Prohibited hyperlink to Britt Dekker - Internet and copyrights

Britt Dekker, a Dutch celebrity, was photographed by Playboy in 2011 for their Christmas Special. Two weeks later website GeenStijl received an anonymous tip (using an alias) that the pictures can be seen on the internet. A day later GeenStijl publishes a link to Britt Dekker’s photograph. Sanoma, the publisher that works for Playboy, immediately send a cease and desist letter to GeenStijl. GeenStijl does not respond to this, but because of all the media attention this generated the photos are now all over the internet.

In the court case that follows everything centers around the question whether or not placing a hyperlink to secret information on the internet is an infringement (a non-admissible form of publication). The court states that the internet is a free, open and readily accessible communication network. Whoever publishes something first on the internet (in a way that is accessible), publishes according to the Copyright Act. Placing a hyperlink can therefore be seen as a footnote in a book, referring to works that have already been published. Because the photos have been put on the internet by a third party, the third party is infringing and not GeenStijl.

GeenStijl, however, is not without fault, because they knew that the prior publication of the photos was illegal. Someone under an alias had sent the link, and Sanoma pointed this out to GeenStijl. Without the messages and links of GeenStijl, the consumer would not have been able to find the photos. Placing hyperlinks and messages is therefore in this case illegal. Invoking a claim on freedom of speech does not provide an answer for GeenStijl. The hyperlink was used solely to satisfy the curiosity of consumers and not to discuss any opinion. Hyperlinks themselves are not the problem, but depending on the context their use may be.

portrait rights

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Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?