Benelux ompanies using stripes on their vehicles must consider the right of the Netherlands, which safeguards its copyright and trademark rights in its territory in the stripes used on its vehicles. However, the state has not always succeeded in defending its stripes, as demonstrated in its case against Darkness Reigns Holding.
In 1992 the Dutch state commissioned the design of a house style for stripes on the government’s emergency vehicles. The aim was to ensure optimal reliability and recognisability of these vehicles. Red and blue were used for the stripes on police vehicles. The copyright in the striped design was transferred to the state, which also registered a device mark for the police stripes. The state also uses secondary striping, in which only blue stripes are used, and stripes in other colours.
Acting to prevent possible confusion
The state regularly and successfully acts against third parties that use striping which violates its rights, which it argues are aimed at safeguarding the reliability of emergency vehicles and protecting the public. For example, in 2012 security company Globe was forced to remove the striping from its vehicles because of its similarity to the police striping and possible confusion among the public.
In 2014 the state launched proceedings against Darkness Reigns. Darkness Reigns had also applied striping to a car, this time in black (the colour of the car), white and yellow. Like the striping used by the government, the striping consisted of double yellow stripes – but with one wide stripe and one narrow stripe – all along the car. The state felt that Darkness Reigns violated the striping of the police cars and launched legal proceedings against the firm.
Similar overall impression?
However, the preliminary relief judge disagreed with the state. The judge felt that the overall impression of the stripes was insufficiently similar to infringe the state's IP rights. It was particularly important that the striping used by Darkness Reigns ran across the back of the car and under the numberplate. It also had more lines on the back and sides, and the pattern on the front and back of the car was cut off higher up. However, the most notable difference was the wide and narrow double yellow stripes, which ran all along the car and which differed from the police striping and secondary striping.
Therefore, the judge felt that there was no overall likeness between the striping of Darkness Reigns and the striping in which the state holds copyright. At most, there was a general similarity, which was insufficient to constitute a copyright violation.
The judge also felt that the overall impression of the state's trademark and the striping of Darkness Reigns differed to such an extent that there was no question of similarity. Darkness Reigns used the car only to visit festivals and on holidays, not for commercial purposes. Without commercial use of the car, it could not be proven that it had obtained an unjustified advantage from the distinguishing capacity of the trademark. For that reason, the state’s trademark claim was also rejected.
As a result, the court held that the Darkness Reigns striping could remain as it was.
Lianne van Boxel-Stoffels
This article first appeared in IAM magazine. For further information please visit www.iam-magazine.com.