Woensdag 31 oktober kreeg ik een mailtje van Marktplaats dat een van mijn advertenties was verwijderd omdat daarin inbreuk zou worden gemaakt op het intellectuele eigendomsrecht van een Zwitsers horlogemerk. Op zich natuurlijk prima dat Marktplaats actie onderneemt in zo’n geval, maar ik was toch wel verbaasd en lichtelijk verontwaardigd, omdat ik - voor zover ik weet althans - geen counterfeits te koop aanbied. In het mailtje van Marktplaats stond ook een e-mailadres in Zwitserland waartoe ik me met vragen en bezwaren kon wenden. Zo gezegd, zo gedaan. Er ontspon zich de volgende correspondentie. Ik plaats de tekst zoals hij in mijn mailbox staat, dus graag van onderen beginnen met lezen. Als iemand die moeite tenminste wil nemen. De prangende vraag dringt zich nu wel op of Poljot al of niet rechtmatig het Blue Angels design en de naam Navitimer gebruikt.
Dear Mr V.,
The trademark “Navitimer” is the property of the Swiss brand BREITLING and make reference of the famous model “Navitimer” from BREITLING. Therefore, only BREITLING can use it.
It is misleading and impermissible to use a trademark, like BREITLING or Navitimer, when there is no legitimate connection between the good sold and the use of the name.
Many thanks for your comprehension and collaboration.
Federation of the Swiss Watch Industry
Rue d’Argent 6
Fax: + 41 32 328 08 80
Dear Florian Barth,
I agree with your reasoning, in fact I support your efforts to keep internet trade clean. I would never knowingly resort to offering counterfeit watches for sale.
However, I was told that the Russian manufacturor Poljot rightfully acquired the Navitimer design and mark. If this is true, the watch in question is not a counterfeit. It is hardly probable that a known brand like Poljot, albeit not Swiss, would produce and sell fake watches. Could you please look more specifically into this case and let me know if Poljot is or is not entitled to use this design and the name Navitimer. In the meantime I shall continue advertising this watch, but without using the name Navitimer. I hope you will agree. If not, I shall remove the advertisement and seek legal advice.
The Swiss Watch Industry Federation (FH) is the Swiss watch industry’s main organisation, with membership of over 500 companies – representing 90% of Swiss watch producers. The purpose of the FH is to contribute to the defence and development of the Swiss watch industry in Switzerland and abroad, as well as protect the interests of its members. On the basis of general and ad hoc mandates, the Federation has the authority to take action to defend the rights of its members.
Intellectual property laws - essentially trademarks, design and patent laws - give owners the exclusive right to use their creations, inventions or a combination thereof. The protection granted by those is justified by the efforts and competences implemented. Therefore, use of intellectual property (IP) without consent of the right holder is illegal.
Therefore you are not allowed to manufacture, use or sell watches protected by Intellectual property rights !
Selling counterfeits is agreeing with know-how’s pirating
Watchmakers have perfected a know-how requiring thousand hours’s work in order to create unique timepieces with harmonious shapes and faultless quality. IP is protected for two main reasons : acknowledgment and protection of creativity must be granted; and investment ans risks taken must be rewarded.
Selling counterfeits is supporting and financing organised crime
Counterfeiting is a criminal activity; selling counterfeited items contributes to finance organised crime and all kinds of illegal business. You do not tolerate thefts, drugs trafficking or tobacco smuggling? Counterfeits are often produced using similar infrastructure and sold through the same channels and by the same offenders. Links between counterfeiting activities and criminal networks have been established in many cases.
Selling counterfeits is accepting underground and children’s labour
Those exploited persons work in very hard conditions, receive a derisory salary and do not get any welfare, legal or medical protection.
Selling counterfeits is endangering consumers’ health and safety
Today, there is no trade segment free of pirated goods : medicines, planes and cars’ spare parts, medical supplies and equipments (such as pace makers), glasses, CDs, drinks and food products, cosmetics and perfumes, textiles and watches, may all be counterfeited. When they are, this means that no quality and safety tests are performed.
Counterfeited watches are most of the time produced using less solid material, and even sometimes material which may be harmful (allergen, toxic, etc.). Less reliable, a fake watch is never a good choice.
Selling counterfeits is reducing employment and stifling growth
This form of criminality contributes to the reduction of employment which is estimated to more than 200,000 jobs worldwide per year, of which 100,000 in Europe alone.
At State level, this represents revenue losses, thus public money which cannot be invested for citizen’s welfare.
Selling counterfeits is synonym of being liable to criminal sanctions
the mere possession of counterfeits is considered an offence in many countries
penalties could be claimed by legitimate IP rights’ owners
customs are allowed as well to seize and destroy illegal items and to pronounce important fines
Frequently Asked Questions (FAQ)
Q: Why did Marktplaats allow me to post my auction if it is against the law?
A: Despite major efforts, Marktplaats has told us that they cannot conduct a comprehensive pre-screen of all their auctions, what’s more the seller is totally liable for the content of the advertisement. Therefore, certain impermissible items are allowed to be listed thereby causing both time and money to be wasted by the buyer, the seller and BREITLING.
Q: Why was my auction ended?
A: Your auction was ended because we believe the item being sold was a counterfeit the BREITLING item OR included an infringement of the BREITLING trademark or others trademarks owned by BREITLING such as: Navitimer, Chronomat, …
Given the nature of the Internet, decisions regarding the authenticity of an item are based upon the photograph and the description of the goods, as well as other less tangible aspects of the auction. Because we cannot physically see a product posted over the Internet, the information at our disposal as to the counterfeit nature of the item is limited.
Q: Why do BREITLING care if I sell a single piece of unauthorized BREITLING merchandise?
A: BREITLINGhas expended considerable resources to develop and maintain a reputation for providing the highest quality products and services to its customers. Through the auction of counterfeit merchandise, people attempt to trade off of BREITLING’s well-earned reputation. These auctions not only cause monetary damage, but also damage BREITLING reputation, as many of the purchasers of inferior counterfeit products will attribute the poor quality merchandise to BREITLING. Having spent many years cultivating its strong reputation, BREITLING must take action to ensure that online auctions of counterfeit goods are ended, even by single-item sellers.
Q: I think that the item I offered is genuine. How can I tell if it is real?
A: Unfortunately, we cannot provide the public with detailed information on how to identify genuine watches, as this information could also be used by counterfeiters to improve their bogus products. However, we can tell you that genuine products are made of superior materials and are crafted with the best in workmanship. The only way you can be certain that you are purchasing a genuine fashion product is to purchase from a watch specially selected high-quality retailer authorized to sell these items. If we ended your auction, we felt comfortable with our assessment that the item you were selling was not genuine. We understand that in some cases you were not aware that you were selling counterfeit merchandise. We also understand that you may have obtained this item from someone else who misled you.
Q: Can I list an item if I expressly say that it is NOT GENUINE?
A: NO! A disclaimer regarding the authenticity of goods, such as “faux”, “fake”, “knockoff”, “BREITLING-like”, “SWISS BRAND style”, “BREITLING?”, “cannot guarantee authenticity” and similar disclaimers, does not satisfy the legislation prohibiting the sale of counterfeit/infringing merchandise.
Q: Why can’t I use the word “BREITLING” in my auction heading even though I am not selling a BREITLING item?
A: It is misleading and impermissible to use the word “SWISS BRAND” when there is no legitimate connection between the goods sold and the use of the name.
Q: Why can’t I describe my item as “BREITLING”, “SWISS BRAND-LIKE” or a similar phrase?
A: Due to BREITLING’s fame, a person who sees the “BREITLING” name is likely to believe that the goods are in some manner connected with or endorsed by BREITLING, to BREITLING detriment and contrary to both state and federal law.
Q: Why can’t I sell an item that I originally purchased on Marktplaats?
A: BREITLING are working diligently to ensure that all counterfeit/infringing merchandise is removed from auction on Marktplaats. However, some items do slip through the cracks and auctions carrying counterfeit/infringing items are completed. This does not affect the fact that the sale of counterfeit/infringing goods is against the law.
Q: Why didn’t BREITLING contact me directly before reporting my auction to Marktplaats?
A: Marktplaats is responsible for the items posted on its auction site. Given the number of items posted on Marktplaats, it would take a very large commitment of time and money for the trademark owner to contact each seller individually. Unfortunately, it is not possible for us to do so.
Q: I saw an auction where the seller said I could go to a retailer and verity the authenticity of the item offered for sale. Can I bring an item to a retailer for verification of authenticity?
A: No. Unfortunately, retailers are not able to provide authentication of auction items. The only proof of purchase that we recognize is an original sales receipt. BREITLING had not permitted sellers to base the authenticity claims on verification done by its retailers.
Last considerations, BREITLING works diligently to protect its reputation for providing the highest quality products, and to protect its customers from merchandise that is inferior, and confusingly similar to genuine products.
BREITLING must therefore vigorously protect against the on-line distribution of counterfeit/infringing goods.
Federation of the Swiss Watch Industry
Rue d’Argent 6
Fax: + 41 32 328 08 80
De : Adriaan V.l [mailto:firstname.lastname@example.org]
Envoyé : mercredi, 31. octobre 2007 17:25
À : Cellule Internet FH
Cc : email@example.com
Objet : Concerning Intellectual Property and Brand Name
You requested www.marktplaats.nl, a Dutch auction site, to remove one of my advertisements. The item in question is a Poljot Blue Angels ‘Navitimer’ chronographe watch. As far as I know, there is no infringement in this case, because to my knowledge Poljot rightfully acquired the design and name in the past. If you don’t agree, please convince me and let me know what terms I may or may not use in this advertisement. I never meant to infringe on your rights, but I’m unsure about this situation, because this particular Poljot model is in fact called Blue Angels Navitimer (cf. http://cgi.ebay.nl/M5-BLANG-WATCH-POLJOT-FLIEGER-CHRONOGRAPH-WEISS_W0QQitemZ330178046308QQihZ014QQcategoryZ12262QQcmdZViewItem ). I assure you that I don’t offer replicas for sale, but only genuine watches.
The text used was this:
Poljot Blue Angels ‘Navitimer’ chronograaf zwart
Na het succes van de Ruslan-serie heeft Poljot nog een chronograafmodel uitgebracht. De naam Blue Angels verwijst naar het beroemde pilotenteam. Op de gedetailleerd uitgevoerde wijzerplaat is een vliegtuig afgebeeld. Poljot kaliber 3133 uurwerk, 23-steens, handopwinder, 42 gangreserve, stopfunctie met 30 minuten teller, edelstaal, mineraalglas, diameter 39 mm, dikte 16 mm, verschroefde edelstalen bodem, volgens opgave fabrikant waterdicht tot 3 atm.
Met zwartleren Poljot-band.
Dit horloge is absoluut nieuw en ongedragen.
In the meantime I shall not use the term Navitimer, because I assume that that’s the name that you objected to. Nevertheless I’m looking forward to your reply.
Adriaan Vr. - Netherlands