GOOD NEWS FOR DEFENDANTS - YOU CAN STILL ARGUE YOUR DEFENCE

The LexisNexis All England Direct subscription-only service reported yesterday on Beiersdorf AG and another v Ramlort and another, an application for summary judgment heard before the Chancery Division’s Vice-Chancellor, Sir Andrew Morritt. Beiersdorf, who made and sold NIVEA products, sued for trade mark infringement and applied for summary judgment on the ground that the defendants had no real prospect of successfully defending the claim. The defendants resisted the application, saying that Beiersdor’s trade mark rights had been exhausted since the goods they sold had been first marketed in the European Economic Area with that company’s consent. Beiersdorf denied they had consented to the marketing of those goods and claimed that the documents the defendants relied on as proving Beiersdorf’s consent were forgeries.

The court rejected Beiersdorf’s application and ordered that their claim should go to a full trial. When an application for summary judgment is made, the court could not be expected to conduct a mini trial and the defendants were entitled to contest, by means of cross-examination, the question whether the documents of authorisation were forged.
The IPKat agrees. The defendants’ case may indeed be unmeritorious and may ultimately fail. Even so, the likelihood that Beiersdorf would ultimately succeed should not be a ground upon which a defendant is deprived of the right of putting its case.

The Nivea teddy here
Nivea products here and here that Beiersdorf doesn’t control, plus another Nivea product here that anyone can control.
Play an oily Nivea game here