Publications

Publications
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            [post_date] => 2015-10-22 15:05:05
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            [post_content] => Most company websites are full of photographs. However, a lot of companies are not aware that they can't just use any photograph that they found on the internet, as illustrated by a case on which the county court of Overijssel recently ruled. In that instance a company, Meindersma, had posted a collage of photographs on its website, without the permission from the rightful owner.

The photographs were taken by a photographer named Wyszynski, who had transferred his rights to the photographs to Masterfile in 2007, which in turn supplied the photographs to third parties through its website. Meindersma had not requested permission from Masterfile to place the photographs on its own website.

The court ruled that Meindersma should have investigated whether or not posting the photographs on its website could be a copyright infringement. The court clarifies that institutions exist that search for the copyright holder. Apparently the court means commercial parties. According to the court, if the copyright holder cannot be traced, the user of the photograph is exonerated from any liability. The court rules that Meindersma had a profound duty of investigation which it did not fulfil.

The above ruling is in line with a ruling by the Court of Amsterdam in 2012, in which it determined that a company can be expected to trace the photographer and to investigate as to whether or not photographs are protected by copyright before using the photographs.

Given the above ruling, as a company, it is important to know whether the photographs you are using on your website (or any other promotional material)  are protected by copyright and who the owner of such rights is. You will have to investigate this thoroughly. The  rightful owner of the photographs will have to give permission to use the photographs for your website. In order to avoid liability and having to pay damages, it is vital to have proof of your investigation. If there is any doubt as to the ownership of photographs or whether or not they are protected by copyright, our advice is not to use them. There are various parties which – for a minimal fee – will provide you with the rights to use photographs of which the purpose has been established beforehand (known as stockphotos). Prevention is better than cure, after all.

If you have any questions on this subject, please contact the International Desk for a referral to one of our IP-specialists!
            [post_title] => Beware: you have a duty to investigate when posting photographs on your website
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            [post_date] => 2015-10-22 15:06:11
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            [post_content] => Certain flavours may be protected by copyright, as evidenced by a court ruling in The Hague on 13 January 2015.

In this case, Levola Hengelo BV, producer of Heksenkaas (“witch cheese”), requested permission from the court to impose a seizure of evidence. European Food Company BV produces Magic Cheese, which Levola claims tastes so similar to Heksenkaas that it infringes on copyright.

Although it involves an ex parte procedure (the counterparty is not involved in the proceedings), the court is setting an important precedent. Referencing an older ruling by the Supreme Court (Lancôme/Kecofa), the court considers it sufficiently plausible that a flavour can be copyrighted.

The Supreme Court’s ruling on the Lancôme/Kecofa case in 2006 illustrates that a work, the copyrighted object of protection, should be interpreted broadly. A scent is eligible for copyright protection. This is the first ruling regarding copyright on flavour, making this a remarkable decision.

However, a flavour must meet all requirements before it can be protected by copyright. It must be an original flavour (not a derivative work) and bear the personal mark of its creator (designed by creative choices). The trend in case law is that it is not hard for something to be considered a work. That now also appears to be the case for flavour.

Levola sent samples of both Heksenkaas and Magic Cheese to the court. After sampling, the court concluded provisionally that copyright infringement of the flavour of Heksenkaas had been sufficiently demonstrated, and the request for seizure of evidence was thereby granted.

If you have any questions about copyright protection of a work in any form, please contact the International Desk for a referral to one of our IP-specialists!
            [post_title] => Copyright on flavour? It’s possible.
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            [ID] => 434
            [post_author] => 21
            [post_date] => 2015-10-22 15:07:14
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            [post_content] => The sale of second-hand books goes without saying; you are allowed to resell a book to a third party without the author’s permission. But how does that translate to software? Can you sell software, which you purchased, to a third party without problem? It’s a tough question. The European Court of Justice even investigated this subject in a case between Oracle and UsedSoft.

That case was not really about the sale of second-hand software but about software licenses. After all, software is not a physical product that is sold like a book. Software is computer programming and is protected by intellectual property rights. The right holder can grant other parties permission to use the software. The usage right is called the user license.

In the UsedSoft verdict of 3 July 2012, the European Court of Justice ruled that the reselling of software licenses is permitted under the following conditions:
  1. It is a European license granted for use in the EU.
  2. It is a license for standard software distributed on media or by internet download.
  3. The license was granted for an indefinite period.
  4. The price paid for the license matches the economic value of the copy of the software. In practice this means paying a lump sum amount.
  5. The software license is resold as a whole and is not split. For example, if the original buyer bought 15 licenses at once, he may not resell them individually but as a bundle of 15 licenses.
  6. The seller must render any own copies of the software unusable after resale.
The UsedSoft verdict was based on the exhaustion principle, which states that once a copy of software has been released onto the market by sale with permission by the right holder (in this case Oracle), the right holder may not oppose further sales of it, just like in the example of the second-hand book which may be resold without permission by the author. The idea behind the exhaustion principle is that the right holder should be given an opportunity to charge a reasonable fee for marketing his software. After that, free movement of goods and services takes effect. The UsedSoft verdict has caused a lot of commotion, and has led to some interesting discussions and questions:
  • What if not all six conditions have been met?
  • Is the resale of a software license also permitted if it was granted for a fixed period?
  • What about SaaS or software in the 'cloud', where no media is issued and the software is not downloaded from the internet?
Software suppliers are advised to inspect their license agreements and make adjustments where necessary in order to limit the risk of undesired resale as much as possible. It might be interesting for software users to look into saving costs by reselling excess licenses. If you have any questions regarding the sale or resale of software licenses, please contact the International Desk for a referral to one of our IP-specialists! [post_title] => Sale of second-hand software [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => sale-of-second-hand-software [to_ping] => [pinged] => [post_modified] => 2015-10-22 15:07:14 [post_modified_gmt] => 2015-10-22 15:07:14 [post_content_filtered] => [post_parent] => 0 [guid] => http://31.3.97.74/~boelzander/en/?post_type=publicatie&p=434 [menu_order] => 0 [post_type] => publication [post_mime_type] => [comment_count] => 0 [filter] => raw ) [3] => WP_Post Object ( [ID] => 436 [post_author] => 21 [post_date] => 2015-10-22 15:16:53 [post_date_gmt] => 2015-10-22 15:16:53 [post_content] => During summary proceedings between fruit cracker producers Verkade (Sultana) and Mondelez (Liga), Mondelez successfully pleaded that Verkade be forbidden from continuing its “Best of the test” advertisement campaign. Mondelez claimed that Verkade should not be allowed to use the statement in this manner, as Verkade had not compared its products with competing products. The court agreed with Mondelez. At the very least, the statement suggests that fruit crackers from various producers and brands had been tested, while in actuality, Verkade had only conducted consumer testing on its own six flavours of Sultana. During the summary proceedings, Verkade admitted to not having tested fruit crackers from various producers or brands. As such, it was unable to substantiate its claims and the court prohibited Verkade from continuing its use of the “Best of the test” statement. This case illustrates that in advertising, one must exercise caution with statements suggesting that one’s own product has been proven the best in testing. If contested, anyone making such a statement must prove the statement to be factual. Verkade was unable to do so and was penalized by the court as a result. We regularly receive questions regarding clients’ or their competitors’ advertising statements. If you would like to know if a certain statement is permitted or wish to debunk a competitor’s statement, we are happy to be of assistance. [post_title] => "Best of the test" not permitted if unproven [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => best-of-the-test-not-permitted-if-unproven [to_ping] => [pinged] => [post_modified] => 2015-10-22 15:16:53 [post_modified_gmt] => 2015-10-22 15:16:53 [post_content_filtered] => [post_parent] => 0 [guid] => http://31.3.97.74/~boelzander/en/?post_type=publicatie&p=436 [menu_order] => 0 [post_type] => publication [post_mime_type] => [comment_count] => 0 [filter] => raw ) [4] => WP_Post Object ( [ID] => 18850 [post_author] => 17 [post_date] => 2018-07-27 10:38:36 [post_date_gmt] => 2018-07-27 08:38:36 [post_content] => Yesterday the Advocate General of ECJ launched his opinion in the Levola/Smilde case. Especially for the Dutch IP practice this is a judgment that we are all waiting for. In short, the facts come down to the following. Levola claims copyright on the taste of ‘Heksenkaas’, a kind of cheese spread with herbs. Smilde produces a similar cheese spread under the name ‘Witte Wievenkaas’. Besides the similarity of the products, the parties argue over the question whether Witte Wieven is considered to be an synonym for Heks, witch. The Dutch court posed preliminary questions to the ECJ which basically come down to the question whether it is possible to claim copyright on a taste. According to the AG, the answer is NO. A taste may not considered to be a work in the meaning of the Dutch copyright act, InfoSoc Directive or even the Berner Convention. Since taste can only be subjectively interpreted, the AG is of the opinion that a taste cannot be fixed and therefore, by lack of a technique to capture a taste, cannot be regarded to constitute a work. At the current state of the technique it is simply not possible to make a clear, accurate and accessible description of a taste. Also taste might even change over time, and is also subject to several other subjective aspects. The mere fact that the taste might be the product of creating activities, is insufficient to draw the conclusion that a work has been created. Although this opinion was to be expected, the opinion is also very interesting because of the question whether it is possible to claim copyright on a specific scent. In The Netherlands this is possible since the Dutch supreme court ruled in 2006 that Lancôme could claim copyright on its perfume. The French cour the cassation however ruled in 2013 that a scent cannot be regarded to be a work. With this opinion and following the same line of argumentation as in the case of taste, a scent is not a work according to the AG. Therefore taste nor scent are subject to copyright. This opinion not only answers the Dutch court’ questions on taste, but also shakes up the Dutch Supreme courts’ case law on scents. Will the ECJ rule on both topics as well? Or will only the preliminary questions regarding taste be answered? We will have to wait and see. If you have any questions regarding this article of copyright regulations in general? Please feel free to contact our team Intellectual Property [post_title] => Levola/Smilde: copyright on taste or scent? Not according to Advocate General [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => levola-smilde-copyright-on-taste-or-scent-not-according-to-advocate-general [to_ping] => [pinged] => [post_modified] => 2018-07-27 10:44:57 [post_modified_gmt] => 2018-07-27 08:44:57 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.boelszanders.nl/?post_type=publication&p=18850 [menu_order] => 0 [post_type] => publication [post_mime_type] => [comment_count] => 0 [filter] => raw ) [5] => WP_Post Object ( [ID] => 421 [post_author] => 21 [post_date] => 2015-10-22 14:10:32 [post_date_gmt] => 2015-10-22 14:10:32 [post_content] => Deze conclusie kan hij trekken uit een uitspraak van de rechtbank Zeeland-West-Brabant van 3 juni 2015. Roy Donders had een procedure aangespannen tegen Janssenconcepts. Janssenconcepts heeft namelijk 2 Benelux merkinschrijvingen gedaan voor het merk ROY DONDERS. Volgens Janssenconcepts omdat hij samen met Roy Donders zijn producten op de markt wilde brengen. Roy Donders had geen oren naar een dergelijke samenwerking en ging kort daarop met Jumbo in zee voor verkoop van de juichpakken. Janssenconcepts heeft Jumbo gesommeerd het gebruik van haar merken te staken. Roy Donders vordert in de procedure dat de merkinschrijvingen aan hem moeten worden overgedragen dan wel dat deze worden doorgehaald. Er zou namelijk sprake zijn van een depot te kwader trouw. De rechtbank wijst de vordering toe. Janssenconcepts was al op de hoogte van het gebruik dat Roy Donders maakte van zijn naam als merk voor kledingparties en verkoop van zijn huispakken. Ook als Janssenconcepts daarvan niet op de hoogte was, had hij dit kunnen weten. Roy Donders is namelijk een BN-er. Janssenconcepts had als eigenaar van een professioneel marketingbureau onderzoek moeten doen voordat hij de merken registreerde. Dat heeft hij niet gedaan. doorhalen toen bleek dat een samenwerking er niet zou komen. De De rechtbank oordeelt derhalve dat de 2 ROY DONDERS merkinschrijvingen moeten worden doorgehaald. Interessant detail is dat Janssenconcepts niet is veroordeeld in de werkelijke (1019 euro) proceskosten aan de zijde van Roy Donders. Janssenconcepts hoeft enkel de proceskosten begroot op basis van het liquidatietarief te betalen. Reden daarvoor is dat de nietigheidsactie niet samenhangt met een door Janssenconcepts gestarte inbreukprocedure. Er is dus geen sprake van een handhavingsactie waarop de handhavingsrichtlijn van toepassing is. Heeft u vragen over merkinschrijvingen of wordt u geconfronteerd met een depot te kwader trouw? Neemt u dan contact op met onze IE-specialisten! [post_title] => Roy Donders kan weer juichen [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => roy-donders-kan-weer-juichen [to_ping] => [pinged] => [post_modified] => 2016-07-14 21:23:36 [post_modified_gmt] => 2016-07-14 21:23:36 [post_content_filtered] => [post_parent] => 0 [guid] => http://31.3.97.74/~boelzander/?post_type=publicatie&p=421 [menu_order] => 0 [post_type] => publication [post_mime_type] => [comment_count] => 0 [filter] => raw ) )
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