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By Marcus Hoy
A popular woman’s magazine based in India can’t say it with flowers in an advertorial, a Danish court ruled.
Femina’s use of the phrase “Say it with Flowers” in sponsored content published in Danish breached the IP rights of the global florist Interflora, Denmark’s Trade and Maritime Court found. The well-known, long-standing trademark should enjoy strong protection against improper use, the court said.
Femina published the phrase “Sig det med Blomster” as headlines above photo collages featuring floral pattered clothing and an elderflower flavored drink. Such uses are journalistic expressions and thus exempt from infringement under Denmark’s Trademark Act, which allows references to trademarks in journalism and certain other noncommercial contexts, they noted.
But the flower delivery network’s Danish arm, Interflora A/S, countered that the stories were published as so-called advertorial text— implying commercial use that’s barred under the Trademark Act because Femina used the phrase to sell advertising copy and magazines. Its use in such a context amounted to a trademark breach that could potentially damage the brand, Interflora asserted.
The court July 2 agreed that the commercial nature of Femina’s features meant that the journalistic exemption didn’t apply. It ordered Femina to cease using the slogan’s Danish version and to pay 25,000 Danish kroner ($4,000) in damages.
The ruling should serve as a cautionary tale to other style magazines that increasingly publish advertiser-provided content, and shows the need to seek approval from trademark holders before using their mark, attorney Peter Mollerup of the Ellman legal firm told Bloomberg Law July 4.
“The theme of flowers was used to advertise different products associated with flowers,” he said. “If the case had concerned a longer editorial article that did not entail paid content, the decision would probably have been different.”
Femina bills itself as “the first and most read women’s English magazine in the country,” according to its website. The biweekly magazine focuses on fashion, beauty, relationships and health, among other topics. It’s owned by Worldwide Media.
Representatives for Femina and their attorneys declined to comment on the court ruling to Bloomberg Law.
Soren Flemming Larsen, CEO of Interflora Danmark A/S, said the company will continue to spend significant resources to protect its trademark from unauthorized use.
“We see other businesses trying to take advantage of our brand on a daily basis, especially in relation to Google adwords,” he told Bloomberg Law July 4. “We aim to enforce our rights against all such violations. “
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