Transfer Pricing Associates

Dutch Court Rules Against Miffy on Trademark Infringement Case

post Wednesday November 9, 2011

Tags: netherland; copyright law; trademakr law; parody; infringement


Sept 4th, 2011 Dutch court rules in favor of in a legal dispute over whether had infringed the copyright of Mercis by posting images of Miffy (known as Nijntje in Netherlands).

The Amsterdam Court of Appeal ruled that the pictures posted on website fell within the parody exemption in Dutch copyright law, thus Mercis can’t argue based on trade mark law to protect its cartoon character considering the humorous intention of the pictures. It is interesting to note that the court also rules that parody takes precedence over moral rights.

When the pictures of Miffy were first posted on, Mercis asked to remove the pictures. According to Mercis, many of the reworked Miffy pictures showed inappropriate content. The lower court found that five of the pictures were ok, the rest were affirmed inappropriate.

So what is Parody?

Copyright Law and Trademark Law protect the physical content of the property; however, they don’t protect the ideas. For example, the copyright law will protect the written words of an instruction book about how to build a new machine, but it will not call it infringement if someone builds the new machine based on the book. Copyright law and trademark law protect the property from coping without the authorization of the owner. But beyond general rules, many countries excuse certain circumstance that would be otherwise considered as infringement. Parody is one of these circumstances.

“Parody” based on Webster – “a literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule; a feeble or ridiculous imitation.” Synonyms include: burlesque, caricature, put-on, rib, send-up, spoof, takeoff, travesty. A work can be called parody if it is similar or resemble the original work in a humors or ridiculous way which prevents the work from infringement.

In Netherland, parody is set out in Section of 18b of the Auteursvet [Copyright Act]. To qualify for this exception a work must be copied in an amended form, with the result that the copy becomes an object of laughter or the tenor of the original work is drastically changed. Based on the ruling of the case, the judge found that the works posted on is a merely humors imitation.

Nevertheless, was asked to remove Image 1 and 7 that were original posted on the website considering the content. 

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