A stylised crocodile on children's clothing. Infringement of the Lacoste trademark or not? In the first instance, HEMA went unpunished; on appeal, Lacoste came out on top. The key question in the case is whether the public at large (you, me, everyone) perceives the image as a trademark. In other words: is it an indication of origin (according to Lacoste)? Or is it just an innocent decoration (according to HEMA)?

It is certainly not the first time that companies are fundamentally opposed to each other on the question of where the boundary of a decoration lies. adidas fought the two stripes on tracksuits from H&M, G-Star attacked C&A on the use of RAW, clothing brand LIEF! (“KIND!”) went after STOUT! (“NAUGHTY!”).

The appealing aspect of such a trademark infringement case is that everyone has an opinion on it. But then who is right? A trademark case revolves around "the average consumer", in fact the average person of the target group. This means that you can examine how people perceive something among a representative sampling of the target group. Including the crocodile on HEMA children's clothing.

HEMA and Lacoste had both commissioned market research. The questions differed, and so did the results (of course). The Court of Appeal of The Hague held first and foremost that the results of a market survey are not decisive in the court's assessment. A market investigation is no more, but also no less, than an aid in that assessment. That is precisely the case. However, that does not alter the fact that a well-designed market research can in practice be a valuable tool to make a claim concrete, for example, that many (or, on the contrary, very few) people spontaneously think of Lacoste when they see the crocodile on the children's clothing. Or that they think it comes from Lacoste. Lacoste's research is more convincing. With various studies, each with slightly different questions, it had made it plausible that the general public really sees a trademark in this.

Everything that comes from HEMA is world news in the Netherlands. The outcome of the proceedings can hardly be missed: at HEMA, you can no longer find children's clothing with crocodiles. The last word has not yet been said about market research in trademark cases. A good investigation can make all the difference.

Maarten Haak