Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3

Two producers of sports related products used ‘endurance’ as a part of a brand/name for these products e.g., Danish ENDURANCE and ENDURANCE. Temporary injunctions could not be applied as ENDURANCE was not a protected trademark. In addition, the use of ENDURANCE was not believed to be misleading in regard to the Danish Marketing Act, § 20.

One producer (A) of sports products named them ENDURANCE, which was also printed on the products. Another producer/seller (B) sold some of their products (particularly sport socks) under the label DANISH INDURANCE. The two producers were not targeting the exact same buyers geographically but could potentially become competitors.

The main legal issue in question was whether INDURANCE, as used by company B and printed on the sports products, could be regarded as a protected trademark. Also, it was claimed that the other company (A) traded on someone's good will.

Even though A claimed that they had gained the qualification of trademark ENDURANCE through their use, the extent of sales, the broad marketing, and the fact that the word (and the way it was written) was to be regarded as a figure/logo and not just a word, the Court rejected the claim by stating that the word brand does not possess a distinct character and thus is not protected as a trademark. Also, the Court stated that there was no violation of the Danish Marketing Act.

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The claim that ENDURANCE was a protected trademark was dismissed as well as the claim of misleading advertising when using the word. As the case is very specific, no legal precedent can be derived.