Protecting a website by copyright, is that possible in the Netherlands?
Many entrepreneurs in the Netherlands consider it a major source of irritation: investing a lot of time and money in a website, only to see the competition benefiting from that investment or impairing it. So it was that two competitors came into conflict with each other about (among other things) their websites, their logos and the resulting “overall impression of similarity”. The court had to decide whether the copyrights on the website design, the logo and specific texts on the website had been infringed. Dutch intellectual property rights lawyer Manita Hamberg discusses the case.
Infringement of design, logo and texts
The claimant in this case is Nu Theorie B.V., a company that, among other things, provides courses in which students can pass the theoretical part of their driving test within a day. The respondent, Turbo Theorie B.V., is a driving school that offers similar courses. Through its lawyer, Turbo Theorie sued Turbo Theorie for the fact that it had, among other things, reproduced the website design and logo as well as specific texts on its website. Nu Theorie claimed the copyrights on all of these components and argued that Turbo Theorie had infringed those rights.
Check for protection under copyright
In order to claim copyright protection in the Netherlands, the work in question has to be original and possess unique characteristics. It must also bear the personal mark of the maker. It has to be original in the sense that it forms an intellectual creation of the maker, one that reflects the maker’s personality and that is expressed through the artistic choices made by the maker in creating the work.
Copyright on a website design?
The court first assessed whether copyrights could be claimed for the website design of Nu Theorie. The court established that, in particular, the choice of deep blue and magenta as highlight colours, the choice of a large photograph depicting youngsters jumping against a sunny blue background at the top of the home page (as a banner), the vertical positioning all of the various subjects on the homepage, the positioning of a selection menu for dates and locations in the aforesaid photograph and three windows placed next to each other for reviews on the various social media, constitute a personal intellectual creation in terms of website design. Nu Theorie was therefore deemed entitled to copyright protection of the website design.
Same overall impression of the websites
The court then deemed the website of Turbo Theorie to give the same overall impression as the website of Nu Theorie, seeing that it featured a similar combination of characteristics. One of the prominent features lay in the use a large photographic banner at the top, depicting several youngsters wearing sun glasses, jumping up against a background of blue sky (also with a picture of a campervan), in combination with other original characteristics of the Nu Theorie website, such as the highlight colours deep blue and magenta, a logo at the top left side of the homepage and another similar item, namely “how is your course progressing”. The court ruled that by giving the same overall impression, Turbo Theorie had infringed the copyright on the website design.
Text not protected by copyright in the Netherlands
The court also compared the logos, concluding that, despite the use of the same colours and colour distribution, the overall impression was entirely different, seeing that other words were used and different design details were applied. In respect of the website texts, the court concluded that they merely provided basic information about the courses and work method and were therefore not protected by copyright. The position taken by Nu Theorie, namely that Turbo Theorie was in violation of the copyrights on the logo and the specific website texts of Nu Theorie, was therefore not sustainable.
Discontinuation of the website design and rectification
Given the infringement of the copyright on the website design, the court ordered Turbo Theorie to permanently discontinue its website design, subject to a penalty of € 5,000.- for each day of noncompliance with the order, with a maximum of € 50,000.-. The court furthermore deemed rectification a fitting measure by means of which to limit/compensate the losses incurred by Nu Theorie due to the infringement of the copyright on the website design. This claim of Nu Theorie was also awarded. Turbo Theorie was compelled to display the rectification on the home page of its website and on its Facebook page for a period of two weeks.