2.3.Ten behoeve van de verkoop van de eerste partij t-shirts heeft de toenmalig advocaat van STC bij brief van 16 juli 2019 aan [eiser] over de herkomst van de t-shirts verklaard:
Our client, the Dutch company with limited liability, Sport Trading Company B.V., informed me that it has offered for sale articles of the brand The North Face in a quantity of 3.072 T-shirts to you.
The supplier of our client showed us documentation with regard the offered products. Among others there is a letter of the general import firm of The North Face, a VF Company on The North Face letter head dated May 3rd, 2019, that states:
“
The T-shirt articles and quantity:
T92SIZFN4—M S/S NEW PEAK TEE TNF WHT 1608 pcs
T92SIZA7L—M S/S NEW PEAK TEE TNF COSMIC BLUE 1608 pcs
T92SIZKY4—M S/S NEW PEAK TEE TNF BLK-TNF WHT 1608 pcs
T92SIZMHB-M S/S NEW PEAK TEE CRDNLRED/TNFBLK 1608 pcs
T92SIZPB2-M S/S NEW PEAK TEE TNF HEATHER GR MEL 1608 pcs
Have been manufactured under all The North Face standards, and are free for resale in Europe. We also further confirm that the above five mentioned articles are a special production for the European outlets of the North Face brand of VF Corporation”
Furthermore the supplier of our client has sent an INDEMNIFICATION AGREEMENT & WARRANTY with your client dated July,... 2019 (hereafter: the “Agreement”).
The Agreement states, inter alia, the following:
On 3 May 2019 (the “Purchase Date”) the Parties [Supplier and Sport Trading Company B.V.] reached agreement about the conditions of the sale of the following t-shirts under the trademark THE NORTH FACE:
- T92S1ZFN4-M S/S NEW PEAK TEE TNF WHT 1608 pcs
- T92SIZA7L-M S/S NEW PEAK TEE TNF COSMIC BLUE 1608 pcs
- T92SIZKY4-M S/S NEW PEAK TEE TNF BLK-TNK- WHT 1608 pcs
- T92SIZMHB-M S/S NEW PEAK TEE CRDNLRED/TNFBLK 1608 pcs
- T92S1ZPB2-M S/S NEW PEAK TEE TNF HEATHER GR MEL 1608 pcs
(b) Parties acknowledge that Purchaser must be able to resell the Goods to either consumers and/or wholesalers (hereafter both separately and together: “Customer(s) “).
(c) In order for Supplier to be able to resell the Goods Supplier warrants, in short, that the Goods do not infringe upon the intellectual property rights of (any) third party/parties and that the Goods have been legally brought into the European Economic Area (EAA) with the permission of the trademark owner, the North Face Apparel Group, and are freely for sale within the EAA, as further described in section 1 of this Agreement.
(d) Additionally, Supplier, indemnifies Purchaser against, in short, the inability to sell and/or resell the Goods and/or the expenses or losses, because of, in short, the Goods being subject to any (alleged) theft and/or (alleged) passing off and/or the (alleged) infringement of the (intellectual property) rights of the trademark owner and/or the rights of (a) third party/parties; as further described in section 2 of this Agreement.
(e) Parties wish to implement their agreement regarding the indemnification and warranty given by Supplier to Purchaser by concluding this agreement;
The Agreement further stipulates the warranty and indemnification given by the supplier of our client.