Bavaria has filed an objection in interlocutory proceedings against the slogan ‘Zo. Nu eerst naar de cloud’. [So. First of all to the cloud.] This slogan was used by Yourhosting for its cloud services. These proceedings were initiated due to Bavaria’s well-known slogan (‘Zo. Nu eerst een Bavaria’ [So. First of all a Bavaria]) that Bavaria claims is protected by copyright.
1. How does copyright work with slogans?
The Copyright Act offers scope for slogans or phrases to be protected by copyright laws. In terms of copyright law, the question is whether the ‘work’ to be protected has its own original character and bears the creator’s personal stamp. According to the EU Court of Justice, it must constitute an intellectual creation belonging to the author. This criterion may sound vague, but it relates to the fact that the author has made free and creative choices, and that no reference is made to banal or trivial elements.
2. What did the court decide?
The court ruled that ‘Zo. Nu eerst een Bavaria’ is a slogan protected by copyright laws. The slogan is ‘concise and catchy with a certain wit’, whereby it is believed that the slogan originated as a result of the author’s own and free creative choices. What is striking is that, according to the court, the copyright laws relate to the part, ‘Zo. Nu eerst…’ (So. First of all…), which only consists of three words in the Dutch. The threshold for copyright law applied by the court is therefore relatively low. The court therefore decided that the total impression created by the Yourhosting slogan is the same, in view of the fact that precisely the protected part of Bavaria’s slogan (‘Zo. Nu eerst…’) was copied by Yourhosting.
3. What now?
Relatively few proceedings are brought forward regarding the copyright of slogans, because these are usually considered to be a trade mark (which then requires trade mark registration!). However, the judgment is consistent with case law in this field, because copyright law has also been applied to slogans such as ‘Te vinden bij Inden’ and ‘Echt, je proeft het’ in the past. At the same time, the Bavaria slogan only consists of three words. As such, the already low threshold of copyright law seems to have been reduced even further. The court’s reasoning that the slogan is concise and catchy doesn’t seem to completely fit the established criteria for protection either. Finally, the question can be raised as to whether the words ‘zo’ [so], ‘nu’ [now] and ‘eerst’ [first] aren’t so commonplace that, even when used together, they are banal.
4. Provisional conclusion?
Protecting the copyright of slogans seems to be getting easier. This is a development that is undoubtedly being celebrated by marketing specialists.
5. And Yourhosting?
Small consolation for Yourhosting: they can lick their wounds with 140 crates of Bavaria beer, a playful courtesy from the brewer.