A court in The Hague has issued its judgment in a case launched by beer brewer Bavaria against Yourhosting.

Slogans

Since 1985 Bavaria has been using the slogans "Zo, nu eerst ’n Bavaria" and "Zo. Nu eerst een Bavaria" ("And now, time for a Bavaria"). The slogans were developed for the brewer by an advertising company. Since 1998 Bavaria has held a trademark registration for the logo “ZO, NU EERST ’N BAVARIA” and since 2007 for the logo “ZO. NU EERST EEN BAVARIA”. In 2008 it also registered the logo “ZO”.

Yourhosting provides internet services, including cloud services. In order to highlight these services to the public, the company embarked on an advertising campaign using the slogan “Zo. Nu eerst naar de Cloud” ("And now. To the Cloud").

According to Bavaria, this slogan violated its copyright and trademark rights. It asked Yourhosting to stop using the slogan, which Yourhosting refused to do. The brewer responded by bringing legal proceedings.

Copyright

Bavaria felt that its slogan had a uniquely original character and bore the personal stamp of the maker. When developing the slogan, certain creative choices had been made, resulting in a recognisable and original slogan.

Yourhosting defended itself by claiming that the slogan was a normal Dutch phrase encouraging people to enjoy a beer after a certain event. Further, the hosting company felt that it was not alone and that many others on the Internet also used the words “Zo. Nu eerst...”. This then diluted any claimed violation of copyright on the Bavaria slogan.

Decision

In the opinion of the preliminary relief judge, Bavaria’s slogan was protected by copyright. The fact that the slogan was “catchy” with a certain comic factor showed that the brewer had made its own creative choices. The fact that it was written in normal Dutch did not mean that it was not creative. Bavaria also demonstrated that as part of the slogan, there was a clear pause after the word 'Zo'. According to the judge, this added an aural element to the original character of the slogan.

According to the judge, in this case there was no question of copyright dilution on Bavaria’s slogan. When considering whether a piece of work is protected by copyright, the moment when the slogan was made is decisive. The fact that other parties later copied the slogan or part of the slogan does not detract from this.

After establishing that Bavaria’s slogan was protected by copyright, the judge considered whether Yourhosting was violating this right. Here too Bavaria won its case. According to the judge, the characteristic part of the slogan subject to copyright was “Zo. Nu eerst”, whereby there is a clear pause after the word 'Zo'. The part "een Bavaria" was merely descriptive. The parts of the slogan protected by copyright were all copied by Yourhosting. According to the judge, the addition 'naar de cloud' was not characteristic and was descriptive.

Therefore, the judge held that by using the slogan “Zo. Nu eerst naar de cloud”, Yourhosting had violated Bavaria's copyright in the slogan “Zo. Nu eerst een Bavaria”.

Bavaria’s appeal on other grounds (eg, trademark rights and a wrongful act) were rejected.

Although Bavaria won the case, Yourhosting should not feel too disheartened as the case generated much publicity for both parties. And there will be no lack of beer at Yourhosting for some time: after the judgment, Bavaria delivered 140 crates of beer to the hosting company. So, not much of a hangover from the judgment, but perhaps more of one from the after party.

Sophie Charlotte Gauquier

This article first appeared in IAM. For further information please visit www.iam-media.com.