JURISDICTION REPORT: NETHERLANDS
THE ‘WAPPERVERBOD’: IN FOR A PENNY, IN FOR A POUND
Michiel Rijsdijk Arnold + Siedsma
Actively dealing with infringement is vital when dealing with IP. Tere should be actual rights to enforce. Indiscriminate claims purporting infringement of a patent or other IP rights are prohibited. In the Netherlands this is called a ‘wapperverbod’, which can be roughly translated into a ‘waving (with claims) ban’. If one party claims that his IP rights are being infringed, there should be valid IP rights, and the claim should also be acted upon. In the recent Betsoſt v Bubble case the court of the Hague had to put this situation in an international perspective.
Two computer soſtware developers make slot machine games for use on PCs. Betsoſt, based in Cyprus, introduced the idea of bringing an icon in the game forward, as if coming towards the player. Tis was called the ‘Expandicon effect’. Betsoſt claimed it had copyright on the source code of the Expandicon effect, as well as on the look and feel it created. Betsoſt had approached many parties around the world, claiming copyright infringement. Tese parties were using soſtware which replicates the Expandicon effect. Tis soſtware was created and sold by Bubble, based in the Netherlands. To prevent possible future claims of infringement by Betsoſt in the Netherlands, Bubble requested that Betsoſt was given a wapperverbod. Te request was granted.
Betsoſt appealed, first on the grounds that the judge had no jurisdiction, and second that Betsoſt’s copyright claims were genuine. A wapperverbod would therefore not be warranted.
To answer both questions, the court had to examine whether the fear of an unlawful claim (‘wapperen’) by Betsoſt was justifiable. To determine this, the court had to look at the alleged copyright infringement by Bubble. If Bubble was infringing on Betsoſt’s copyright, a future claim by Betsoſt would be valid and a wapperverbod would not be warranted.
Betsoſt claimed copyright on both the source code and the look and feel of the Expandicon effect. According to Betsoſt, the source code used by Bubble was an exact copy of Betsoſt’s code, proving infringement. When the court compared the two codes however, it became clear that the original code provided by Betsoſt was extracted from soſtware used by Bubble. In other words, the code was compared to itself, making the fact that it was an exact copy no surprise. Betsoſt also stated that the code was registered at the US Copyright Office, but the registered code bore no resemblance to the provided code.
In relation to the look and feel of the Expandicon effect, the court considered that Betsoſt hadn’t proved that the look and feel created by Bubble’s effect was very similar. Te court wasn’t too certain about possible protection under copyright law either, considering that the effect has been used in the movie industry for decades.
Knowing that Betsoſt lacked a copyright claim on the Expandicon effect, the fear of unlawful wapperen by Betsoſt was justifiable, which was confirmed by
www.worldipreview.com
“WHEN THE COURT COMPARED THE TWO CODES, IT BECAME CLEAR THAT THE ORIGINAL CODE PROVIDED BY BETSOFT WAS EXTRACTED FROM SOFTWARE USED BY BUBBLE.”
the many claims Betsoſt had already sent to different parties around the world. Tere was a reasonable chance Betsoſt would approach clients of Bubble in the Netherlands with the same claim, thereby damaging Bubble’s interests.
Since there was a reasonable possibility of a situation resulting in damages arising in the Netherlands, the case fell within the jurisdiction of the court referring to Article 5(3) EEX. Because the damages could have arisen in the Netherlands, Article 4(1) Rome II was also applicable.
Te case fell within the jurisdiction of the court and it found the fear for wapperen was justified. Te appeal was dismissed.
An interesting conclusion is that it is possible to get a wapperverbod without a party having started claiming its (purported) rights, and it can also result in a costs order against the party. Although Betsoſt did not start claiming infringement in the Netherlands, the preceding actions in other countries were taken into account when ordering it to pay for the proceedings.
Te important lesson to be learned by parties ‘waving with a ban’, is that if you do so, you should act upon it. One cannot send letters around the world claiming infringement, as Betsoſt did, while hoping that someone will take you seriously and give in. Many parties requested more information, but Betsoſt never acted upon its claims. Tis weakened its case against a wapperverbod. As Betsoſt now knows: if you’re in for a penny, you’re in for a pound.
Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at:
mrijsdijk@arnold-siedsma.com
World Intellectual Property Review September/October 2013 177
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