The Witte Wieven, everyone knows who they are!

The Witte Wieven (“Women in White”)…are mythical creatures. They are thought to be the spirits of wise female herbalists that remained on earth. They appear in epic stories, sometimes to help, sometimes to hinder. … the Witte Wieven are often referred to in connection with witches and ghosts.’ This is what the English version of Wikipedia has to say about ‘witte wieven. What percentage of the relevant public knows who the witte wieven are and how do you prove it? This question was submitted to the Netherlands Supreme Court in a dispute relating to Heksenkaas (‘witches cheese’) and Witte Wievenkaas, respectively (both cream cheese products). The Hague Court of Appeal assumed that a substantial percentage of the public is familiar with the meaning of the term ‘witte wieven’. And someone who is not familiar with that term, the Court of Appeal found, would in any case know that it refers to fictitious female creatures and that it has a negative connotation. This assumption on the Court of Appeal’s part was a step too far for the Supreme Court. The Court of Appeal was not entitled make a finding regarding the public’s familiarity with the term ‘witte wieven’ based on evidence that merely related to the definition of that term. And why would someone unfamiliar with the term ‘witte wieven’ at least be expected know that it refers to fictitious female creatures and has a negative connotation? The case will have to be investigated again, this time by The Hague Court of Appeal.

Should any disagreement arise in the future as to the familiarity of the term ‘gnome’ in the context of a dispute about gnome milk versus dwarf milk, the Supreme Court has provided some guidance regarding the burden of proof. Those who dispute that a large portion of the public understand the term ‘gnome’ need not submit high-level proof of that. The party asserting that a large portion of the public understands the term ‘gnome’ bears the burden of proving that this refers to a goblin or a dwarf.

Mathijs Peijnenburg, paralegal

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