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judgment
__________________________________________________________________________
THE HAGUE DISTRICT COURT
Commercial Section - provisional relief court
case number / cause list no. C/09/450858 / KG ZA 13-1064
Judgment in provisional relief proceedings of 9 October 2013
in the case between
1. BLACK RHINO ENTERPRISES LTD,
a company formed under foreign law,
having its registered office in Las Vegas, Nevada, United States of America,
2. DANIEL EDWARD AYKROYD,
residing in Chilmark, Massachusetts, United States of America,
3. JUDITH BELUSHI PISANO,
residing in Vineyard Haven, Massachusetts, United States of America,
claimants,
counsel J.P. van den Brink and S.C. van Loon, attorneys-in law practising in Amsterdam;
and
1. STARS IN CONCERT VERANSTALTUNG GMBH,
a company formed under foreign law,
with its registered office in Berlin, Germany,
2. STARS IN CONCERT UK LIMITED,
a company formed under foreign law,
with its registered office in London, United Kingdom,
3. BERNARD KURZ,
residing in Berlin, Germany,
4. TEC ENTERTAINMENT B.V,
a private company with limited liability,
with its registered office in Amsterdam,
5. GEOFFREY DAHL,
residing in West Lorne, Ontario, Canada,
6. CHRIS DAHL,
having no known domicile or residence,
defendants,
C/09/450858 / KG ZA 13-1064 2 9 October 2013
counsel: D.E. Stols, attorney-at-law practising in Amsterdam.
The parties will hereinafter be referred to as Black Rhino, Aykroyd, Belushi-Pisano
(claimants) and SIC Germany, SIC UK, Kurz, TEC, G. Dahl and C. Dahl (defendants).
1. The proceedings
1.1. The course of the proceedings is evidenced by:
• The summons of 18 September 2013, with 27 exhibits.
• The deed containing submission of exhibits of the defendants, sent on 23 September
2013, comprising 14 exhibits.
• The additional exhibits 28 to 34 (incl.) sent by the claimants on 25 September 2013.
• The additional exhibit 15 sent by the defendants on 27 September 2013.
• The increase of claim sent by the claimants by fax on 27 September 2013.
• The additional exhibits 35 and 36 sent by the claimants on 30 September 2013.
• The breakdown of costs received from both sides.
• The hearing held on 1 October 2013, at which counsel for both sides submitted their
pleadings.
1.2. At the hearing, the defendants filed an objection against the increase of the claim
which—as the court understands it—was allegedly submitted too late according to the
defendants. Since they have not explained that they were harmed in their defence by the
increase of the claim which, in summary means that part of the claims is not only instituted
against SIC Germany, SIC UK and Kurz, but also against TEC, and as they have not also
made plausible otherwise that this were the case, the provisional relief court finds that the
objection is ineffective. Therefore, the increase of the claim is allowed.
1.3. Judgment has been scheduled for today.
2. The facts
2.1. Aykroyd is an actor and comedian who, together with the late Mr. Belushi (hereinafter
referred to as: Belushi), during his life the husband of Belushi-Pisano, played the characters
of Elwood and Jake Blues since the mid-seventies, jointly referred to as: "The Blues
Brothers". The Blues Brothers are singers of blues and soul music whose outward
appearance is characterized by a number of fixed elements, such as a black suit, a white
shirt, black tie, black sunglasses, big sideburns and a black hat. Some photos of Aykroyd
and Belushi as The Blues Brothers are presented below.
C/09/450858 / KG ZA 13-1064 3 9 October 2013
2.2. In 1976, Aykroyd and Belushi performed for the first time on American television as
The Blues Brothers, as musical guests on the television program "Saturday Night Live". They
subsequently did a few guest appearances on the program between 1976 and 1978. In the
late 70s Aykroyd and Belushi released four albums as The Blues Brothers and they
performed in the United States with an accompanying band as The Blues Brothers. Their
performance of the song "I'm a Soul Man" by Sam and Dave was a hit in 1978.
2.3 In 1980 the movie "The Blues Brothers" was released by Universal Pictures. The
script was written by Aykroyd and edited by Dan Aykroyd and John Landis in the late
seventies. The copyright of the film script was registered by Black Rhino with the United
States Copyright Office in 1979. Aykroyd is director-major shareholder of Black Rhino.
C/09/450858 / KG ZA 13-1064 4 9 October 2013
2.4. A book about the characters was also published in 1980. Belushi - Pisano, the widow
and sole heir of Belushi, is the co-author of this book. In addition to this, she has been
involved in the marketing of the characters from the beginning.
2.5. In 2000, a sequel to the movie The Blues Brothers was released.
2.6. The claimants produce theatre and music shows around The Blues Brothers
themselves and they also issue licenses for these shows.
2.7. Aykroyd and Belushi-Pisano are the holders of the following trademark registrations:
• The Community word trademark THE BLUES BROTHERS, registered under
number 000309286 on 11 September 1998 in Class 9 (including sound
recordings and recording equipment) and Class 41 (for entertainment and
music services, cabaret services, concert services and song services, among
other services).
• The Community word mark BLUES BROTHERS, registered under number
010717841 on 6 September 2012 in classes 25 (including clothing), 35 (for the
promotion of music tours, festivals and artists, including via the Internet) and
43 (including catering services).
2.8. SIC Germany and SIC UK produce and organize musical and theatre performances.
Under the name "Stars in Concert", they produce so-called tribute shows, or homages, in
which impersonators perform music of various music stars. Some tribute shows are
dedicated to one particular group or artist. SIC Germany has its 'own' theatre at the Estrel
Convention Centre in Berlin. SIC UK was founded with a view to foreign productions. Kurz is
the director of SIC Germany and SIC UK.
2.9 TEC organizes theatre productions in the Netherlands and engages in, among other
things, promotional activities and ticket sales.
2.10 The Canadian brothers G. and C. Dahl are actors and performing artists. They
perform on tribute shows in which they impersonate The Blues Brothers. Following such a
show in the Canadian town of London, an attempt was made to contact G. Dahl on behalf of
the claimants in 2009. This resulted in an agreement signed on 13 July 2009 in which in
addition to the obligation to pay part of the receipts, the following was laid down (hereinafter
referred to as: the Agreement):
"PERFORMANCE AGREEMENT CONTRACT
C/09/450858 / KG ZA 13-1064 5 9 October 2013
This agreement made July 13'h, 2009 for the one-time, non-exclusive, use of the Trademark
protected image and look of the musical artists know (sic!) as THE BLUES BROTHERS, JAKE
and ELWOOD BLUES for 9 days July 24th, 25
th, ,26
th, July 31
st, Aug 1
st Aug 2
nd, and Aug 7
th,
8th, 9
th, 2009.
These performances will take place at the theatre known as THE LONDON CITY MUSIC
THEATRE 900 KING ST LONDON ONTARIO CANADA as part of the musical production I'M
A SOULMAN a show developed and produced by brothers Geoff Dahl and Chris Dahl aka Da
Blooze Bros, owners of the production company SHOW TOUR INTERNATIONAL.
Any future performances by the Dahl Brothers either as the "Blues Brothers" or "Da Blooze
Bros." from the date of this agreement on, anywhere in the world or at any venue, must have
prior written permission or viable contract first from the John Belushi Estate and NightOwl
Productions Inc.
Made between:
SHOW TOUR INTERNATIONAL/GEOPFREY DAHL
(...) ONTARIO CANADA
(...)
and VICTOR PISANO
THE JOHN BELUSHI ESTATE
and NightOwl Productions. Inc.
(...) MA (...)"
2.11 SIC Germany and SIC UK have announced that they would organize several tribute
shows under the name "I'm a Soul Man - a tribute to the Blues Brothers" in the Netherlands
(hereinafter referred to as: the Show). This show was also performed earlier in Germany.
The announcement can be found on for instance the websites www.stars-in-concert.de and
www.stars-in-concert.com.It concerns a performance on 11 October 2013 in the Rabotheater
in Hengelo, on 12 and 13 October 2013 at the World Forum Theatre in The Hague, and on
18 and on 20 October 2013 at the RAI Theatre in Amsterdam.
2.12 TEC is the promoter of the Show and rents the theatres and organizes the ticket sales
in the Netherlands. TEC has outsourced the ticket sales to third parties who sell the tickets in
their own name. TEC is the holder of the domain names thebluesbrothersshow.nl,
thebluesbrothersshow.com, and imasoulrnan.nl, which are or were used to attract the public
to this performance. The content of the websites is provided by SIC Germany and/or SIC UK.
Several screen prints and text passages are shown below.
[2 screen prints]
C/09/450858 / KG ZA 13-1064 6 9 October 2013
The first paragraphs of the text under the heading "Cast & Creatives" read as follows.
"I'm a Soul Man - A Tribute to the Blues Brothers"
"I'm a Soul Man - A Tribute to the Blues Brothers" is the successful musical comedy show
inspired by the style of the "The Blues Brothers" cult movies. The show is full of action,
humour and above all, hits such as "Everybody Needs Somebody to Love", "Think",
R.E.S.P.E.C.T." and "Soul Man". All of this, performed true to life by the explosive duo Chris
and Geoff Dahl, as the reincarnation of Jake and Elwood. Together with a fantastic live band,
the swinging Bluettes and even performances of 'Aretha Franklin' and 'Ray Charles', they will
bring you a great show full of brilliant hits. A guarantee for a festive evening!
Black suit, black hat and black sunglasses, the two Canadian artists, who are also brothers in
real life, do not only resemble their idols in every detail, they match the real Blues Brothers like
no other in terms of their moves and musical talent. During the two-hour live show, the Multi-
Talented Dahl brothers convince the public, both vocal and instrumental, with blues, soul , R &
B and Rock 'n Roll acts."
This page also contains texts about the artists who perform as Aretha Franklin and Ray
Charles and concludes with a heading "Dan Aykroyd", as shown below.
The bottom photo of the screen print shows the Dahl brothers with Aykroyd and is shown
enlarged below.
C/09/450858 / KG ZA 13-1064 7 9 October 2013
The text under the heading "Dan Aykroyd" reads as follows.
"The Dahl brothers with Blues Brother Dan Aykroyd himself: 'at an after party in Berlin we had
a great time with our hero Dan Aykroyd. It was great to have a drink and a chat with him and
we even played some real Blues with him. We can't wait until we see him again at one of our
shows in Canada!"
2.13. The website www.imasoulman.nl includes a promotional movie of the earlier German
tribute show about The Blues Brothers.
2.14. Kurz is mentioned as the (co) producer and director of the Show on the websites
www.stars-in-concert.de and www.imasoulman.nl.
2.15. In an e-mail dated 28 January 2013 from G. Dahl to the current agent of Aykroyd and
Belushi-Pisano, G. Dahl asked for permission to perform with his brother as The Blues
Brothers for SIC in Europe. In response to that email the agent asked for more information
on 31 January 2013.
2.16. On 31 January 2013, G. Dahl also asked the agent for permission for his brother and
himself to perform a show at an American casino.
2.17. The agent of Aykroyd and Belushi-Pisano sent a demand letter to two theatres in the
Netherlands in respect of the scheduled performance of the Show on 14 July 2013;
2.18 On 18 July 2013, a German lawyer responded to the demand letters to the two
theatres on behalf of SIC Germany and SIC UK and reiterated that according to her clients,
no infringement of rights was concerned, after she had already indicated this before with
regard to a demand letter in connection with shows in Germany.
C/09/450858 / KG ZA 13-1064 8 9 October 2013
2.19 In a letter dated 14 August 2013, the Dutch counsel of Aykroyd and Belushi-Pisano
also ordered TEC to cease promoting or offering the Show. On 3 September 2013, a
demand letter was sent to G. and C. Dahl and on 5 September 2013 to Kurz.
2.20. TEC subsequently deactivated the domain names thebluesbrothersshow.nl and
thebluesbrothersshow.com. On 20 September 2013, the subscriptions to these domain
names were terminated by TEC. On the date of the oral hearing, the domain names were in
so-called "quarantine", or "on hold", which means that only the holder can reclaim them. In
this situation, the cooperation of TEC is, in principle, required to transfer them to a third party.
2.21. The website under the domain name www.imasoulman.nl is still accessible and
at the time of the hearing, the information shown under 2.9 was still available there with the
exception of the picture and text about Aykroyd and the announcement that the Dahl
brothers would be performing as Jake and Elwood Blues. Since recently, the website states
that the roles of Jake and Elwood Blues will be played by two other actors on the Show. The
photos of the Dahl brothers have not been replaced and are still posted on the website.
2.22. On 3 April 2013, SIC Germany instituted proceedings at the court hearing the case on
the merits in which inter alia a declaratory decision is sought that Aykroyd and Belushi-
Pisano and their representative in Germany are not permitted to prohibit the "I'm a Soul Man
- a tribute to the Blues Brothers" show.
3. The dispute
3.1. After the change of claim, the claimants claim the following:
I. That defendants 1, 2, 3 and 4 be ordered immediately after service of the judgment to
be given in these proceedings, to cease and not resume any infringement of the
copyright and trademark rights of the claimants and any and all unlawful acts against
the claimants, including the production and promotion of "I'm a Soul Man - A Tribute
to the Blues Brothers" as defined in this summons, and any other use of the
characters "the Blues Brothers" described in this summons in or for any production or
performance;
II. That defendants 1,2, 3 and 4 be ordered immediately after service of the judgment to
be given in these proceedings, to immediately and definitively cancel any and all
scheduled performances of the theatre show "I'm a Soul Man -A Tribute to the Blues
Brothers" as defined in this summons, including - but not limited to - the performances
at the Rabotheater in Hengelo, at the World Forum in The Hague and at the RAI in
Amsterdam on 11, 12, 13, 18 and 20 October 2013;
C/09/450858 / KG ZA 13-1064 9 9 October 2013
III. That defendants 1,2, 3 and 4 be ordered immediately after service of the judgment to
be given in these proceedings, to notify the venues concerned of the cancellation
referred to under 11 in writing, with simultaneous transmission of a copy of such
notification to the counsel of the claimants;
IV. That defendants 1 to 4 (incl.) be ordered immediately after service of the judgment to
be given in these proceedings to cease and not resume the ticket sales for the theatre
show "I'm a Soul Man - A Tribute to the Blues Brothers" and to notify any third parties
who carry out the ticket sales on behalf of the defendants that the sales are to be
ceased immediately;
V. That defendants 1 to 4 (incl.) be ordered immediately after service of the judgment to
be given in these proceedings to cease and not resume any and all promotional
activities regarding the theatre show "I'm a Soul Man - A Tribute to the Blues
Brothers" as defined in this summons, including the mentioning and promotion thereof
on the websites www.stars-in-concert.de, www.stars-inconcert.com,
www.imasoulman.nl , and any other website;
VI. That defendant 4 be ordered within 72 hours after service of the judgment to be given
in these proceedings to transfer the domain names thebluesbrothersshow.com and
thebluesbrothersshow.nl to the claimants in compliance with the applicable SIDN
rules and to determine that if defendant 4 fails to comply with this order, the decision
to be given in these proceedings can take the place of a declaration of intent under
Book 3 Section 300 of the Dutch Civil Code to instruct its internet provider and SIDN
and/or the relevant authority for the .com domain, to transfer these domain names,
whereby any possible costs shall be for the account of defendant 4;
VII. That defendants 5 and 6 be ordered to fulfil their obligations to the claimants arising
from the licence agreement referred to in this summons, especially the obligation to
refrain from performing as the characters "the Blues Brothers" described in this
summons without the permission of the claimants, and, immediately after service of
the judgment to be given in these proceedings, to permanently cancel any and all
performances in which the they play "the Blues Brothers" characters as specified in
this summons;
VIII. That defendants 1, 2 and 3 jointly and severally be ordered to pay to the claimants an
immediately payable penalty of EUR 50,000 (in words: fifty thousand euros) for each
day or part of a day that defendants 1, 2 and/or 3 act contrary to the orders under I, II,
III, IV and/or under IV;
C/09/450858 / KG ZA 13-1064 10 9 October 2013
IX. That defendant 4 be ordered to pay to the claimants an immediately payable penalty
of EUR 25,000 (in words: twenty five thousand Euros) for each day or part of a day
the defendant acts contrary to the orders under IV, V and/or under VI;
X. That defendants 5 and 6 each jointly and severally be ordered to pay to the claimants
an immediately payable penalty of EUR 10,000 (in words: ten thousand Euros) for
each day or part of a day that defendant 5 and/or 6 acts contrary to the order under
VII;
XI. and that the defendants jointly and severally be ordered to pay the actual costs of
these proceedings under Article 1019h of the Dutch Code of Civil procedure;
all this provisionally enforceable and with determination of the period referred to in Article
1019i of the Dutch Code of Civil Procedure and Article 50(5) of the Agreement regarding
Trade- Related Aspects of Intellectual Property Rights (TRIPs ) at six months after the date
of this judgment.
3.2. The basis for the claims of the claimants is that the (proposed) versions of the theatre
show "I'm a Soul Man - A Tribute to the Blues Brothers" and its promotional activities are
published without the consent of the claimants, are copyrighted works, namely (i) the
characters Jake and Elwood Blues and (ii) the script of the movie "The Blues Brothers", and
that this infringes the trademark rights of the claimants. Furthermore, the claimants allege
that also in view of a (license) agreement with some of the defendants, default and (other)
unlawful acts against the claimants are concerned because the benefit from the alleged
breach. Finally, the claimants put forward that the theatre show and the promotional
materials infringe the portrait rights of Aykroyd and Belushi.
3.3. The defendants put forward a reasoned defence. To the extent relevant, the positions
of the parties will be further discussed below.
4. The assessment
Competence
4.1. To the extent that the claims are based on Community trademarks, the provisional
relief judge of this court is competent to take cognizance thereof under Articles 94(2b) , 95(1)
opening words and (a), 96 and 97 (1,4b) of Regulation (EC) No. 207/2009 of the Council of
26 February 2009 on the Community trademark (hereinafter referred to as: CTMR) in
conjunction with Article 3 of the EC Regulation on the Community Trade Mark
(Implementation) Act since SIC Germany, SIC UK and Kurz have voluntarily appeared
C/09/450858 / KG ZA 13-1064 11 9 October 2013
without challenging the court's competence and TEC is established in the Netherlands .
Insofar as the claims are based on the alleged (imminent) copyright infringement and the
alleged unlawful acts, the competence regarding SIC Germany, SIC UK and Kurz is based
on Article 5(3) of Regulation (EC) No 44/ 2001 of the Council of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters (the Brussels Regulation), since these defendants are domiciled or resident in
Germany and the United Kingdom, and the alleged infringement and wrongful acts occur in
the Netherlands, including in the Hague, and also via the internet throughout the Netherlands
and therefore also occur in the district of The Hague or are likely to occur there. The
provisional relief court is competent to take cognizance of the claims against the alleged
(imminent) copyright infringement and wrongful acts by TEC under Article 102 of the Dutch
Code of Civil Procedure. Thus far the court's competence has not been contested.
4.2. Regarding the competence to take cognizance of the claims against the brothers G.
and C. Dahl, the defendants have argued that the Dutch court has no jurisdiction because
those claims are based on an agreement between American and Canadian parties and that
compliance should be claimed before the Canadian courts. The provisional relief court puts
first and foremost that the claims against G. and C. Dahl provide provisional relief aimed at
the Netherlands, namely no performance of the show in the Netherlands without the
permission of the claimants. Whatever the competence of a court in the Netherlands in
proceedings on the merits of the case with regard to compliance with the agreement, this
provisional relief court is competent to take cognizance of the claims against G. and C. Dahl
under Article 13 of the Dutch Code of Civil Procedure.
Urgent interest
4.3. The urgent interest of the claimants - which, incidentally is not contested by the
defendants - of the claims lies in the alleged constant (threat of) infringement, wrongful acts
and/or non-compliance with an agreement.
Copyright
- Applicable law
4.4. In these provisional relief proceedings the claimants invoke copyright protection in the
Netherlands. Under Article 5 of the Bern Convention (hereinafter referred to as: BC), authors
of BC protected works in each affiliated country of the Convention have the rights accorded
to its own nationals. Whether a copyrighted work and infringement of that copyright are
C/09/450858 / KG ZA 13-1064 12 9 October 2013
concerned should therefore be judged under the laws of the country where protection is
sought, the lex loci protectionis, therefore, in this case Dutch law."1
- Film script copyright
4.5. The claims of the claimants are based on the copyright in the script of the movie "The
Blues Brothers". They argue that in view of the communication on the website
www.imasoulmnan.nl and the promotional video of the earlier German show on the website,
all the indications are that scenes from the movie will be re-enacted during the show. That
scenes will be re-enacted is also shown by the fact that it says on the website that the
performers are "on a mission from God", a statement that often occurs in the movie and that
Aretha Franklin, James Brown and Ray Charles will also appear, who also play a role in the
movie. According to the claimants, the promotional film contains a scene with Aretha Franklin
that corresponds to the scene from the movie in which Aretha Franklin plays a waitress,. The
claimants therefore claim that the film script will be published in violation of the claimants'
copyrights. Insofar as the claimants themselves are not entitled to such script, they are
entitled, based on submitted agreements with the producer of the movie, Universal Pictures
and the director John Landis, to maintain and invoke these rights, according to the claimants.
4.6. The provisional relief court understands from the statements of the defendants that
they contest that the claimants have sufficient rights to claim enforcement of copyright in the
script. The claimants point out that neither the script nor the movie have been submitted as
evidence to the court. They also contest that scenes will be re-enacted, or dialogues,
narratives or other recognizable parts can be watched. Only the most famous songs from the
movie will be sung. Unlike the previous performances in Berlin, no large screen will be used.
However, the artists who look like Aretha Franklin and Ray Charles will be present, but the
artist who plays Aretha Franklin will not be dressed in an apron as she does in the movie, but
in a beautiful dress.
4.7. Whatever the authority to enforce the copyright associated with the script of the movie
"The Blues Brothers", according to the provisional opinion of the court, the claimants, whose
claims are based on the copyright in the script of the movie, have not sufficiently
substantiated their claims in view of the defence of the defendants, and as a consequence
the claims cannot be awarded for that reason alone. Without being able to take cognizance
of the work or works for which copyright protection is invoked, the provisional relief court is
unable to give a (provisional) judgment regarding the alleged infringement the Show, as
announced, would constitute in regard to the script. The few stills from the movie contained
1 Cf. Appeal Court in The Hague 20 September 2007, LIN BY0896, IER 2010/35 and Appeal Court in
The Hague 22 January 2013,
C/09/450858 / KG ZA 13-1064 13 9 October 2013
in the above documents submitted to the court are in any case insufficient. Moreover, the
provisional relief court has insufficient material with regard to the Show as it will be
performed in the Netherlands to assess the alleged threat of an infringement, whereas the
infringement, given the statements of the claimants has been contested stating reasons.
- Copyright on characters
4.8 The claimants argue that The Blues Brothers duo, consisting of the fictitious
characters Jake and Elwood Blues, can be classified as copyright-protected works and that
the defendants infringe that copyright by bringing these characters into the public domain
through the Show and websites without the permission of the claimants. The elements listed
below are protected by the copyright separately and in combination (in one or other of the
various combinations of the elements a-f, listed below):
a) musical duo;
b) the musicians are brothers;
c) the duo uses the name “the Blues Brothers”
d) the characters’ names are Jake and Elwood Blues;
e) the repertoire is blues and soul music, including the number “I’m a Soul Man”;
f) the characters wear a black suit, white shirt, black tie, white socks, black shoes and
black sunglasses;
g) the characters wear black ‘pigskin’ hats;
h) the characters sport prominent sideburns;
i) Jake is short and thick-set, Elwood is taller and slimmer;
j) Jake is the lead singer, Elwood does predominantly the accompaniment and makes
the distinctive dance moves;
k) Elwood carries a briefcase, containing just one single blues harp, secured to his wrist
with handcuffs and a long chain;
l) the characters have a fixed performers' order of the songs;
m) the characters assume a ‘cool’ reserved pose (they do not laugh);
n) the choreography is characterized by a lot of fast footwork, transition from quiet to
wild and apparently uncoordinated dancing, distinctive use of hands and arms. Jake
turns cartwheels and does ‘high kicks’;
o) the characters have their first names tattooed on their fingers;
p) the characters have distinctive phrases, including “we’re on a mission from God” and
“we’re putting the band back together”.
4.9 Defendants dispute that The Blues Brother characters are copyright-protected works.
First of all, they argue that the characters consist for more than 95% of their own sartorial
choice (a dark suit with hat and sunglasses) which is nothing more but the sartorial style
used by the blues musicians from the second half of the last century. Other elements are
C/09/450858 / KG ZA 13-1064 14 9 October 2013
mundane or not sufficiently fleshed out, or do not constitute a fixed element of the
characters, which, even considered in combination, is insufficient to constitute works.
4.10 The provisional relief court states first of all that in order for a work to be protected
within the meaning of the (Netherlands) Copyright Act it is required that the production
concerns the author’s own intellectual creation reflecting the author’s personality and
expressing the author’s personality through free creative choices on creating that
production.2 What is in any event not included is everything that has such a mundane or
trivial form that no creative endeavour of any form whatsoever can be indicated. It is not
important whether the various elements comprising the works are each separately copyright-
protected or not. What it boils down to is that the combination of elements (whether
individually copyright-protected or otherwise) from which the works were created meets the
standard referred to above3.
4.11 Furthermore, it may also be possible as a rule for a character as such to meet the
works requirements. To that end, it is required that the distinctive features of that character,
at least the combination of the distinctive features of the character as bestowed by its
author, meet the standard as referred to above. For instance, after it had stated that
copyright protection should not be too readily assumed, the Amsterdam Court of Appeal
found that the Bassie and Adriaan [Dutch clowns] characters constituted copy-right
protected works as these characters have a consistent distinctive appearance that was
described in the judgment4.
4.12 It is the provisional judgment of this provisional relief court that the Jake and Elwood
Blues characters, as known as The Blues Brothers, are not copyright-protected works for the
reasons as stated below.
4.13 The claimants did not contest that the appearance of Jake and Elwood Blues, namely
a duo wearing a black suit, with a white shirt, black tie, white socks, black shoes, black
sunglasses, black ‘pigskin’ hats and sideburns (elements f, g, and h) are similar to the dress
style of a number of blues legends form the 1950s, such as Reverend Gary Davis and John
2 ECJ 16 July 2009, C-5/08, LJN BJ3749, NJ 2011, 288 with commentary from P.B. Hugenholtz
(Infopaq-I); CJEU 22 December 2010, C-393/09, LJN BP0405 (Softwarová); CJEU 4 October 2011, C-403/08 and C-429/08 (Premier League); CJEU 1 December 2011, C-145/10 (Eva-Marie Painer v. Standard Verlag GmbH et al.). The terminology used in the CJEU judgments that are derived from article 1.3 of the Council Directive 91/250/EEC on legal protection of computer programs are in essence the same as the terminology used by the Dutch Supreme Court in HR 30 May 2008, LJN BC2153 (Endstra tapes). For a more recent judgment, see the Dutch Supreme Court of 22 February 2013, Stokke – H3 Products, LJN BY 1529. 3 Cf. Dutch Supreme Court of 22 February 2013, Stokke – H3 Products, LJN BY 1529.
4 Amsterdam Court of Appeal, 30 January 2003, AMI 2003, 9, with commentary from Koelman (Bassie
and Adriaan III).
C/09/450858 / KG ZA 13-1064 15 9 October 2013
Lee Hooker. The claimants even stated at the hearing that Aykroyd and Belushi were
inspired for The Blues Brother by the performers of the so-called hipster style of ‘Electric
Blues’ performers from Chicago.
4.14 On the basis of these style features that form undeniably an important part of the
characters’ appearance and which were copied by the claimants form previous blues
legends, the claimants cannot claim protection by copyright in these provisional relief
proceedings. After all, as the Dutch Supreme Court has recently confirmed, the Dutch
Copyright Act does not grant exclusive right to a person working on the basis of his own
distinctive style. This judgment is based on the idea that copyright protection of abstract
forms such as distinctive style features would entail an intolerable restriction on the creative
freedom of an author and would therefore act as a brake on cultural developments.5 Element
(e) (blues and soul music / song repertoire) is also a distinctive style feature and therefore
unprotected.
4.15 Elements (a) musical duo, (b) the musicians are brothers and (j) the casting can be
considered to be trivial or mundane so that the elements taken individually are not copyright
protected either. It is not disputed that the name of the duo The Blues Brothers and the
names Jake and Elwood Blues (elements c and d) can be copyright-protected. However, the
claimants do not invoke the names separately but only as part of the characters.
4.16 It is the provisional judgment of this provisional relief court that the claimants, also
taking into consideration the defence of the defendants in this regard, failed to flesh out the
elements (l), (m) and (n) referred to in 4.8 in sufficient detail to have these elements taken
into consideration as part of the characters. Without any further substantiation, the
description such as “a fixed performers’ order of the songs” or “a ‘cool’ reserved pose” and
a choreography or dance style described in general terms, citing only one example (the
performance of the song “I’m a Soul Man”) for substantiation of that argument and
furthermore only presenting a couple of pictures, does not provide the adequate footing
needed to determine what these elements mean specifically and whether these elements
may be protected by copyright. The defendants put forward the uncontested argument
regarding the choreography that a number of steps of The Blues Brothers’ dancing style,
described in general terms (lot of fast footwork, transition from quiet to wild and apparently
uncoordinated dancing) also forms part of the blues style imitated in fact by The Blues
Brothers themselves.
4.17 The claimants did not dispute that although elements (k) Elwood Blues carries a
briefcase secured to his wrist with handcuffs and a long chain, (o) the characters have their
5 HR 29 March 201.3, Stijl, LJN BY8661
C/09/450858 / KG ZA 13-1064 16 9 October 2013
first names tattooed on their fingers and (p) the distinctive phrases appear in the 1980 movie
The Blues Brothers, they are not a consistent part of the characters. These elements must
therefore also not be taken into consideration in judging the issue whether the characters
enjoy protection by copyright.
4.18 By not taking the elements k, l, m, n, o and p into consideration, the provisional relief
court finds in this provisional judgment that the remaining elements, also considered in
combination with each other, fail to meet the standard formulated above. These elements
describe in fact a musical duo, dressed in blues style, performing songs from the blues
repertoire. That the name of the duo is The Blues Brothers and that it comprises two
brothers bearing the name Jake and Elwood Blues is completely insufficient to find
otherwise.
4.19 At this current state of affairs, the questions whether Aykroyd and Belushi-Pisano are
persons entitled to the copyright of the characters and whether the copyrights were infringed
or ran the risk of being infringed—questions contested by the defendants—do not require
any further discussion.
Portrait rights
4.20 In the event that the claims based on copyright were to be denied, the claimants
relied on the portrait rights of Aykroyd and Belushi in pursuant of Section 21 together with
Section 25a of the (Dutch) Copyright Act together with Book 6 Section 162 of the (Dutch)
Civil Code. In view of the above, the provisional relief court has to find judgment on this
alternative basis.
4.21 Invoking the portrait rights of Aykroyd and Belushi, the claimants argue that they are
allowed to oppose the live performances of G. and C. Dahl as The Blues Brothers in the
Shows and the pictures of G. and C. Dahl as The Blues Brothers in online promotional
literature. The similar facial features (including the sideburns and where Aykroyd is
concerned the, relatively speaking, small and long face and where Belushi is concerned a
broad face, where these features are enhanced because these faces are shown together),
the characteristic poses (and that one is tall and thin and the other is short and thick-set)
and the presence of other identifiable factors (such as distinctive clothes, tattoos on the
fingers, the names Jake and Elwood Blues and presenting themselves as brothers) would
mean, according to the claimants, that the performances and the pictures of G. and C. Dahl
have to be regarded as portraits of Aykroyd and Belushi. The claimants argue that they have
a reasonable interest against publication of these portraits (cashing-in on popularity).
C/09/450858 / KG ZA 13-1064 17 9 October 2013
4.22 Defendants dispute that the claimants are able to prohibit the Show or the challenged
pictures by invoking the portrait rights.
4.23 Following the announcement of a change in the cast performing as The Blues
Brothers in the Show (which had been apparent from the exhibits on the part of the
defendants and confirmed at the hearing), Aykroyd and Belushi-Pisano failed to extend the
grounds of their claim in the sense that images of these new performers also had to be
prohibited. So assessment of this claim regarding the new performers will therefore not be
addressed. In contrast, the claimants uncontestably argued to still have an interest in their
claim regarding the performers G. and C. Dahl as The Blues Brothers as their pictures can
still be seen on the website www.imasoulman,nl and that there is still a risk that they will
perform in the Show.
4.24 The provisional relief court states first of all that the portrait right gives persons the
right to act, under certain conditions, against the use of a picture of themselves without their
permission. What must also be considered that even without similar facial features a portrait
can be construed to exist on the presence of other identifiable factors6.
4.25 It is the provisional judgment of this provisional relief court that the appeal on the
portrait right must be denied on the basis of the following grounds.
4.26 First of all, the portrait right relates to a portrait or a picture. To answer the question
whether there exists a portrait, the technique used is not relevant: a portrait can be made
with a pencil, pen, paint brush, clay, and bronze as well as with a photo or film camera.7 A
live performance as such does not an image make as it is not recorded in any way
whatsoever. A live performance cannot therefore be forbidden on the basis of the portrait
right. When asked at the hearing, the claimants confirmed that their claim does have indeed
as its purpose to prohibit a live performance and therefore not a prohibition of the publication
of a recording of that performance.
4.27 Second, the claimants do not invoke in fact the portrait right of Aykroyd and Belushi
but of the characters Jake and Elwood Blues. The arguments they put forward regarding the
recognizable features of Aykroyd and Belushi are after all to a large degree the features of
Jake and Elwood Blues. There are special circumstances under which the portrait right may
be invoked against look-a-likes8. This does not change the fact that the image of that look-a-
like must represent the portrait of a person. The mere fact that Aykroyd and Belushi would
6 The Dutch Supreme Court 2 May 2003, NJ 2004, 80 (Breekijzer)
7 Cf Auteursrecht, naburige rechten en databankrecht (on copyright law, related rights and database
law), paragraph 6.2 Spoor, Verkade, Visser, 3rd edition, Kluwer Deventer 2005. 8 Utrecht District Court 24 June 2005, IER 2005, 80, LJN: AT8316 (Gouden Gids/Yellow Bear)
C/09/450858 / KG ZA 13-1064 18 9 October 2013
not only avail themselves of their portrait rights if it concerns their person but also if it
concerned their ‘aliases', namely their characters in The Blues Brothers is denied in the
provisional judgment.9
4.28 It is the provisional judgment of this provisional relief court that the contested pictures
of G. and C. Dahl do not consist of such similar facial features or other identifiable factors
that it can be concluded that it is a portrait of the persons Aykroyd and Belushi. The
provisional relief court agrees with the defendants that the facial features of G. and C. Dahl
are not similar. Furthermore, the defendants were correct when they argued that the Dahl
brothers cannot be described by a long shot that of a person with a long and small face and
a person with broad face, neither of a tall and slim person opposite a small and thick-set
person. The other features referred to by the claimants (such as clothes, sideburns, tattoos
on the fingers, etc.) that do indeed appear on the pictures of the Dahl brothers are, however,
features of the Jake and Elwood Blues characters and not of Aykroyd and Belushi, so that
the provisional relief court will not take this into consideration.
4.29 In view of the above, there does not exist portraits within the meaning of the Dutch
Copyright Act that could be forbidden by the claimants, leaving aside the fact whether they
would have cause to do so in these circumstances.
Trademark law
4.30 The claimants subsequently put forward the argument that SIC Germany, SIC UK,
Kurz and TEC infringe their trademark rights within the meaning of—among other
provisions—article 9(1)(b) Community Trademark Regulation. They argue that the
defendants use the trademarks as (part of the) title of the Show – “I’m a Soul Man – A
Tribute to the Blues Brothers” and in the promotional literature for the Show with phrases
such as “Blues Brothers Show” and “Blues Brothers Concert” and in the domain names
www.thebluesbrothersshow.nl and www.thebluesbrothersshow.com. By using the
trademarks for—at least similar—goods and services as the goods and services for which
these trademarks were registered (direct or indirect) confusion with the public may arise.
The public might well think that the Show is produced by the claimants, that there exists a
relationship between the claimants and the defendants and/or that the claimants have given
permission for the production and performance of the Show.
4.31 The defendants put forward as their argument that the claimants may not rely on the
1988 trademark THE BLUES BROTHERS because this trademark is expired on account of
non usus. The claimants have contested this argument with good reason referring to a
9 Cf Dutch Supreme Court 16 January 1970, NJ 1970, 220 (Ja zuster/nee zuster)
C/09/450858 / KG ZA 13-1064 19 9 October 2013
statement they have submitted listing examples of The Blues Brothers live shows licensed
by the claimants in various European cities from 2008 to the present day. As defendants
merely reacted to this defence with the argument that this list is inadequate, without giving
their reasons for it, the provisional relief court sets aside the non usus defence and assumes
in this provisional judgment that the aforementioned trademark is valid. The provisional relief
court will judge the alleged infringement of the trademark on the basis of both the older THE
BLUES BROTHER trademark as well the more recent BLUES BROTHERS trademark (see
above in 2.7).
4.32 The defendants do not dispute what the claimants have argued with regard to the use
of the sign ‘(the) Blues Brothers’ in the aforementioned publications, the similarity of these
signs with the trademarks, the similarity of the services, neither do they dispute that they
infringe these trademarks rights pursuant to article (9)(1)(b) of the Community Trademark
Regulation, so that the provisional relief court must proceed from that basis. The defence
put forward by the defendants is confined to the argument that the claimants cannot oppose
the use of the trademark made by the defendants relying on the exception of article 12(b) of
the Community Trademark Convention because this constitute permitted referred trademark
use. As the performance of a tribute show is allowable as a rule, the defendants are also
allowed to refer, for instance, with a tagline under the title that the show is a tribute to The
Blues Brothers. They may also refer to The Blues Bothers in their promotional literature, or
so they say.
4.33 It is a holder of a trademark not allowed under article 12, opening words and 12(b) of
the Community Trademark Regulation to prohibit a third party from commercially using his
sign similar to the trademark to the extent to identify the kind, quality, quantity, destination,
value, place of origin, time of production of the goods or performance of the service or other
characteristics of the goods or services in so far as it concerns the use in accordance with
proper industrial and commercial practices. Under the case law of the Court of Justice of the
European Union, this condition of use in accordance with proper industrial and commercial
practices essentially means an obligation of loyalty with regard to the justified interests of the
trademark holder. In assessing whether this constitutes proper practice, what must be taken
into consideration is the degree in which the use of the trademark by the third party is
understood by the audience or at least by a significant part of the audience as a reference to
the existence of a connection between the goods or services of the third party and the
holder of the trademark, as well as the degree in which the third party had to be aware of
that. What must also be taken into account in this judgment is the circumstance that it
concerns a trademark registered in the Member-State and where protection of that right is
requested, which enjoys a certain familiarity from which a third party may derive some
benefit to market its goods and services. A general assessment of all the relevant
circumstances of the case must be made in this regard.
C/09/450858 / KG ZA 13-1064 20 9 October 2013
4.34 The use of the sign ‘(the) Blues Brothers’ by the defendants in the designation “I’m a
Soul Man – A Tribute to the Blues Brothers”’ is according to the provisional judgment of this
provisional relief court not a proper use within the meaning as set out above. Contrary to
what the defendants argue, the designation ‘a tribute to the blues Brothers’ in the contested
sign is not only a subtitle but specifically a part of the title. The name of the Show is “I’m a
Soul Man – A Tribute to the Blues Brothers’. In all the submitted publications the two parts
comprising the title are reproduced together, below each other or at the same level. There
are some publications in which the part “I’m a Soul Man” is written in larger print than the
other part, in some publications the font size of the entire title is the same and in other
publications the signs ‘(the) Blues Brothers’ in the title is printed in contrasting colours or
capital letters were used emphasizing that part of the title. It means in this case, therefore,
that the defendants used the sign similar to the trademarks as the ‘product name’ of their
show. They offer that show in competition with the shows produced and exploited by the
trademark holders themselves using their trademarks. Although the defendants are free to
indicate, as they stated, that their show is a tribute to famous blues music (from artists such
as Sam and Dave, Ray Charles and Aretha Franklin) mostly familiar to the public in the
rendition of the Blues Brothers, it is not necessary to use the sign ‘(the) Blues Brothers’ in
the title of the Show. Use of the sign ‘(the) Blues Brothers’ in the title of the Show may in the
opinion of the provisional relief court create the impression with the relevant audience ( in
this case the (possible) theatre goers with an interest in the blues and soul music) that there
exists a special relationship between the defendants and the trademark right holders
Aykroyd and Belushi-Pisano. The defendants should have been aware of this. In so doing,
the defendants act insufficiently loyal in respect to the justified interests of the trademark
right holders. What must also be taken into consideration is that although the defendants
have contested that the trademarks are known within the meaning of article 9(1)(c) of the
Community Trademark Regulation they did not contest that the trademarks do enjoy a
certain degree of familiarity from which the defendants could have derived benefit in
promoting and exploiting the Show with the title ”I’m a Soul Man – a Tribute to the Blues
Brothers”.
4.35 Even if it were correct, as alleged by the defendants, that the public knows what a
‘tribute’ is, namely an homage and therefore not the performance of the “real” artist of flesh
and blood, it is our provisional judgment that the use of the word ‘tribute’ in the title of the
Show does not remove the impression that there is a connection with the holder of the
trademark. After all, in the shows that the trademark owners allow to be organised (under
license), the Blues Brothers are played by other performers than Aykroyd and the late
Belushi. The suggestion that there is a connection with the holders of the trademark is
strengthened because a picture of Aykroyd with G. and C. Dahl is placed on the website
www.imasoulman.nl. That the Dahl brothers mention on their website of “a full endorsement
C/09/450858 / KG ZA 13-1064 21 9 October 2013
from Dan Aykroyd and the Belushi estate for their live tribute to the Blues Brothers” and the
fact that they are “officially sanctioned”, is not relevant in this context as the claimants did
not argue that these defendants are infringing the trademark and it has neither been argued,
nor has it become evident that the defendants 1-4 had referred the public to the G. and C.
Dahl website.
4.36 The reliance on article 12(b) of the Community Trademark Regulation for the use of
the signs ‘Blues Brothers Concert’ or ‘Blues Brothers Show’ designating the Show or in the
domain names www.thebluesbrothersshow.nl and www.thebluesbrothersshow.com fail for
the same reason.
4.37 In so far as the designation ‘(the) Blues Brothers’ is used in the promotional literature
and on the website www.imasoulman.nl to describe the contents of the Show and as
designation of the source of inspiration for the Source, the use of the designation ‘Blues
Brothers’ is allowed. This refers to for instance the designations on the website as submitted
by the claimants as exhibit 6 (with the exception where ‘Blues Brothers’ is used in the title of
the Show as mentioned above).
4.38 Based on the above, the court provisionally finds that SIC Germany, SIC UK and TEC
infringe the trademark rights of the trademark holders Aykroyd and Belushi-Pisano, which
infringement they may oppose. It has neither been argued not has it become evident that
Kurz personally uses or threatens to use the signs concerned.
Performance
4.39 The claimants argue that the brothers G. and C. Dahl were not allowed to perform in
the Shows on the basis of the contract (see above in 2.10) without the permission of the
claimants. Also on behalf of his brother C. Dahl, G. Dahl did indeed request permission to
the agent of the claimants to be allowed to perform as The Blues Brothers for SIC in Europe
(see 2.15 above) but the permission referred to had not been granted. Claimants claim
performance of the contract.
4.40 G. and C. Dahl put forward the argument that the contract had been concluded under
pressure on the part of the agent of the claimants and that the obligation concerned was
included by that agent at the last minute and without consultation. However, G. and C. Dahl
have never contested the validity of the contract. They have also argued that the contract
was only signed by G. Dahl. They did not dispute that he did this also on behalf of C. Dahl
as ensues from that contract and that therefore the contract binds them both, so that the
provisional relief court has to proceed from this in its provisional judgment.
C/09/450858 / KG ZA 13-1064 22 9 October 2013
4.41 There is no agreement between parties about the question which law applies to the
contract. G. and C. Dahl argue that Canadian law applies, the claimants think that American
law applies. The contract does not include a stipulation in that regard. Whatever law may
govern the contract, what is not in dispute is that the contract must be construed in the
sense that the Dahl brothers have the obligation not to perform as The Blues Brother
somewhere in the world without prior permission of the claimants. It is not disputed either
that this permission with regard to the Show is absent.
4.42 The claimants uncontestably argued that G. and C. Dahl had the intention to play the
parts of Jake and Elwood Blues in the Show which was also announced on the website
www.imasoulman.nl. Although the names of other actors playing these parts are on the
website at the time of the hearing the pictures of G. and C. Dahl could still be found on the
website. It has not been contested either that the Dahl brothers did not made an
unconditional promise in that regard, so that it is not certain that they will not perform.
Therefore, the claimants continue to have an interest with their claim.
4.43 At this state of the proceedings, the claim to demand performance can be allowed to
the extent that it concerns the announced shows in the Netherlands. It has not been argued
that a relief is required with more extensive scope.
To act wrongfully; to benefit from a breach of contract
4.44 The claimants argue that SIC Germany, SIC UK, Kurz and TEC had acted wrongfully
in respect of them by intentionally profiting from the breach of contract on the part of G. and
C. Dahl who had failed to observe their obligations under the contract as they were aware of
the fact that the claimants had demanded performance in that matter.
4.45 The defendants referred to disputed that they acted wrongfully and argued that they
had not been aware of the contract when they asked G. and C. Dahl to perform in the Show.
4.46 Whatever may be the case, the arguments put forward by the claimants are found in
this preliminary judgment to be insufficient to find that the named parties acted wrongfully.
Transacting business with a person while it is known that this person violated a contract he
had concluded with a third party as a result of this business transaction is not automatically
unlawful in respect to this third party. More is needed to conclude that a wrongful act has
been committed. The claimants have not put forward additional circumstances.
Claims
C/09/450858 / KG ZA 13-1064 23 9 October 2013
4.47 Based on the above, the claims under copyright will be denied. The order addressed
to SIC Germany, SIC UK, Kurz and TEC to cease the (otherwise) wrongful actions in respect
to the claimants will also be denied.
4.48 SIC Germany, SIC UK, Kurz and TEC will be ordered to cease with the infringement
of the trademark rights of the claimants on condition that this order relates to the use of the
sign “(the) Blues Brothers” in the title of the Show “I’m a Soul Man – a Tribute to the Blues
Brothers”, in the sign “Blues Brothers Concert” or “Blues Brothers Show” designating the
Show and the use of the domain names www.thebluesbrothersshow.com and
www.thebluesbrothersshow.nl. The injunction will be restricted to the Netherlands. The
claimants only argued in their summons that the Shows planned in the Netherlands were
infringing their trademarks (on various grounds) and the relief sought did not requested a
cross-border injunction. The defendants indicated at the hearing that it was not clear
whether these claims also related to other Shows than those in the Netherlands, for instance
Germany, after which the claimants confirmed that their claims only related to the Shows
planned for the Netherlands. As Black Rhino fails to invoke the trademark rights of which it is
the holder, there are no grounds for its claim to cease the trademark infringements and that
claim can be dismissed. The penalty to be imposed together with the order will be mitigated
and subject to a maximum. Although the increase of the claim does not have as its object a
penalty to be imposed with regard to the compliance of the order by TEC, the provisional
relief court finds cause on its own motion to impose as well the penalty to ensure
compliance on the part of this defendant. The parties referred to will be ordered to cease the
trademark infringements within two days following the date of service of this judgment.
4.49 The claims II to and including V, an order to cancel immediately al the intended
performances of the theatre show “I’m a Soul Man – a Tribute to the Blues Brothers”, to
inform the locations were the performance was to take place, to cease with the sale of
tickets and to cease with all promotional activities will be denied. In view of what has been
stated above and as a trademark infringement injunction will be ordered is in this
provisionally judgment no cause to order a relief with a more extensive scope.
4.50 The claims VI that relates to the transfer by TEC of the domain names
www.thebluesbrothersshow.com and www.thebluesbrothersshow.nl to the claimants will be
awarded. It was discussed at the hearing that for the duration of the quarantine period the
domain name holder still has control over the domain name and may, incidentally, withdraw
the release. The claimants argued that consequently they continue to have an interest with
having the claimed transfer awarded. The penalty to be imposed together with the order will
be mitigated and subject to a maximum.
C/09/450858 / KG ZA 13-1064 24 9 October 2013
4.51 The brothers G. and C. Dahl will be ordered to observe their obligations with respect
to the claimants arising from the contract, specifically the obligation not to perform as The
Blue Brothers in the Netherlands without permission. The penalty to be imposed together
with the order will be mitigated and subject to a maximum. In this preliminary judgment there
are no grounds to award the claim to have the performances cancelled in which they will act
as The Blues Brothers as the claimants had failed to substantiate why such a relief was
necessary in addition to the order to be given.
Costs of the proceedings
4.52 As in the proceedings between the claimants on the one part and SIC Germany, SIC
UK, Kurz and TEC on the other, neither party has succeeded entirely, the provisional relief
court finds cause to order that each party will have to pay its own costs.
4.53 In the proceedings between the claimants on the one part and G. and C. Dahl on the
other, the latter will be ordered to pay the costs of the proceedings as the party found
against. As the claims brought against them were not based on any intellectual property
right, there is no room for payment of the costs of the proceedings in accordance with article
1019h of the Dutch Code of Civil Proceedings and the regular court-approved scale of costs
will be applied. The court will proceed from the assumption that where necessary the costs
of the claimants will be proportionally divided over the proceedings against the six
defendants, so that a third of the total costs to be estimated under the court-approved scale
of costs must be allocated to the proceedings against the Dahl brothers. The provisional
relief court estimate the costs in these proceedings on the part of the claimants to be €272
(1/3 of €816) in attorney’s fees, €196,33 (1/3 of €589) in registry fees and €76.71 in cost of
service, therefore to the aggregate amount of €545.04.
5. Judgment
The provisional relief court
In the proceedings between the claimants on the one part and SIC Germany, SIC UK, Kurz
and TEC on the other
5.1 Orders SIC Germany, SIC UK, Kurz and TEC to cease and not to resume, within two
days following the date of service of this judgment, each infringement in the Netherlands of
the Community word trademarks THE BLUES BROTHERS with number 000309286 and
BLUES BROTHERS with number 010717841 of Aykroyd and Belushi-Pisano, consisting of
the use of the sign BLUES BROTHERS in the title “I’m a Soul Man – a Tribute to the Blues
Brothers”, in titles “Blues Brothers Show” or “Blues Brothers Concert” in the domain names
C/09/450858 / KG ZA 13-1064 25 9 October 2013
www.thebluesbrothersshow.com and www.thebluesbrothersshow.nl as described in this
judgment.
5.2 Orders that SIC Germany, SIC UK, Kurz and TEC will forfeit a penalty to Aykroyd and
Belushi-Pisano of €10,000 for each day or part of the day that the defendant concerned fails
to comply in full or in part with the order given under 5.1, subject to a maximum of €250,000.
5.3 Orders TEC to transfer the domain names www.thebluesbrothersshow.com and
www.thebluesbrothersshow.nl to the claimants within seven days following the date of
service of this judgment, and where the domain name of www.thebluesbrothersshow.nl is
concerned according to the current rules of SIDN and orders that if TEC fails to comply with
this order, this judgment may substitute, in pursuant of Book 3 Article 300 of the Dutch Civil
Code, a declaration of intention of TEC to instruct its internet provider and to SIDN, or to the
relevant authority for the domain name of www.thebluesbrothersshow.com to transfer these
domain names where any costs will be at the expense of TEC.
5.4 Orders that TEC will forfeit a penalty to Aykroyd and Belushi-Pisano of €5,000 for
each day or part of the day that it fails to comply in full or in part with the order given under
5.3, subject to a maximum of €50,000.
5.5 Orders that each party will have to pay its own legal costs.
5.6 Orders that the time limit to institute an action in the main proceedings within the
meaning of article 1019i of the Dutch Code of Civil Proceedings be set at six months starting
on the day following the date of this judgment.
5.7 Declares this judgment to have immediate effect as far as possible.
5.8 Denies all other applications.
In the proceedings between the claimants on the one part and G. and C. Dahl on the other
5.9 Orders G. and C. Dahl to observe, within two days following the date of service of this
judgment, their obligations in respect to the claimants arising from the contract, namely the
obligation not to perform as The Blues Brothers in the Show in the Netherlands without
permission of the claimants.
5.10 Orders that G. and C. Dahl will forfeit a penalty of €2,500 for each day or part of the
day that the defendant concerned fails to comply in full or in part with the order given under
5.9, subject to a maximum of €100,000.
C/09/450858 / KG ZA 13-1064 26 9 October 2013
5.11 Orders G. and C. Dahl to pay the costs of the proceedings, estimated on the part of
the claimants until this judgment to be €545,04
5.12 Declares this judgment to have immediate effect as far as possible.
5.13 Denies all other applications
This judgment was given by Justice M.P.M. Loos and pronounced in open court on 9
October 2013 in the presence of the clerk of the court R.P. Soullié.
[signature] [signature]