Netherlands jurisdiction report: Copyright faceoff for facades

29-04-2020

Michiel Rijsdijk and Marlies Wiegerinck

Netherlands jurisdiction report: Copyright faceoff for facades

kavalenkava / shutterstock.com

On February 4, 2020, the District Court of Gelderland issued an interim order on copyright infringement of the facade of a recreational home.

The plaintiffs are Droomparken and Somnium. Somnium is engaged in the purchase and sale of recreational homes, which are rented out in the holiday parks of Droomparken. Germany-based Lacet (the defendant) is also engaged in the sale and purchase of recreational homes.

Droomparken argued that by offering the recreational home Lacet Bixx (pictured, below left) for sale, Lacet infringed the copyrights on the facade of the recreational home Cube Elite (pictured, below right). 

In response, Lacet claimed that the Cube Elite is not a copyright-protected work. Alternatively, Lacet claimed that it does not infringe the copyright because the Lacet Bixx is so different from the Cube Elite that it lacks the same overall impression. 

The copyright-protected features of the Cube Elite are decisive, but the unprotected elements could also be taken into account.

The court determined that it has jurisdiction, because the Lacet Bixx is offered in the Netherlands, and it addressed whether the Cube Elite enjoys copyright protection in the Netherlands. 

Case study

The court began with an overview of the leading Court of Justice of the European Union and Supreme Court of the Netherlands case law on this issue: Infopaq 1, Stokke v H3 Products and Erven Endstra v Nieuw Amsterdam. From these cases it follows that the work must have an original character and bear the creator’s personal stamp. This does not include works with a form that is so banal or trivial that no creative effort of any kind can be identified. 

The choices made by the maker may not serve a purely technical effect or be the result of a choice limited by technical principles. Nevertheless, a collection or a certain selection of elements that are not protected on their own can be an original work. What matters here is whether the design of the various elements is of such a nature that it can be assumed that it is based on creative choices made by the maker. 

For the assessment, the court mentioned a couple of elements of the facade of the Cube Elite and concluded that none of these elements has an original character on its own. However, the court ruled that the combination of these elements does have an original character and does bear the creator’s personal stamp. The facade has a clear identity which is the result of creative choices so, consequently, the facade is a copyright-protected work.

Second, the court assessed whether the Lacet Bixx constituted a copyright infringement. The Decaux v Mediamax judgement indicates that it must be assessed as to what extent the overall impression of the Lacet Bixx corresponds with the Cube Elite. In doing so, the copyright-protected features of the Cube Elite are decisive, but the unprotected elements could also be taken into account. 

The court ruled that the design of the Lacet Bixx facade in essence corresponds entirely with the characteristics of the facade of the Cube Elite. The fact that there are also differences was, in the court’s opinion, not relevant for the overall impression because these differences are subordinate. The overall impression of both facades was similar, so Lacet was infringing the copyrights of Droomparken, according to the preliminary judgment.

The injunction was awarded and applied across borders, because the concept of what constitutes a copyright-protected ‘work’ and the right of reproduction have both been harmonised within the EU. In addition, Droomparken has an interest in a cross-border injunction since Lacet had declared its intention to offer the Cube Elite for sale in Spain. 

Altogether, this case gives a clear and practical overview of how to deal with copyright matters where there is a combination of copyrighted-protected elements and non-protected elements, in the Netherlands. 

Since in this case, the combination of non-protected elements formed a protected work, it remains questionable to what extent the same non-protected elements can be used in a way that doesn’t infringe the combination forming a protected work. This will need to be assessed case by case. 

Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

Marlies Wiegerinck is senior associate at Arnold + Siedsma. She can be contacted at: mwiegerinck@arnold-siedsma.com 

Netherlands, report, jurisdiction, Copyright, facade, Cuba Elite, Lacet Bixx, Droomparken, Somnium, recreational homes, holiday parks

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