Martien Meiland has registered his iconic saying ‘HALF 12, WE GO WINE, WINE, WINE’ as a trademark. Lifestyle platform RUMAG uses similar text on merchandise such as clothes and wine bottles. Is that allowed?
Anyone who thinks of Martien Meiland thinks of the phrase “wines, wines, wines”. The phrase is uttered in such an inspiring way that even non-alcohol drinkers become enthusiastic. Both viewers of the television programme Chateau Meiland and non-viewers: almost everyone in the Netherlands recognises this phrase.
In case you really have no idea what this is about (or want to see another beautiful piece of Chateau Meiland), just click here. Meiland’s words, at least the full sentence ‘HALF 12, WE GO WINE, WINE, WINE’, has now been registered by his company as a trademark with the Benelux Trademark Office.
Sunday with Lubach
Meiland’s brand came to attention through a broadcast of the television programme Zondag met Lubach about the lifestyle platform RUMAG. I also covered this in an earlier blog.
Briefly, RUMAG is known for eye-catching text printed in white letters on a black background with dots instead of spaces.
However, it turns out that in many cases these lyrics were not made up by RUMAG itself, but were taken from (English-language) anecdotes circulating on social media.
What goes against
What is particularly galling in this case is that RUMAG prints RUMAG-style quotes on its merchandise and sells them through its webshop. So in effect RUMAG is making money from someone else’s creativity, which is what copyright, among other things, protects against.
In my previous blog, I indicated that RUMAG could very likely be held liable for copyright infringement in respect of at least some of the texts it has copied (and there are a lot of them).
Wines, wines
However, RUMAG not only adopts (potentially) copyrighted texts, but also (parts of) trademarks of others. Because the fact that the words ‘wines, wines, wines’ are commercially interesting has not escaped RUMAG’s attention. It offers clothes and wines in its webshop with the text ‘WIJNEN.WINEEN.WINEEN.’ on them.
Founder of RUMAG, Thijs van der Heide, himself stated that he copied the words from Meiland. The same text that has therefore now been registered as (part of a) trademark. Is that allowed?
Corresponding goods and services
Meiland (as proprietor of the trade mark HALF 12, WE GO WINE, WINE, WINE) is entitled, among other things, to prohibit another person from using signs similar to its trade mark. This requires that those signs be used in the course of trade in relation to goods and services which are identical or similar to those for which Meiland’s trade mark is registered. The use must also give rise to a likelihood of confusion on the part of the public.
Meiland’s trademark is registered for clothing and alcoholic beverages, among others. RUMAG uses the sign WIJNEN.WIJNEN.WIJNEN. on the same products, namely jumpers, T-shirts and bottles of wine. These products are sold through its webshop and therefore the sign is used in the course of trade.
How similar are brands?
Then the question is whether the marks are so similar that the public is confused, i.e.: thinks the clothes actually come from Meiland, or whether there is a partnership between RUMAG and Meiland.
This depends on the circumstances of the case taking into account several factors, including whether the mark and sign look the same, have the same meaning and sound the same when said aloud.
What is also important is whether the goods and services for which the mark is registered and the sign is used are intended for consumers who are not very attentive when they buy a product (and are therefore easily confused) or, on the contrary, make a very careful choice of product.
Some more factors
Thus, there are a number of other factors that come into play when comparing marks and signs and assessing likelihood of confusion. In the case of Meiland and RUMAG, it can very well be argued that the mark and sign are so similar that the public is confused.
What does not help RUMAG’s case (either) is that Van der Heide himself has said, “when you say ‘wines, wines, wines’, you think of Martien from Chateau Meiland”.
Boundaries of copyright and trademark law
RUMAG thus seeks the boundaries not only of copyright but also of trademark law. Incidentally, RUMAG has been reprimanded for infringements of someone else’s intellectual property rights for the first time in its five-year existence.
It was announced yesterday that radio DJ Bram Krikke has invoked his trademark rights. He registered the trademark JOEJOE for garments, among other things. RUMAG sold garments bearing the sign JOEJOE.
Confusion danger
Since the mark and sign are identical, whether there is a likelihood of confusion is irrelevant in this case and Krikke can, in principle, invoke his trademark rights. Which he successfully did: RUMAG has stopped selling garments bearing the sign JOEJOE and the entire proceeds generated by RUMAG will be donated to the Red Cross, Krikke’s manager said.
Full of anticipation, the intellectual property lawyer’s heart beat, waiting to hear whether Meiland will also take such action.
