Mr Roderick Chalmers Hoynck van Papendrecht

Roderick Chalmers Hoynck van Papendrecht

Updates

Intellectual Property

'Spreading' a work under Dutch copyright law: the gift that should not have been given
Netherlands | 26 August 2019

Article 12 of the Copyright Act lists a number of acts that fall within the definition of 'disclosure to the public'. In addition to the more straightforward cases of disclosure, Article 12(1)(2) specifically stipulates that disclosure also includes verbreiding (translated in English as 'spreading') all or part of a work or a reproduction thereof where the work has not yet appeared in print. Although there is little case law on the act of spreading, the subject was recently debated in an Amsterdam Court of Appeal case.

Not all alterations of architectural works result in infringements of moral rights
Netherlands | 29 April 2019

The Supreme Court recently issued a long-awaited decision on an architect's moral rights of paternity and integrity. In recent years, several Dutch judgments have considered whether architects can oppose changes to their original building designs. The Supreme Court's decision further clarifies that it is difficult for architects to do so where the changes are necessary to alter a building's function.

No copyright protection for taste of food
Netherlands | 24 December 2018

The European Court of Justice (ECJ) recently rendered its decision in the dispute between Dutch parties Levola and Smilde concerning Levola's cream cheese product. The Arnhem-Leeuwarden Court of Appeal had referred a number of prejudicial questions to the ECJ – in particular, whether a taste can be eligible for copyright protection. Among other things, Levola argued that disallowing copyright protection for the taste of foodstuffs would be contrary to Dutch Supreme Court case law.

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
Netherlands | 24 September 2018

In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.

The considerable value of Max Verstappen's likeness
Netherlands | 18 June 2018

The Amsterdam District Court recently allowed a substantial damages claim following Dutch grocery delivery start-up Picnic's unlawful use of a lookalike of the famous Formula 1 driver Max Verstappen. This case clarifies that a person's right to control the use of their image cannot be violated easily. Although the parody defence is useful, the chance of success is limited if the parody is made in order to achieve commercial gain.

Supreme Court rules on use and functions of trademark
Netherlands | 12 February 2018

The Supreme Court has upheld an opposition against the refilling of a gas tank bearing the trademark PRIMAGAZ with gas from a third party. The Supreme Court held that where a party uses another's branded packaging for its own goods, it is the same as using the other party's trademark. Finding that the act of filling the tank constituted use of the mark in the course of trade, the court held that the third party had used the PRIMAGAZ mark for commercial gain.

Scope of protection of descriptive trade names
Netherlands | 23 October 2017

The Hague Court of Appeal recently rendered its judgment in a case in which the claimant was seeking protection for its trade name, Parfumswinkel, against a competing online perfume shop acting under the trade name Parfumswebwinkel. Although the outcome of this case is acceptable, the reasoning behind it is not necessarily correct. The main issue in the proceedings was whether trade name protection should be granted to trade names that are purely descriptive and lack inherent distinctive character.

Heks'nkaas: an appetising copyright matter
Netherlands | 26 June 2017

The Arnhem-Leeuwarden Appellate Court recently referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice. The case that led to the court's referral addressed the question of whether a certain taste can be protected under copyright law. The particular taste for which protection was sought was a popular cheese product.

ECJ rules that Dutch libraries' e-lending falls within scope of EU Rental and Lending Rights Directive
Netherlands | 19 December 2016

The European Court of Justice (ECJ) recently rendered its judgment in the dispute between Vereniging Openbare Bibliotheken and Stichting Leenrecht, which had been referred to it by the Hague District Court. The ECJ considered whether the lending of electronic books by Dutch public libraries falls within the scope of the EU Rental and Lending Rights Directive and is covered by the existing public lending rights regime under the Dutch Copyright Act.

No copyright protection for famous Bavaria slogan
Netherlands | 08 August 2016

A Dutch brewing company recently claimed that an internet service provider (ISP) had sought to capitalise on the reputation of its trademarks and benefit from the power of attraction, reputation and prestige of its mark. However, the claims were denied on the basis that the company failed to substantiate the negative effects that the ISP's use of a similar slogan had had on both its mark's distinctive character and its reputation.

Communication to the public: how much involvement is required?
Netherlands | 14 December 2015

The Supreme Court has referred another question to the European Court of Justice regarding 'communication to the public' as defined by the EU Infosoc Directive. The referral concerns a dispute between anti-piracy association the BREIN Foundation and two internet service providers hosting the notorious online index of digital content, The Pirate Bay.

Supreme Court orders full assessment of AFC Ajax shirt
Netherlands | 09 March 2015

In a case examining whether Dutch football club AFC Ajax's trademarks in its club strip were infringed, the Supreme Court has held that the appeal court failed to carry out a full assessment of the similarity of the marks. Such an assessment of the likelihood of confusion may be skipped only where there is no similarity between the earlier mark and the challenged mark.

Litigation

Not all alterations of architectural works result in infringements of moral rights
Netherlands | 30 April 2019

The Supreme Court recently issued a long-awaited decision on an architect's moral rights of paternity and integrity. In recent years, several Dutch judgments have considered whether architects can oppose changes to their original building designs. The Supreme Court's decision further clarifies that it is difficult for architects to do so where the changes are necessary to alter a building's function.

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
Netherlands | 25 September 2018

In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.

Scope of protection of descriptive trade names
Netherlands | 24 October 2017

The Hague Court of Appeal recently rendered its judgment in a case in which the claimant was seeking protection for its trade name, Parfumswinkel, against a competing online perfume shop acting under the trade name Parfumswebwinkel. Although the outcome of this case is acceptable, the reasoning behind it is not necessarily correct. The main issue in the proceedings was whether trade name protection should be granted to trade names that are purely descriptive and lack inherent distinctive character.

Heks'nkaas: an appetising copyright matter
Netherlands | 27 June 2017

The Arnhem-Leeuwarden Appellate Court recently referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice. The case that led to the court's referral addressed the question of whether a certain taste can be protected under copyright law. The particular taste for which protection was sought was a popular cheese product.

Supreme Court orders full assessment of AFC Ajax shirt
Netherlands | 10 March 2015

In a case examining whether Dutch football club AFC Ajax's trademarks in its club strip were infringed, the Supreme Court has held that the appeal court failed to carry out a full assessment of the similarity of the marks. Such an assessment of the likelihood of confusion may be skipped only where there is no similarity between the earlier mark and the challenged mark.