Winning and losing – The battle of the Jensens

In Insights, Uncategorized

4 December, 2014

A decision from the Danish Supreme Court arose the public’s anger in September 2014 even though the decision – in my opinion – is correct.

The Danish restaurant chain Jensen’s Bøfhus claimed that Sæby Fiskehal ApS’ restaurant by the name “Jensens Fiskerestaurant” was infringing Jensen’s Bøfhus’ trademark rights. The Maritime and Commercial Court found that Sæby Fiskehal ApS owned by Jacob Jensen was entitled to use the name “Jensens Fiskerestaurant” since “Jensen” is a common Danish surname and therefore was devoid of distinctiveness.

A united Supreme Court overruled the Maritime and Commercial Court and found that although “Jensen” is a common Danish surname it has the acquired distinctiveness through Jensen’s Bøfhus’ use since 1990 where the first restaurant was marketed. Furthermore, as Sæby Fiskehal ApS is a limited liability company and Jacob Jensen therefore was not personally liable for the company, the exception that one can use his own name when acting accordingly to fair trading practices did not apply. Exceptions to trademark rights should be interpreted restrictively and therefore the exception could not be extended to the owner of the limited liability company.

As a result Sæby Fiskehal ApS was not entitled to use the name “Jensens Fiskerestaurant” for catering trade.

Jensen’s Bøfhus is a very well-known brand for restaurants and has been for more than 20 years. Of course it should be possible to market your own restaurant under your own name according to fair trading practices. But in this case, Jacob Jensen was not hindered in having a restaurant his own name, but Sæby Fiskehal ApS was hindered to use Jensens. Further to this, Sæby Fiskehal ApS recently made a logo which consisted of similar shapes and colours as Jensen’s Bøfhus’s logo and therefore did not use the name Jensens according to fair trading practices. Thus I believe that the Supreme Court made the correct decision.

The decision caused an intensive media debate and in only a few days, more than 100.000 people united to boycott Jensen’s Bøfhus. Those who boycotted Jensen’s Bøfhus were angry that an ordinary man was prevented from using his own name – a name that more than 250.000 people in Denmark are carrying.  Jensen’s Bøfhus had simply gone too far in enforcing their rights. The fact that the decision was correct drowned in the storm.

The bad publicity which arose from the decision was difficult to foresee. In the times of social media it is important for companies to be aware of the fact that news travels fast. Retrospectively the storm faded out fast as well, but that does not change the importance of having a strategy on how to enforce your rights. Because even though you win in court, you might lose in public.

However, it is very important for the companies to react on infringements as otherwise the risk of becoming passive is present and as a consequence the rights will be limited.

It does not seem like Jensen’s Bøfhus has suffered any great damages, since the publicity storm calmed down. But hopefully they will have a strategy on how to enforce their rights in the future, which is not only a question of money and being right but also a question of public opinion.

Johanne Mørk-Hansen, Associate

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