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| A Dutch buyer bought textiles from an Italian seller. The buyer, who had already sold the textiles to the public, got involved in a law suit with a third party who had claimed violation of his copyright, which rested on the design of the textiles. The buyer commenced action against the seller primarily based on its own standard terms, subsidiarily based on Arts. 42, 45 and 74 CISG. The seller objected to the applicability of the standard terms.
As to the primary foundation, with an interim decision (dated 16-3-1994), the Court held that the question of the applicability of the standard terms had to be determined by the law governing the contract which, by virtue of Dutch private international law rules, was Italian law. As to the subsidiary foundation, the Court stated that CISG was applicable (Art. 1(1)(b) CISG), and observed that under Art. 42 CISG the buyer must prove that the seller knew or could not have been unaware of the intellectual property rights. With the final decision (dated 01-3-1995), the Court decided the controversy on the basis of the primary foundation. This decision was reversed in part by Hof Arnhem (dated 21-05-1996), see abstract and fulltext in UNILEX. |