Don't Go Dutch

The Institute for Information Law at the University of Amsterdam has been home to many IP scholars, including Bernt Hugenholtz and Mireille van Eechoud. The most famous scholar, now emeritus, is Herman Cohen Jehoram, who put Dutch copyright scholarship on the map and who has been fearless in expressing his views. Last year he published an article on a Dutch decision protecting, under copyright, the scent of a perfume, The Dutch Supreme Court Recognises Copyright in the Scent of a Perfume. The Flying Dutchman: All Sails, no Anchor [2006] European Intellectual Property Review 629.

His most recent article, in the just published issue of E.I.P.R. (HT to IPKat), takes on not only another Dutch decision, but other Dutch copyright scholars, The Dutch Supreme Court Recognises "Dilution of Copyright" by Degeneration of a Copyright Design into Unprotected Style, 29 EIPR 205-208 (2007). The subject of Professor Jehoram's ire is the Elwood decision, September 8, 2006 (Elwood) NJ 2006, 492 and BIE 2007/1, 41, which extended protection to "style." (The closest we have seen to this in the United States is Steinberg v. Columbia Pictures Industries, Inc., 663 F. supp. 706 (S.D.N.Y. 1987), involving Saul Steinberg's famous cover of the New Yorker magazine, but there fictional buildings were copied too).

As described by Professor Jehoram:

On September 8, 2006 the Dutch Supreme Court handed down its unreflected decision in a lawsuit between the Amsterdam firm G-Star and the Italian firm Benetton. G-Star had marketed new fashionable blue jeans, the "Elwood" jeans. The characteristics of this product were simultaneously described in the trade mark register: "slanted stitchings from hip towards crotch, knee parts, inserted piece in the seat, horizontal stichings at kneehight on the rear, wave-band on the rear at the bottom of the leg of contrasting color or other material, also used in combinations." Later the Benetton jeans appeared on the market, which, according to G-Star infringed her trade mark and copyrights in the Elwood jeans. The Amsterdam Court of Appeal awarded both claims. The Supreme Court suspended its decision on the trade mark claim until the European Court of Justice would have answered a preliminary question regarding European trade mark law. In this article only the final copyright decision of the Supreme Court will be considered. The defendant, Benetton, had argued that the copyright design of the Elwood jeans had degenerated into a common style, which was free for the taking, an analogy to trade mark law where a trade mark can degenerate into a generic term and thereby lose its protection, like for instance the original trade mark Grammophone. In court this reasoning failed, but only because G-Star had consistently sued third-party infringers of her copyright. Her own use of the design could of course not result in the degeneration of the design into a common and copyright-free style. The new construct of dilution of a design copyright in itself found favour, first with the Advocate-General at the Supreme Court Verkade. The court then followed this advice. The application of the construct in this case was only based on the fact, already stated, that the plaintiff G-Star had consistently warded off infringers of her copyright. This argument in itself is again consistent with accepted trade mark law. The mixing up of copyright and a certain particular element of trade mark law as such was not rejected, and this is the alarming message of the G-Star decision of the Dutch Supreme Court.

Professor Jehoram then discusses the theory behind the protection of style in the Elwood decision:

Style is free, whether it is a collective one of a certain period, like Jugendstil or Art Deco, or a personal one like the distinctive personal drawing style of Dick Bruna, an internationally famous Dutch writer and illustrator of children's books. Legally no distinction should be made between collective and personal style. Only a certain Dutch copyright expert, the lawyer and Utrecht professor Grosheide, wanted it differently. He defended copyright in at least a personal style, although this particular kind of style had already been at issue in [a] famous Dutch copyright decision of 1946 mentioned before, denying copyright in the personal style at issue. Grosheide argued that personal style and personal character are essentially synonymous in the copyright requirement of personal imprint of the author on a work. He wanted copyright protection of a whole oeuvre of an author, his existing works, and the ones still to be created. He called this the "handwriting" of an author. He forgot that copyright does not protect "handwriting", and not oeuvre. Grosheide confused copyright protection of a personal work with protection of the character of the author himself. As [I] wrote before : "Le style est l'homme même" (the style is the person himself). The person as such however is not protected by copyright, only his specific works. Undeniably though, the question can become more complicated when the work of an artist has been copied by others by way of style. ...[T]he Nijmegen copyright specialist Quaedvlieg... proposes to make the protection of the trendsetter "variable in time, to diminish". He is of the opinion that "In a breathing cultural (and industrial!) climate one cannot escape this", and that "The trendsetting design can have laid bare a string which vibrates with the spirit of the time, or opens new perspectives". In connection with "the development of the common inheritance of design" he thinks that "Copyright is not there to bind the spirit of the time, or the growth into something new". He then pleads for a "biologically breaking down of the trendsetting model". Copyright is here apparently something like plastics in garbage which should be biologically broken down. Professor Jehoram then returns to Professor Grosheide:

Grosheide now agitates for even a further merging of copyright and trade mark law: the specific requirement of trade mark infringement, "confusion of the public", should also be used in copyright cases. The result of the system of the Utrecht professor and his followers would be that the absence of confusion of the public in a specific case should lead to the judgment that no copyright infringement has taken place. This implies that if a pirate publisher reprints a bestseller and takes care to mention the real author and his own pirate publisher's imprint and in this way avoids any risk of confusion of the public, there would be no infringement of copyright. Would it not be simpler then to abolish the Copyright Act and those annoying treaties behind it in the first place? It remains to be seen what the Dutch Supreme Court will eventually decide on this proposed further merger: will it again succumb to the "phenomenological" siren song of Grosheide? Or will it retreat from its Elwood decision? The Supreme Court has with its Elwood decision introduced a totally new kind of annulment of copyright, the trade mark "dilution" by "degeneration of a work into an unprotected style". This concept runs counter to the Dutch Copyright Act and all copyright treaties which only recognise the ending of copyright by lapse of the term of protection. The Elwood monster is an internationally unique invention. The Netherlands are in this way again out of step with copyright in Europe, which had just been harmonised by the EU with no less than seven Directives, all in order to realise the free movement of goods.... The European Commission will have to put an end to both Dutch legal developments, although such a move may--it is feared--further contribute to the europhobic aversion of trendy Dutch lawyers to "Brussels". It is to be hoped that the Supreme Court will retreat from its unreflected Elwood decision before the European Commission steps in.