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07 August 2018
In a recent case, The Hague District Court had to assess which parties could be held accountable for a company's trademark and copyright infringement.(1)
Novomatic cs, which is active in the online slot game field, filed suit against various parties – companies (within and outside the European Union) and natural persons (with unknown addresses) – which it suspected were behind websites offering slot games that infringed its trademarks and copyrights. Since the websites were accessible within the Netherlands, the district court held that it had jurisdiction to hear the matter.
After ruling that the disputed games infringed the claimant's trademarks and copyrights, the court had to assess which parties could be held liable. To this end, it had to assess, among other things, whether a natural person (A) could be held accountable.
Although the court could not establish whether (A) was an official director of Bluemay Enterprises NV (Curacao) – which had exploited the infringing slot games under a licence from a Cyprus-based company – this did not stand in the way of his liability. In accordance with Supreme Court case law, liability can arise where a party (either a natural person or a company):
In the present case, the court found that (A) could be considered to have acted as the actual director of Bluemay based on:
Directors can be held accountable for a company's actions only in special circumstances – for example, if they can be held personally culpable for the detrimental act. Whether this is the case depends on the nature and gravity of the breach and the particular circumstances of the case.
Specifically, in relation to IP infringements, the Supreme Court has held that directors can be held accountable if:
The Hague District Court deemed it sufficiently clear that (A) had been involved and was in charge of the exploitation of the particular websites on which the infringing slot games were offered. Thus, (A) was or should have been aware that the infringing slot games were offered on those websites. In addition, it did not appear that (A) had tried to prevent the infringement. Hence, he could be held liable.
Novomatic also claimed that Carmanco (a Bluemay trust company) was liable in its capacity as a director of the company. However, the court disagreed, as Carmanco was not officially listed in the Chamber of Commerce as a director of Bluemay, but rather as a local representative. Moreover, there were no indications that Carmanco had been aware of Bluemay's infringements or that Carmanco had had any control over the company. As such, Carmanco could not be held seriously culpable for Bluemay's infringements.
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