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| A Dutch buyer which had bought textiles from an Italian seller and had sold them on to customers, was sued by a third party for infringement of copyright on the design of the textiles and was condemned to pay damages to the third party. Consequently, the buyer commenced an action against the seller, primarily of the basis of its own standard terms (which provided for the seller's liability in case of damages arising, inter alia, from copyright infringements) and subsidiarily on the basis of Arts. 42, 45 and 74 CISG.
At first instance (Rb. Zwolle dated 01-03-1995, see abstract and fulltext in UNILEX) the Court decided in favor of the buyer on the basis of the primary foundation of its claim. The seller appealed. On appeal the Court reversed the first instance decision and rejected the primary foundation of the buyer's claim on the basis of the applicable law. Turning to consider the subsidiary foundation of the buyer's claim the Court held that under Art. 42 CISG the buyer has the burden of proving that the seller knew or could not be unaware of the intellectual property rights and allowed the buyer to produce evidence on its subsidiary claim. |