Last week, on 25 March 2026, the District Court of Amsterdam issued a notable judgment in a case between Goldbergh and Lidl concerning the 'Bombardino', a striking shiny ski jacket. In this judgment, all claims for infringement, both under copyright law and on the grounds of slavish imitation, were dismissed. Nevertheless, Lidl was ordered to pay a penalty of EUR 20,000. How is this possible?
An injunction with a short lead time
Lidl sold a ski jacket called 'Crivit Glamour', which was similar to the Bombardino jacket. On 21 October 2024, Goldbergh sent a cease and desist letter to Lidl demanding, among other things, that it ceases the sale of and advertising for these Crivit jackets. Two days later, on 23 October 2024, Lidl responded, stating that the jacket was not protected by copyright.
That very same day, Goldbergh filed an ex parte application to cease the sale of the Crivit jacket. In ex parte proceedings, a party asks a judge to impose an injunction against infringement of an intellectual property right without the other party first being heard. The judge subsequently granted the application and ordered Lidl to cease the sale and promotion of the Crivit jackets. Lidl was required to comply with this injunction within six hours of service and to pay a penalty payment of EUR 20,000 per day in case of non-compliance, up to a maximum of EUR 200,000.
In the early morning of 24 October 2024, Goldbergh served this injunction on Lidl. This service took place at 9.19 am, meaning that Lidl had to cease the sale of and all advertising for the Crivit jacket by 3.19 pm. Lidl failed to do so. At around 4.00 pm, the Crivit jacket was still visible on Lidl's website on the product page for a pair of ski trousers. Around the same time, advertising leaflets featuring an image of the Crivit jacket were still available in a physical store in Harderwijk. At 6.09 pm, less than three hours after the deadline had expired, Goldbergh confirmed that Lidl had removed all references to the Crivit jacket.
No copyright, but the penalty payment must be paid
In these proceedings, the court ruled that Lidl had not infringed copyright, as the Bombardino jacket was not protected by copyright. The elements of which the Bombardino consisted were not, in themselves, protected by copyright, according to the court, and Goldbergh had not demonstrated that the combination of those elements was protected by copyright. Nor was there any question of slavish imitation, because the jacket isn't distinctive enough to stand out on the market.
The court did, however, rule that Lidl must pay the penalty of EUR 20,000. According to the court, displaying the Crivit jacket on a product page for ski trousers also constituted a disclosure, which was prohibited under the ex parte injunction. According to the court, a large retailer such as Lidl could be expected to have an adequate system in place to comply with a court injunction in a timely manner. The fact that the six-hour deadline was short and that Lidl had over 440 shops and an online store does not alter this, according to the court. Lidl could and should have considered the fact that it had to take measures at short notice, as it had received a letter of formal notice three days earlier. The fact that it was subsequently ruled that the Bombardino jacket was not protected by copyright, did not detract from Lidl's obligation to comply with the injunction.
On the basis of this judgment, Goldbergh is awarded the penalty payment of EUR 20,000. However, as her claims based on copyright and slavish imitation have been dismissed, she is the party that has largely been unsuccessful and must reimburse Lidl's legal costs amounting to over EUR 16,000. In conclusion, Goldbergh is left with EUR 4,000 from these proceedings, an amount that is most likely less than the legal costs she has incurred. It is therefore difficult to describe this outcome as a victory, for any party.
What does this mean for you?
This ruling contains two practical lessons, depending on your situation:
Have you received an ex parte injunction?
Seek legal assistance immediately and comply with the injunction fully and without delay, even if it appears to be unjustified or the time limit is short. Furthermore, do not assume that a minor or temporary breach will have no consequences.
Are you considering ex parte proceedings yourself?
An ex parte order can be swift and effective, and penalty payments can be imposed relatively quickly. Please note, however, that if the court later rules against you, you risk being ordered to pay the other party's legal costs. So ensure your (IP) grounds are well-founded before taking the matter to court.
Would you like to know how to prepare properly for this, or how to respond if you are served with an injunction yourself? Please feel free to contact Maurits.
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