According to the preliminary relief judge in the Hague,
Bavaria's slogan from 1985, "Well, first a Bavaria"
("Zo, nu eerst een Bavaria") is copyright
protected and puts "Well, first off to the cloud"
("Zo, nu eerst naar de cloud") by Your Hosting
in violation of that copyright. A developed invention of thought
– like a slogan – is rather swiftly copyright protected
in the Netherlands, so long as it is original (= not borrowed) and
utilises creativity. Dutch courts have often assessed the question
of whether a certain slogan is protected by copyright. A classic
example is the slogan "Free your car – as fast as a
fly – from firmly fixed flying insects". In 1968,
the preliminary relief judge in the Hague found this slogan to have
"a sufficient degree of originality for attracting the
public" and for protection by copyright. 50 years later,
the District Court of the Hague found Bavaria's slogan
"concise and 'catchy', with a certain wittiness
for which the creator made free and uniquely creative
choices." Your Hosting tried to detract from the
originality of the slogan; the slogan is in plain, standard Dutch.
However, Your Hosting could not produce earlier examples of
expressions in the vein of "Well, first..." and after
"Well," there is a clear and deliberate paus that
contributes to the originality. Later examples of
"Well, first..." could not help Your Hosting. The court
found that, all in all, the originality and creativity was
sufficiently present and thus protected. Since Your Hosting had
borrowed the recognisable part of Bavaria's slogan ("Well,
first.."), Your Hosting was in violation of copyright. This
judgment confirms that the threshold for copyright
protection of a slogan in the Netherlands is rather low. Even the
combination of a few incredibly common Dutch words might cross the
necessary line, provided it has some unusual element to it. After
the ruling Bavaria promptly sent Your Hosting 140 crates of beer after the
judgment under the guise of "Everyone has earned a beer by
now." This "little package" was much appreciated by
Well, first we wait for the result from the appellate
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The focus on the product being obvious or anticipated as at a certain date provides powerful protection and commercial certainty without conflicting with a patentee's ability to obtain patent protection.
Once your trade mark is registered, you can use the ® symbol. It is not a requirement to use this symbol, but it can work as a useful deterrent as it flags to third parties that there is a risk of being sued for infringement if they use the same or a similar mark.
"If this business were to split up, I would be glad to take the brands, trade marks and goodwill and you could have all the bricks and mortar – and I would fare better than you."
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