The Dutch brewer Bavaria, famous for its advertisements and always pushing the boundaries, has lost a lawsuit against the internet company Your Hosting. Your Hosting applied Bavaria’s usual way of working by referring to another brand: it adopted the slogan “Zo. Nu eerst naar de cloud” (So.. first to the cloud”) while Bavaria’s famous company slogan used since 1985 is “Zo. Nu eerst een Bavaria” (So.. first a Bavaria”).
The Court of Appeal in The Hague in short summary proceedings has overturned the decision of the District Court by ruling that Bavaria’s company slogan “Zo, nu eerst” (“So, first..”) is not a copyright protected work and that Your Hosting does not infringe the trade mark rights of Bavaria in the slogan by using “Zo. Nu eerst naar de cloud” (“So, first to the cloud”).
Bavaria is the owner of two Benelux trade marks for its company slogan “Zo. Nu eerst een Bavaria” which has been used by Bavaria since 1985 for its Dutch beers. According to Bavaria (and the District Court of The Hague in first instance), the slogan is a copyright protected work since it is a creative work and cannot be regarded as trivial or common in the Dutch language.
The Court of Appeal acknowledged that the combination and word order of a short sentence can indeed be a copyright protected work referring to the Infopaq decision of the CJEU. However, it ruled that Bavaria’s company slogan is not a copyright protected work since the choice of words and word order merely consist of the use of ordinary Dutch language without adding any creativity.
Bavaria’s claims based on its trade mark rights were also denied by the Court of Appeal. According to Bavaria, Your Hosting was taking unfair advantage by riding on the coattails of its well-known trade mark to benefit from the attraction, reputation and prestige of the mark. However, Bavaria failed to show any change in the economic behavior of the average consumer (in line with the ruling of the CJEU). According to the Court of Appeal, Bavaria also failed to show that the use of Your Hosting’s slogan was detrimental to the repute of Bavaria’s trade mark, in particular that the goods for which the infringing sign was used (hosting services) affected the trade mark’s power of attraction.
All in all a painful defeat for Bavaria who are known for replying with humor to commercials of competitors and always responding in new and original ways to news and events.