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blog 18 Mar 2016

‘So and now…’ Yourhosting vs Bavaria

Earlier this week, the Court in The Hague revealed its ruling during the interlocutory proceedings that the Bavaria brewer has filed against the company Yourhosting.

Slogans

Ever since 1985,  Bavaria uses two slogans: “Zo, nu eerst ’n Bavaria” and “Zo. Nu eerst een Bavaria” (in Dutch: “So, now first a Bavaria”). These slogans were developed by an ad agency, commissioned by the beer brewer. Bavaria has registered the trademark “ZO, NU EERST ’N BAVARIA” since 1998 and has also registered “ZO. NU EERST EEN BAVARIA” since 2007. The registration for the trademark “ZO”, was added in 2008.

Yourhosting offers internet services, including cloud services. In order to create awareness for their services, an ad campaign was launched in which the company used the slogan: “Zo. Nu eerst naar de Cloud”.

According to Bavaria, Yourhosting was infringing upon their copyright and trademark right. Yourhosting was summoned by Bavaria to cease its use of the slogan. Accordingly, Yourhosting made it clear to Bavaria that they will not live up to Bavaria’s demands. The brewer has responded by filing an interlocutory procedure.

Although Bavaria turned out to be the winner of this case, Yourhosting will not feel sorry for itself. This case has generated a lot of publicity for both parties.
Bart ten Doeschate - Trademarks & Designs

Copyright

Bavaria is of the opinion that its slogan has their own original character and carries the personal mark of its maker. With the creation of this slogan, certain creative decisions were made, resulting in the slogan being recognizable and original.

Yourhosting argues that the slogan is a common, generic Dutch sentence, in which the public is motivated to enjoy a beer after a certain event. Moreover, the hosting company is of the opinion that not only they, but many other parties on the internet use the words “Zo. Nu eerst…” This would mean that the copyright on the slogan of Bavaria has faded.

Verdict interim injunction judge

The interim injunction judge is of the opinion that the slogan of Bavaria is protected under copyright. The fact that the sentence is ‘catchy’ and has a certain quip, shows that creative choices were made by the developer. The fact that the sentence is a normal Dutch sentence, does not mean that it is not creative. Besides, Bavaria argued that, as part of the slogan, a clear pause is used after the word “Zo”. According to the interim injunction judge, this auditory element contributes to the original character of the slogan.

The judge states that this is not a matter of dilution of the copyright on the slogan of Bavaria. After all, whether or not it is a matter of copyrighted work, the moment in which the slogan is created determines that answer. The fact that other parties started to follow the slogan, or parts of it does not diminish that.

After determining the fact that the slogan of Bavaria is protected under copyrights, the judge had to answer the question whether Yourhosting infringes these rights. The judge again favoured Bavaria in this decision. According to the interim injunction judge, the characteristic- and the protected by copyright part if the sentence “Zo. Nu eerst…”, in which a clear pause follows the word “Zo.” The part “…een Bavaria” is only descriptive. The by copyright protected part of the slogan is entirely taken over by Yourhosting. The addition of “naar de cloud” is according to the judge not characteristic but descriptive.

The judge rules therefore that Yourhosing is infringing the copyrights of Bavaria’s slogan “Zo. Nu eerst een Bavaria” by using the slogan “Zo. Nu eerst naar de cloud”.

The appeal of Bavaria on other grounds, such as the trademark right and unlawful act is rejected by the Court based on lack of (urgent) interest.

Although Bavaria turned out to be the winner of this case, Yourhosting will not feel sorry for itself. This case has generated a lot of publicity for both parties. One thing is certain, Yourhosting will have enough beer for a while: Bavaria ordered 140 cases of beer to be delivered to Yourhosting after the verdict. Perhaps the possible hangover from Yourhosting was not a result from the verdict, but maybe from the drinks after.

 

Beeld: Bavaria