Witches, white women and magic spells

The product Heks’nkaas (literally translated: witches’ cheese, best described: a herb cream spread for bread) continues occupying the minds in the Dutch IP circles. In 2015 Levola, the producer of Heks’nkaas, started legal proceedings on copyright protection of the spread’s taste. At that time, the preliminary relief judge in The Hague made a remarkable judgement in a seizure order procedure: copyright on taste is not unthinkable. The flush of victory did not last for a long time: a while later the District Court in Gelderland ruled in a different matter that the copyright protection of Heks’nkaas had not been established. Levola’s counterparty in that dispute was the producer of the Witte Wievenkaas (translated: white women cheese). And recently, Levola has been litigating against the producer of Witte Wievenkaas again!

This time not regarding taste, but trademarks. Based on its Benelux word mark HEKSENKAAS, Levola opposed the registration of the trademark WITTE WIEVENKAAS. The Benelux Office for Intellectual Property (BOIP) rejected Levola’s opposition. According to the BOIP there is no likelihood of confusion between Heks’nkaas and Witte Wievenkaas. Not entirely unexpected, Levola did not share this view. It filed an appeal before the Court of Appeals of The Hague. The result is an interesting ruling.

Other than the BOIP, the Court finds that there is a likelihood of confusion. Why? According to the Court, the conceptual similarity compensates the low degree of visual and aural similarity. The Court’s motivation is worth quoting:

“that the term/word ‘witches’ in the Benelux is generally understood as female magical creatures who possess magic powers which they mainly use for evil purposes and who instill fear and live isolated”

and that

“also white women [witte wieven] are seen by a part of the public as mostly isolated living female magic creatures with mainly evil intentions, that instill fear and thus as a sort of witches”.

So, because both the terms witch and white woman refer to supernatural magical creatures with a negative connotation, there is conceptual similarity which, moreover, compensates the low degree of visual and aural similarity. Witchcraft!

But who is familiar with the meaning of the term ‘white women’ in the year 2017? The Court finds the answer to that question irrelevant for the appreciation of the conceptual similarity. It is not necessary that the whole relevant public knows the meaning; it is sufficient that a substantial part does. The average consumer will at least understand that the term white women refers to fictional female creatures and has a negative connotation, just as the term witch.

I am not sure I agree with the Court’s relative appreciation of the conceptual similarity in this case (i.e. of such weight that the low visual and aural similarity are compensated). Tastes differ, but I would say there is a fair chance that the Court has been led too much by magic spells.

Tamilla Abdul-Aliyeva