ordinary English words, providing only very weak inherent protection. On these grounds, the Supreme Court held that no risk of confusion existed between the trademarks.

Mads Marstrand-Jorgensen, Norsker & Co, Copenhagen