RUMAG’s use of someone else’s creativity for its own benefit: a trademark perspective.

In the Netherlands there is a Dutch reality show about a family called the Meilands and, more specifically the husband and father of the family Martien Meiland and his mansion: Chateau Meiland. The well-established man adores drinking wine and has a signature outcry to go with this adoration which is "wijnen, wijnen, wijnen". He basically made a verb from the noun
‘wine’, which would be something like “wining, wining, wining’’ in English. The phrase is pronounced in such an inspiring way that even non-alcoholic drinkers will be enthusiastic. Viewers of the television show Chateau Meiland as well as non-viewers: almost everyone in the Netherlands recognizes this phrase. If you are curious about what this would look and sound like, click here (Dutch video). Meiland's words, at least the complete sentence "HALF 12, WE GAAN WIJNEN, WIJNEN, WIJNEN" (“It’s 11.30AM, we are going to wining, wining, wining”), have meanwhile been registered by his company as a Benelux trademark.

Meiland's trademark came to the attention due to a broadcast of a Dutch satirical television program ‘Zondag with Lubach’ about the lifestyle platform RUMAG. In an earlier blog I also paid attention to this.

RUMAG is known for its striking texts printed in white letters on a black background with dots.instead.of.spaces.between.words. It
turns out that in many cases these texts were not made up by RUMAG itself, but were copied from English anecdotes circulating on social media.

What is particularly objectionable in this case is that RUMAG prints the quotes in RUMAG-style on its merchandise and sells it in
its webshop. Basically, RUMAG earns money off of someone else's creativity, which is protected by copyright, among other things. In my previous blog, I indicated that RUMAG can most likely be held liable for copyright infringement
with regard to at least part of the texts it has copied (and there are a lot of them).

However, RUMAG does not only copy (possibly) copyrighted texts, but also (parts of) trademarks of others. It has not escaped
RUMAG's attention that the words "wijnen, wijnen, wijnen" are commercially interesting. RUMAG offers clothing and wines in its webshop with the text "WIJNEN.WIJNEN.WIJNEN’’printed on it. Founder and former CEO of RUMAG, Thijs van der Heide, has
indicated himself (video only available in Dutch) that he has copied the words from Meiland. The same text that is now registered as (part of) a trademark. Is that allowed?

Meiland (as owner of the trademark HALF 12, WE GAAN WIJNEN, WIJNEN, WIJNEN) has, among others, the right to prohibit others from using signs that are similar to his trademark. This requires that these signs are used in the course of trade for identical or similar goods and services as those for which Meiland's trademark has been registered. There must also be a likelihood of confusion, which means that the goods or services in question come from the same undertaking or, as the case may be, from economically linked undertakings.

The question arises as to whether the trademarks are similar in such a way that the average consumer is likely to be confused, i.e.
thinks that the clothing actually comes from Meiland, or that there is a cooperation between RUMAG and Meiland. Whether this likelihood of confusion exists depends on the appreciation in a global assessment of several factors, which are interdependent. These factors include the similarity of the signs, which is assessed by whether the trademark and sign are visually similar, refer to a
similar concept, and if pronunciation is similar when said out loud. It is also important whether the goods and services for which the trademark is registered and the sign is used are intended for consumers who are not observant when buying a product (and therefore quickly become confused) or, on the contrary, deem to be careful whilst choosing a certain product. In the case of Meiland and RUMAG it can be very well argued that the trademark and sign are similar in such a way that the consumer would be confused between the two. To add to this, Van der Heide himself said (video only available in Dutch) that the sentence “wijnen,
wijnen, wijnen’’ makes people think of Martien of Chateau Meiland, which is definitely not favorable for RUMAG’s case.

Apart from exploring the boundaries of copyright law, RUMAG is doing the same in trademark law. Incidentally, RUMAG has, for the first time in its five years of existence, been publicly assessed for infringements of someone else's intellectual property rights. On the first of april the news was published (link only available in Dutch) that Dutch Radio DJ Bram Krikke has invoked his trademark rights. He registered the trademark JOEJOE for, among other things, clothing. RUMAG sold clothing with the sign JOEJOE. Since the trademark and sign are identical, in this case it is irrelevant whether there is a likelihood of confusion and Krikke can rely on his
trademark rights. This he has done successfully: RUMAG has stopped selling clothing bearing the sign JOEJOE and the full profit generated by RUMAG are donated to the Red Cross, according to Krikke's manager.

*** After the publishing of this article it became known that RUMAG has quit selling the merchandise bearing the wording WIJNEN. WIJNEN. WIJNEN.