The European Court of Justice (ECJ) has ruled that clothing companies cannot automatically gain trademark rights to non-clothing products they give away free to promote their wares.

The precedent-making decision comes in a case involving Austrian clothing company Maselli-Strickmode GmbH, which claimed it had secured additional trademark rights for free gifts (a non alcoholic-drink) branded with its established Wellness clothing mark.

This was challenged by drinks manufacturer Silberquelle, which claimed Maselli had not used the Wellness mark for drinks, because it had not actually sold this type of product. Hence, Maselli had no trademark rights for Wellness regarding drinks and similar products.

ECJ judges backed the drinks maker. They ruled: "Where the proprietor of a mark affixes that mark to items it gives…to purchasers of its goods, it does not make genuine use of that mark in respect of… those items."

The ruling could be used in other cases where clothing companies give away branded free gifts.

By Keith Nuthall.