judgment

__________________________________________________________________________ THE HAGUE DISTRICT COURT Commercial Section - provisional relief court case number / cause list no. C/09/450858 / KG ZA 13-1064 Judgment in provisional relief proceedings of 9 October 2013 in the case between 1. BLACK RHINO ENTERPRISES LTD, a company formed under foreign law, having its registered office in Las Vegas, Nevada, United States of America, DANIEL EDWARD AYKROYD, residing in Chilmark, Massachusetts, United States of America, JUDITH BELUSHI PISANO,

2. 3.

residing in Vineyard Haven, Massachusetts, United States of America, claimants, counsel J.P. van den Brink and S.C. van Loon, attorneys-in law practising in Amsterdam; and 1. STARS IN CONCERT VERANSTALTUNG GMBH, a company formed under foreign law, with its registered office in Berlin, Germany, STARS IN CONCERT UK LIMITED, a company formed under foreign law, with its registered office in London, United Kingdom, BERNARD KURZ, residing in Berlin, Germany, TEC ENTERTAINMENT B.V, a private company with limited liability, with its registered office in Amsterdam, GEOFFREY DAHL, residing in West Lorne, Ontario, Canada, CHRIS DAHL,

2.

3. 4.

5. 6.

having no known domicile or residence, defendants,

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counsel: D.E. Stols, attorney-at-law practising in Amsterdam. The parties will hereinafter be referred to as Black Rhino, Aykroyd, Belushi-Pisano (claimants) and SIC Germany, SIC UK, Kurz, TEC, G. Dahl and C. Dahl (defendants). 1. 1.1. The proceedings The course of the proceedings is evidenced by: The summons of 18 September 2013, with 27 exhibits. The deed containing submission of exhibits of the defendants, sent on 23 September 2013, comprising 14 exhibits. The additional exhibits 28 to 34 (incl.) sent by the claimants on 25 September 2013. The additional exhibit 15 sent by the defendants on 27 September 2013. The increase of claim sent by the claimants by fax on 27 September 2013. The additional exhibits 35 and 36 sent by the claimants on 30 September 2013. The breakdown of costs received from both sides. The hearing held on 1 October 2013, at which counsel for both sides submitted their pleadings.

1.2. At the hearing, the defendants filed an objection against the increase of the claim whichas the court understands itwas allegedly submitted too late according to the defendants. Since they have not explained that they were harmed in their defence by the increase of the claim which, in summary means that part of the claims is not only instituted against SIC Germany, SIC UK and Kurz, but also against TEC, and as they have not also made plausible otherwise that this were the case, the provisional relief court finds that the objection is ineffective. Therefore, the increase of the claim is allowed. 1.3. 2. Judgment has been scheduled for today. The facts

2.1. Aykroyd is an actor and comedian who, together with the late Mr. Belushi (hereinafter referred to as: Belushi), during his life the husband of Belushi-Pisano, played the characters of Elwood and Jake Blues since the mid-seventies, jointly referred to as: "The Blues Brothers". The Blues Brothers are singers of blues and soul music whose outward appearance is characterized by a number of fixed elements, such as a black suit, a white shirt, black tie, black sunglasses, big sideburns and a black hat. Some photos of Aykroyd and Belushi as The Blues Brothers are presented below.

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2.2. In 1976, Aykroyd and Belushi performed for the first time on American television as The Blues Brothers, as musical guests on the television program "Saturday Night Live". They subsequently did a few guest appearances on the program between 1976 and 1978. In the late 70s Aykroyd and Belushi released four albums as The Blues Brothers and they performed in the United States with an accompanying band as The Blues Brothers. Their performance of the song "I'm a Soul Man" by Sam and Dave was a hit in 1978. 2.3 In 1980 the movie "The Blues Brothers" was released by Universal Pictures. The script was written by Aykroyd and edited by Dan Aykroyd and John Landis in the late seventies. The copyright of the film script was registered by Black Rhino with the United States Copyright Office in 1979. Aykroyd is director-major shareholder of Black Rhino.

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2.4. A book about the characters was also published in 1980. Belushi - Pisano, the widow and sole heir of Belushi, is the co-author of this book. In addition to this, she has been involved in the marketing of the characters from the beginning. 2.5. In 2000, a sequel to the movie The Blues Brothers was released.

2.6. The claimants produce theatre and music shows around The Blues Brothers themselves and they also issue licenses for these shows. 2.7. Aykroyd and Belushi-Pisano are the holders of the following trademark registrations: The Community word trademark THE BLUES BROTHERS, registered under number 000309286 on 11 September 1998 in Class 9 (including sound recordings and recording equipment) and Class 41 (for entertainment and music services, cabaret services, concert services and song services, among other services). The Community word mark BLUES BROTHERS, registered under number 010717841 on 6 September 2012 in classes 25 (including clothing), 35 (for the promotion of music tours, festivals and artists, including via the Internet) and 43 (including catering services).

2.8. SIC Germany and SIC UK produce and organize musical and theatre performances. Under the name "Stars in Concert", they produce so-called tribute shows, or homages, in which impersonators perform music of various music stars. Some tribute shows are dedicated to one particular group or artist. SIC Germany has its 'own' theatre at the Estrel Convention Centre in Berlin. SIC UK was founded with a view to foreign productions. Kurz is the director of SIC Germany and SIC UK. 2.9 TEC organizes theatre productions in the Netherlands and engages in, among other things, promotional activities and ticket sales. 2.10 The Canadian brothers G. and C. Dahl are actors and performing artists. They perform on tribute shows in which they impersonate The Blues Brothers. Following such a show in the Canadian town of London, an attempt was made to contact G. Dahl on behalf of the claimants in 2009. This resulted in an agreement signed on 13 July 2009 in which in addition to the obligation to pay part of the receipts, the following was laid down (hereinafter referred to as: the Agreement):
"PERFORMANCE AGREEMENT CONTRACT

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This agreement made July 13'h, 2009 for the one-time, non-exclusive, use of the Trademark protected image and look of the musical artists know (sic!) as THE BLUES BROTHERS, JAKE and ELWOOD BLUES for 9 days July 24 , 25 th th 8 , 9 , 2009.
th th,

,26 , July 31 , Aug 1

th

st

st

Aug 2 , and Aug 7 ,

nd

th

These performances will take place at the theatre known as THE LONDON CITY MUSIC THEATRE 900 KING ST LONDON ONTARIO CANADA as part of the musical production I'M A SOULMAN a show developed and produced by brothers Geoff Dahl and Chris Dahl aka Da Blooze Bros, owners of the production company SHOW TOUR INTERNATIONAL. Any future performances by the Dahl Brothers either as the "Blues Brothers" or "Da Blooze Bros." from the date of this agreement on, anywhere in the world or at any venue, must have prior written permission or viable contract first from the John Belushi Estate and NightOwl Productions Inc. Made between: SHOW TOUR INTERNATIONAL/GEOPFREY DAHL (...) ONTARIO CANADA (...) and VICTOR PISANO THE JOHN BELUSHI ESTATE and NightOwl Productions. Inc. (...) MA (...)"

2.11 SIC Germany and SIC UK have announced that they would organize several tribute shows under the name "I'm a Soul Man - a tribute to the Blues Brothers" in the Netherlands (hereinafter referred to as: the Show). This show was also performed earlier in Germany. The announcement can be found on for instance the websites www.stars-in-concert.de and www.stars-in-concert.com.It concerns a performance on 11 October 2013 in the Rabotheater in Hengelo, on 12 and 13 October 2013 at the World Forum Theatre in The Hague, and on 18 and on 20 October 2013 at the RAI Theatre in Amsterdam. 2.12 TEC is the promoter of the Show and rents the theatres and organizes the ticket sales in the Netherlands. TEC has outsourced the ticket sales to third parties who sell the tickets in their own name. TEC is the holder of the domain names thebluesbrothersshow.nl, thebluesbrothersshow.com, and imasoulrnan.nl, which are or were used to attract the public to this performance. The content of the websites is provided by SIC Germany and/or SIC UK. Several screen prints and text passages are shown below. [2 screen prints]

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The first paragraphs of the text under the heading "Cast & Creatives" read as follows.
"I'm a Soul Man - A Tribute to the Blues Brothers" "I'm a Soul Man - A Tribute to the Blues Brothers" is the successful musical comedy show inspired by the style of the "The Blues Brothers" cult movies. The show is full of action, humour and above all, hits such as "Everybody Needs Somebody to Love", "Think", R.E.S.P.E.C.T." and "Soul Man". All of this, performed true to life by the explosive duo Chris and Geoff Dahl, as the reincarnation of Jake and Elwood. Together with a fantastic live band, the swinging Bluettes and even performances of 'Aretha Franklin' and 'Ray Charles', they will bring you a great show full of brilliant hits. A guarantee for a festive evening! Black suit, black hat and black sunglasses, the two Canadian artists, who are also brothers in real life, do not only resemble their idols in every detail, they match the real Blues Brothers like no other in terms of their moves and musical talent. During the two-hour live show, the MultiTalented Dahl brothers convince the public, both vocal and instrumental, with blues, soul , R & B and Rock 'n Roll acts."

This page also contains texts about the artists who perform as Aretha Franklin and Ray Charles and concludes with a heading "Dan Aykroyd", as shown below.

The bottom photo of the screen print shows the Dahl brothers with Aykroyd and is shown enlarged below.

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The text under the heading "Dan Aykroyd" reads as follows. "The Dahl brothers with Blues Brother Dan Aykroyd himself: 'at an after party in Berlin we had
a great time with our hero Dan Aykroyd. It was great to have a drink and a chat with him and we even played some real Blues with him. We can't wait until we see him again at one of our shows in Canada!"

2.13. The website www.imasoulman.nl includes a promotional movie of the earlier German tribute show about The Blues Brothers. 2.14. Kurz is mentioned as the (co) producer and director of the Show on the websites www.stars-in-concert.de and www.imasoulman.nl. 2.15. In an e-mail dated 28 January 2013 from G. Dahl to the current agent of Aykroyd and Belushi-Pisano, G. Dahl asked for permission to perform with his brother as The Blues Brothers for SIC in Europe. In response to that email the agent asked for more information on 31 January 2013. 2.16. On 31 January 2013, G. Dahl also asked the agent for permission for his brother and himself to perform a show at an American casino. 2.17. The agent of Aykroyd and Belushi-Pisano sent a demand letter to two theatres in the Netherlands in respect of the scheduled performance of the Show on 14 July 2013; 2.18 On 18 July 2013, a German lawyer responded to the demand letters to the two theatres on behalf of SIC Germany and SIC UK and reiterated that according to her clients, no infringement of rights was concerned, after she had already indicated this before with regard to a demand letter in connection with shows in Germany.

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2.19 In a letter dated 14 August 2013, the Dutch counsel of Aykroyd and Belushi-Pisano also ordered TEC to cease promoting or offering the Show. On 3 September 2013, a demand letter was sent to G. and C. Dahl and on 5 September 2013 to Kurz. 2.20. TEC subsequently deactivated the domain names thebluesbrothersshow.nl and thebluesbrothersshow.com. On 20 September 2013, the subscriptions to these domain names were terminated by TEC. On the date of the oral hearing, the domain names were in so-called "quarantine", or "on hold", which means that only the holder can reclaim them. In this situation, the cooperation of TEC is, in principle, required to transfer them to a third party. 2.21. The website under the domain name www.imasoulman.nl is still accessible and at the time of the hearing, the information shown under 2.9 was still available there with the exception of the picture and text about Aykroyd and the announcement that the Dahl brothers would be performing as Jake and Elwood Blues. Since recently, the website states that the roles of Jake and Elwood Blues will be played by two other actors on the Show. The photos of the Dahl brothers have not been replaced and are still posted on the website. 2.22. On 3 April 2013, SIC Germany instituted proceedings at the court hearing the case on the merits in which inter alia a declaratory decision is sought that Aykroyd and BelushiPisano and their representative in Germany are not permitted to prohibit the "I'm a Soul Man - a tribute to the Blues Brothers" show. 3. 3.1. I. The dispute After the change of claim, the claimants claim the following: That defendants 1, 2, 3 and 4 be ordered immediately after service of the judgment to be given in these proceedings, to cease and not resume any infringement of the copyright and trademark rights of the claimants and any and all unlawful acts against the claimants, including the production and promotion of "I'm a Soul Man - A Tribute to the Blues Brothers" as defined in this summons, and any other use of the characters "the Blues Brothers" described in this summons in or for any production or performance; That defendants 1,2, 3 and 4 be ordered immediately after service of the judgment to be given in these proceedings, to immediately and definitively cancel any and all scheduled performances of the theatre show "I'm a Soul Man -A Tribute to the Blues Brothers" as defined in this summons, including - but not limited to - the performances at the Rabotheater in Hengelo, at the World Forum in The Hague and at the RAI in Amsterdam on 11, 12, 13, 18 and 20 October 2013;

II.

C/09/450858 / KG ZA 13-1064 9 October 2013

III.

That defendants 1,2, 3 and 4 be ordered immediately after service of the judgment to be given in these proceedings, to notify the venues concerned of the cancellation referred to under 11 in writing, with simultaneous transmission of a copy of such notification to the counsel of the claimants; That defendants 1 to 4 (incl.) be ordered immediately after service of the judgment to be given in these proceedings to cease and not resume the ticket sales for the theatre show "I'm a Soul Man - A Tribute to the Blues Brothers" and to notify any third parties who carry out the ticket sales on behalf of the defendants that the sales are to be ceased immediately; That defendants 1 to 4 (incl.) be ordered immediately after service of the judgment to be given in these proceedings to cease and not resume any and all promotional activities regarding the theatre show "I'm a Soul Man - A Tribute to the Blues Brothers" as defined in this summons, including the mentioning and promotion thereof on the websites www.stars-in-concert.de, www.stars-inconcert.com, www.imasoulman.nl , and any other website; That defendant 4 be ordered within 72 hours after service of the judgment to be given in these proceedings to transfer the domain names thebluesbrothersshow.com and thebluesbrothersshow.nl to the claimants in compliance with the applicable SIDN rules and to determine that if defendant 4 fails to comply with this order, the decision to be given in these proceedings can take the place of a declaration of intent under Book 3 Section 300 of the Dutch Civil Code to instruct its internet provider and SIDN and/or the relevant authority for the .com domain, to transfer these domain names, whereby any possible costs shall be for the account of defendant 4; That defendants 5 and 6 be ordered to fulfil their obligations to the claimants arising from the licence agreement referred to in this summons, especially the obligation to refrain from performing as the characters "the Blues Brothers" described in this summons without the permission of the claimants, and, immediately after service of the judgment to be given in these proceedings, to permanently cancel any and all performances in which the they play "the Blues Brothers" characters as specified in this summons; That defendants 1, 2 and 3 jointly and severally be ordered to pay to the claimants an immediately payable penalty of EUR 50,000 (in words: fifty thousand euros) for each day or part of a day that defendants 1, 2 and/or 3 act contrary to the orders under I, II, III, IV and/or under IV;

IV.

V.

VI.

VII.

VIII.

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IX.

That defendant 4 be ordered to pay to the claimants an immediately payable penalty of EUR 25,000 (in words: twenty five thousand Euros) for each day or part of a day the defendant acts contrary to the orders under IV, V and/or under VI; That defendants 5 and 6 each jointly and severally be ordered to pay to the claimants an immediately payable penalty of EUR 10,000 (in words: ten thousand Euros) for each day or part of a day that defendant 5 and/or 6 acts contrary to the order under VII; and that the defendants jointly and severally be ordered to pay the actual costs of these proceedings under Article 1019h of the Dutch Code of Civil procedure;

X.

XI.

all this provisionally enforceable and with determination of the period referred to in Article 1019i of the Dutch Code of Civil Procedure and Article 50(5) of the Agreement regarding Trade- Related Aspects of Intellectual Property Rights (TRIPs ) at six months after the date of this judgment. 3.2. The basis for the claims of the claimants is that the (proposed) versions of the theatre show "I'm a Soul Man - A Tribute to the Blues Brothers" and its promotional activities are published without the consent of the claimants, are copyrighted works, namely (i) the characters Jake and Elwood Blues and (ii) the script of the movie "The Blues Brothers", and that this infringes the trademark rights of the claimants. Furthermore, the claimants allege that also in view of a (license) agreement with some of the defendants, default and (other) unlawful acts against the claimants are concerned because the benefit from the alleged breach. Finally, the claimants put forward that the theatre show and the promotional materials infringe the portrait rights of Aykroyd and Belushi. 3.3. The defendants put forward a reasoned defence. To the extent relevant, the positions of the parties will be further discussed below. 4. The assessment

Competence 4.1. To the extent that the claims are based on Community trademarks, the provisional relief judge of this court is competent to take cognizance thereof under Articles 94(2b) , 95(1) opening words and (a), 96 and 97 (1,4b) of Regulation (EC) No. 207/2009 of the Council of 26 February 2009 on the Community trademark (hereinafter referred to as: CTMR) in conjunction with Article 3 of the EC Regulation on the Community Trade Mark (Implementation) Act since SIC Germany, SIC UK and Kurz have voluntarily appeared

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without challenging the court's competence and TEC is established in the Netherlands . Insofar as the claims are based on the alleged (imminent) copyright infringement and the alleged unlawful acts, the competence regarding SIC Germany, SIC UK and Kurz is based on Article 5(3) of Regulation (EC) No 44/ 2001 of the Council of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Regulation), since these defendants are domiciled or resident in Germany and the United Kingdom, and the alleged infringement and wrongful acts occur in the Netherlands, including in the Hague, and also via the internet throughout the Netherlands and therefore also occur in the district of The Hague or are likely to occur there. The provisional relief court is competent to take cognizance of the claims against the alleged (imminent) copyright infringement and wrongful acts by TEC under Article 102 of the Dutch Code of Civil Procedure. Thus far the court's competence has not been contested. 4.2. Regarding the competence to take cognizance of the claims against the brothers G. and C. Dahl, the defendants have argued that the Dutch court has no jurisdiction because those claims are based on an agreement between American and Canadian parties and that compliance should be claimed before the Canadian courts. The provisional relief court puts first and foremost that the claims against G. and C. Dahl provide provisional relief aimed at the Netherlands, namely no performance of the show in the Netherlands without the permission of the claimants. Whatever the competence of a court in the Netherlands in proceedings on the merits of the case with regard to compliance with the agreement, this provisional relief court is competent to take cognizance of the claims against G. and C. Dahl under Article 13 of the Dutch Code of Civil Procedure. Urgent interest 4.3. The urgent interest of the claimants - which, incidentally is not contested by the defendants - of the claims lies in the alleged constant (threat of) infringement, wrongful acts and/or non-compliance with an agreement. Copyright - Applicable law 4.4. In these provisional relief proceedings the claimants invoke copyright protection in the Netherlands. Under Article 5 of the Bern Convention (hereinafter referred to as: BC), authors of BC protected works in each affiliated country of the Convention have the rights accorded to its own nationals. Whether a copyrighted work and infringement of that copyright are

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concerned should therefore be judged under the laws of the country where protection is sought, the lex loci protectionis, therefore, in this case Dutch law."1 - Film script copyright 4.5. The claims of the claimants are based on the copyright in the script of the movie "The Blues Brothers". They argue that in view of the communication on the website www.imasoulmnan.nl and the promotional video of the earlier German show on the website, all the indications are that scenes from the movie will be re-enacted during the show. That scenes will be re-enacted is also shown by the fact that it says on the website that the performers are "on a mission from God", a statement that often occurs in the movie and that Aretha Franklin, James Brown and Ray Charles will also appear, who also play a role in the movie. According to the claimants, the promotional film contains a scene with Aretha Franklin that corresponds to the scene from the movie in which Aretha Franklin plays a waitress,. The claimants therefore claim that the film script will be published in violation of the claimants' copyrights. Insofar as the claimants themselves are not entitled to such script, they are entitled, based on submitted agreements with the producer of the movie, Universal Pictures and the director John Landis, to maintain and invoke these rights, according to the claimants. 4.6. The provisional relief court understands from the statements of the defendants that they contest that the claimants have sufficient rights to claim enforcement of copyright in the script. The claimants point out that neither the script nor the movie have been submitted as evidence to the court. They also contest that scenes will be re-enacted, or dialogues, narratives or other recognizable parts can be watched. Only the most famous songs from the movie will be sung. Unlike the previous performances in Berlin, no large screen will be used. However, the artists who look like Aretha Franklin and Ray Charles will be present, but the artist who plays Aretha Franklin will not be dressed in an apron as she does in the movie, but in a beautiful dress. 4.7. Whatever the authority to enforce the copyright associated with the script of the movie "The Blues Brothers", according to the provisional opinion of the court, the claimants, whose claims are based on the copyright in the script of the movie, have not sufficiently substantiated their claims in view of the defence of the defendants, and as a consequence the claims cannot be awarded for that reason alone. Without being able to take cognizance of the work or works for which copyright protection is invoked, the provisional relief court is unable to give a (provisional) judgment regarding the alleged infringement the Show, as announced, would constitute in regard to the script. The few stills from the movie contained

Cf. Appeal Court in The Hague 20 September 2007, LIN BY0896, IER 2010/35 and Appeal Court in The Hague 22 January 2013,

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in the above documents submitted to the court are in any case insufficient. Moreover, the provisional relief court has insufficient material with regard to the Show as it will be performed in the Netherlands to assess the alleged threat of an infringement, whereas the infringement, given the statements of the claimants has been contested stating reasons. Copyright on characters

4.8 The claimants argue that The Blues Brothers duo, consisting of the fictitious characters Jake and Elwood Blues, can be classified as copyright-protected works and that the defendants infringe that copyright by bringing these characters into the public domain through the Show and websites without the permission of the claimants. The elements listed below are protected by the copyright separately and in combination (in one or other of the various combinations of the elements a-f, listed below): a) musical duo; b) the musicians are brothers; c) the duo uses the name the Blues Brothers d) the characters names are Jake and Elwood Blues; e) the repertoire is blues and soul music, including the number Im a Soul Man; f) the characters wear a black suit, white shirt, black tie, white socks, black shoes and black sunglasses; g) the characters wear black pigskin hats; h) the characters sport prominent sideburns; i) Jake is short and thick-set, Elwood is taller and slimmer; j) Jake is the lead singer, Elwood does predominantly the accompaniment and makes the distinctive dance moves; k) Elwood carries a briefcase, containing just one single blues harp, secured to his wrist with handcuffs and a long chain; l) the characters have a fixed performers' order of the songs; m) the characters assume a cool reserved pose (they do not laugh); n) the choreography is characterized by a lot of fast footwork, transition from quiet to wild and apparently uncoordinated dancing, distinctive use of hands and arms. Jake turns cartwheels and does high kicks; o) the characters have their first names tattooed on their fingers; p) the characters have distinctive phrases, including were on a mission from God and were putting the band back together. 4.9 Defendants dispute that The Blues Brother characters are copyright-protected works. First of all, they argue that the characters consist for more than 95% of their own sartorial choice (a dark suit with hat and sunglasses) which is nothing more but the sartorial style used by the blues musicians from the second half of the last century. Other elements are

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mundane or not sufficiently fleshed out, or do not constitute a fixed element of the characters, which, even considered in combination, is insufficient to constitute works. 4.10 The provisional relief court states first of all that in order for a work to be protected within the meaning of the (Netherlands) Copyright Act it is required that the production concerns the authors own intellectual creation reflecting the authors personality and expressing the authors personality through free creative choices on creating that production.2 What is in any event not included is everything that has such a mundane or trivial form that no creative endeavour of any form whatsoever can be indicated. It is not important whether the various elements comprising the works are each separately copyrightprotected or not. What it boils down to is that the combination of elements (whether individually copyright-protected or otherwise) from which the works were created meets the standard referred to above3. 4.11 Furthermore, it may also be possible as a rule for a character as such to meet the works requirements. To that end, it is required that the distinctive features of that character, at least the combination of the distinctive features of the character as bestowed by its author, meet the standard as referred to above. For instance, after it had stated that copyright protection should not be too readily assumed, the Amsterdam Court of Appeal found that the Bassie and Adriaan [Dutch clowns] characters constituted copy-right protected works as these characters have a consistent distinctive appearance that was described in the judgment4. 4.12 It is the provisional judgment of this provisional relief court that the Jake and Elwood Blues characters, as known as The Blues Brothers, are not copyright-protected works for the reasons as stated below. 4.13 The claimants did not contest that the appearance of Jake and Elwood Blues, namely a duo wearing a black suit, with a white shirt, black tie, white socks, black shoes, black sunglasses, black pigskin hats and sideburns (elements f, g, and h) are similar to the dress style of a number of blues legends form the 1950s, such as Reverend Gary Davis and John
2

ECJ 16 July 2009, C-5/08, LJN BJ3749, NJ 2011, 288 with commentary from P.B. Hugenholtz (Infopaq-I); CJEU 22 December 2010, C-393/09, LJN BP0405 (Softwarov); CJEU 4 October 2011, C403/08 and C-429/08 (Premier League); CJEU 1 December 2011, C-145/10 (Eva-Marie Painer v. Standard Verlag GmbH et al.). The terminology used in the CJEU judgments that are derived from article 1.3 of the Council Directive 91/250/EEC on legal protection of computer programs are in essence the same as the terminology used by the Dutch Supreme Court in HR 30 May 2008, LJN BC2153 (Endstra tapes). For a more recent judgment, see the Dutch Supreme Court of 22 February 2013, Stokke H3 Products, LJN BY 1529. 3 Cf. Dutch Supreme Court of 22 February 2013, Stokke H3 Products, LJN BY 1529. 4 Amsterdam Court of Appeal, 30 January 2003, AMI 2003, 9, with commentary from Koelman (Bassie and Adriaan III).

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Lee Hooker. The claimants even stated at the hearing that Aykroyd and Belushi were inspired for The Blues Brother by the performers of the so-called hipster style of Electric Blues performers from Chicago. 4.14 On the basis of these style features that form undeniably an important part of the characters appearance and which were copied by the claimants form previous blues legends, the claimants cannot claim protection by copyright in these provisional relief proceedings. After all, as the Dutch Supreme Court has recently confirmed, the Dutch Copyright Act does not grant exclusive right to a person working on the basis of his own distinctive style. This judgment is based on the idea that copyright protection of abstract forms such as distinctive style features would entail an intolerable restriction on the creative freedom of an author and would therefore act as a brake on cultural developments.5 Element (e) (blues and soul music / song repertoire) is also a distinctive style feature and therefore unprotected. 4.15 Elements (a) musical duo, (b) the musicians are brothers and (j) the casting can be considered to be trivial or mundane so that the elements taken individually are not copyright protected either. It is not disputed that the name of the duo The Blues Brothers and the names Jake and Elwood Blues (elements c and d) can be copyright-protected. However, the claimants do not invoke the names separately but only as part of the characters. 4.16 It is the provisional judgment of this provisional relief court that the claimants, also taking into consideration the defence of the defendants in this regard, failed to flesh out the elements (l), (m) and (n) referred to in 4.8 in sufficient detail to have these elements taken into consideration as part of the characters. Without any further substantiation, the description such as a fixed performers order of the songs or a cool reserved pose and a choreography or dance style described in general terms, citing only one example (the performance of the song Im a Soul Man) for substantiation of that argument and furthermore only presenting a couple of pictures, does not provide the adequate footing needed to determine what these elements mean specifically and whether these elements may be protected by copyright. The defendants put forward the uncontested argument regarding the choreography that a number of steps of The Blues Brothers dancing style, described in general terms (lot of fast footwork, transition from quiet to wild and apparently uncoordinated dancing) also forms part of the blues style imitated in fact by The Blues Brothers themselves. 4.17 The claimants did not dispute that although elements (k) Elwood Blues carries a briefcase secured to his wrist with handcuffs and a long chain, (o) the characters have their
5

HR 29 March 201.3, Stijl, LJN BY8661

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first names tattooed on their fingers and (p) the distinctive phrases appear in the 1980 movie The Blues Brothers, they are not a consistent part of the characters. These elements must therefore also not be taken into consideration in judging the issue whether the characters enjoy protection by copyright. 4.18 By not taking the elements k, l, m, n, o and p into consideration, the provisional relief court finds in this provisional judgment that the remaining elements, also considered in combination with each other, fail to meet the standard formulated above. These elements describe in fact a musical duo, dressed in blues style, performing songs from the blues repertoire. That the name of the duo is The Blues Brothers and that it comprises two brothers bearing the name Jake and Elwood Blues is completely insufficient to find otherwise. 4.19 At this current state of affairs, the questions whether Aykroyd and Belushi-Pisano are persons entitled to the copyright of the characters and whether the copyrights were infringed or ran the risk of being infringedquestions contested by the defendantsdo not require any further discussion. Portrait rights 4.20 In the event that the claims based on copyright were to be denied, the claimants relied on the portrait rights of Aykroyd and Belushi in pursuant of Section 21 together with Section 25a of the (Dutch) Copyright Act together with Book 6 Section 162 of the (Dutch) Civil Code. In view of the above, the provisional relief court has to find judgment on this alternative basis. 4.21 Invoking the portrait rights of Aykroyd and Belushi, the claimants argue that they are allowed to oppose the live performances of G. and C. Dahl as The Blues Brothers in the Shows and the pictures of G. and C. Dahl as The Blues Brothers in online promotional literature. The similar facial features (including the sideburns and where Aykroyd is concerned the, relatively speaking, small and long face and where Belushi is concerned a broad face, where these features are enhanced because these faces are shown together), the characteristic poses (and that one is tall and thin and the other is short and thick-set) and the presence of other identifiable factors (such as distinctive clothes, tattoos on the fingers, the names Jake and Elwood Blues and presenting themselves as brothers) would mean, according to the claimants, that the performances and the pictures of G. and C. Dahl have to be regarded as portraits of Aykroyd and Belushi. The claimants argue that they have a reasonable interest against publication of these portraits (cashing-in on popularity).

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4.22 Defendants dispute that the claimants are able to prohibit the Show or the challenged pictures by invoking the portrait rights. 4.23 Following the announcement of a change in the cast performing as The Blues Brothers in the Show (which had been apparent from the exhibits on the part of the defendants and confirmed at the hearing), Aykroyd and Belushi-Pisano failed to extend the grounds of their claim in the sense that images of these new performers also had to be prohibited. So assessment of this claim regarding the new performers will therefore not be addressed. In contrast, the claimants uncontestably argued to still have an interest in their claim regarding the performers G. and C. Dahl as The Blues Brothers as their pictures can still be seen on the website www.imasoulman,nl and that there is still a risk that they will perform in the Show. 4.24 The provisional relief court states first of all that the portrait right gives persons the right to act, under certain conditions, against the use of a picture of themselves without their permission. What must also be considered that even without similar facial features a portrait can be construed to exist on the presence of other identifiable factors6. 4.25 It is the provisional judgment of this provisional relief court that the appeal on the portrait right must be denied on the basis of the following grounds. 4.26 First of all, the portrait right relates to a portrait or a picture. To answer the question whether there exists a portrait, the technique used is not relevant: a portrait can be made with a pencil, pen, paint brush, clay, and bronze as well as with a photo or film camera.7 A live performance as such does not an image make as it is not recorded in any way whatsoever. A live performance cannot therefore be forbidden on the basis of the portrait right. When asked at the hearing, the claimants confirmed that their claim does have indeed as its purpose to prohibit a live performance and therefore not a prohibition of the publication of a recording of that performance. 4.27 Second, the claimants do not invoke in fact the portrait right of Aykroyd and Belushi but of the characters Jake and Elwood Blues. The arguments they put forward regarding the recognizable features of Aykroyd and Belushi are after all to a large degree the features of Jake and Elwood Blues. There are special circumstances under which the portrait right may be invoked against look-a-likes8. This does not change the fact that the image of that look-alike must represent the portrait of a person. The mere fact that Aykroyd and Belushi would
6 7

The Dutch Supreme Court 2 May 2003, NJ 2004, 80 (Breekijzer) Cf Auteursrecht, naburige rechten en databankrecht (on copyright law, related rights and database law), paragraph 6.2 Spoor, Verkade, Visser, 3rd edition, Kluwer Deventer 2005. 8 Utrecht District Court 24 June 2005, IER 2005, 80, LJN: AT8316 (Gouden Gids/Yellow Bear)

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not only avail themselves of their portrait rights if it concerns their person but also if it concerned their aliases', namely their characters in The Blues Brothers is denied in the provisional judgment.9 4.28 It is the provisional judgment of this provisional relief court that the contested pictures of G. and C. Dahl do not consist of such similar facial features or other identifiable factors that it can be concluded that it is a portrait of the persons Aykroyd and Belushi. The provisional relief court agrees with the defendants that the facial features of G. and C. Dahl are not similar. Furthermore, the defendants were correct when they argued that the Dahl brothers cannot be described by a long shot that of a person with a long and small face and a person with broad face, neither of a tall and slim person opposite a small and thick-set person. The other features referred to by the claimants (such as clothes, sideburns, tattoos on the fingers, etc.) that do indeed appear on the pictures of the Dahl brothers are, however, features of the Jake and Elwood Blues characters and not of Aykroyd and Belushi, so that the provisional relief court will not take this into consideration. 4.29 In view of the above, there does not exist portraits within the meaning of the Dutch Copyright Act that could be forbidden by the claimants, leaving aside the fact whether they would have cause to do so in these circumstances. Trademark law 4.30 The claimants subsequently put forward the argument that SIC Germany, SIC UK, Kurz and TEC infringe their trademark rights within the meaning of among other provisionsarticle 9(1)(b) Community Trademark Regulation. They argue that the defendants use the trademarks as (part of the) title of the Show Im a Soul Man A Tribute to the Blues Brothers and in the promotional literature for the Show with phrases such as Blues Brothers Show and Blues Brothers Concert and in the domain names www.thebluesbrothersshow.nl and www.thebluesbrothersshow.com. By using the trademarks forat least similargoods and services as the goods and services for which these trademarks were registered (direct or indirect) confusion with the public may arise. The public might well think that the Show is produced by the claimants, that there exists a relationship between the claimants and the defendants and/or that the claimants have given permission for the production and performance of the Show. 4.31 The defendants put forward as their argument that the claimants may not rely on the 1988 trademark THE BLUES BROTHERS because this trademark is expired on account of non usus. The claimants have contested this argument with good reason referring to a
9

Cf Dutch Supreme Court 16 January 1970, NJ 1970, 220 (Ja zuster/nee zuster)

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statement they have submitted listing examples of The Blues Brothers live shows licensed by the claimants in various European cities from 2008 to the present day. As defendants merely reacted to this defence with the argument that this list is inadequate, without giving their reasons for it, the provisional relief court sets aside the non usus defence and assumes in this provisional judgment that the aforementioned trademark is valid. The provisional relief court will judge the alleged infringement of the trademark on the basis of both the older THE BLUES BROTHER trademark as well the more recent BLUES BROTHERS trademark (see above in 2.7). 4.32 The defendants do not dispute what the claimants have argued with regard to the use of the sign (the) Blues Brothers in the aforementioned publications, the similarity of these signs with the trademarks, the similarity of the services, neither do they dispute that they infringe these trademarks rights pursuant to article (9)(1)(b) of the Community Trademark Regulation, so that the provisional relief court must proceed from that basis. The defence put forward by the defendants is confined to the argument that the claimants cannot oppose the use of the trademark made by the defendants relying on the exception of article 12(b) of the Community Trademark Convention because this constitute permitted referred trademark use. As the performance of a tribute show is allowable as a rule, the defendants are also allowed to refer, for instance, with a tagline under the title that the show is a tribute to The Blues Brothers. They may also refer to The Blues Bothers in their promotional literature, or so they say. 4.33 It is a holder of a trademark not allowed under article 12, opening words and 12(b) of the Community Trademark Regulation to prohibit a third party from commercially using his sign similar to the trademark to the extent to identify the kind, quality, quantity, destination, value, place of origin, time of production of the goods or performance of the service or other characteristics of the goods or services in so far as it concerns the use in accordance with proper industrial and commercial practices. Under the case law of the Court of Justice of the European Union, this condition of use in accordance with proper industrial and commercial practices essentially means an obligation of loyalty with regard to the justified interests of the trademark holder. In assessing whether this constitutes proper practice, what must be taken into consideration is the degree in which the use of the trademark by the third party is understood by the audience or at least by a significant part of the audience as a reference to the existence of a connection between the goods or services of the third party and the holder of the trademark, as well as the degree in which the third party had to be aware of that. What must also be taken into account in this judgment is the circumstance that it concerns a trademark registered in the Member-State and where protection of that right is requested, which enjoys a certain familiarity from which a third party may derive some benefit to market its goods and services. A general assessment of all the relevant circumstances of the case must be made in this regard.

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4.34 The use of the sign (the) Blues Brothers by the defendants in the designation Im a Soul Man A Tribute to the Blues Brothers is according to the provisional judgment of this provisional relief court not a proper use within the meaning as set out above. Contrary to what the defendants argue, the designation a tribute to the blues Brothers in the contested sign is not only a subtitle but specifically a part of the title. The name of the Show is Im a Soul Man A Tribute to the Blues Brothers. In all the submitted publications the two parts comprising the title are reproduced together, below each other or at the same level. There are some publications in which the part Im a Soul Man is written in larger print than the other part, in some publications the font size of the entire title is the same and in other publications the signs (the) Blues Brothers in the title is printed in contrasting colours or capital letters were used emphasizing that part of the title. It means in this case, therefore, that the defendants used the sign similar to the trademarks as the product name of their show. They offer that show in competition with the shows produced and exploited by the trademark holders themselves using their trademarks. Although the defendants are free to indicate, as they stated, that their show is a tribute to famous blues music (from artists such as Sam and Dave, Ray Charles and Aretha Franklin) mostly familiar to the public in the rendition of the Blues Brothers, it is not necessary to use the sign (the) Blues Brothers in the title of the Show. Use of the sign (the) Blues Brothers in the title of the Show may in the opinion of the provisional relief court create the impression with the relevant audience ( in this case the (possible) theatre goers with an interest in the blues and soul music) that there exists a special relationship between the defendants and the trademark right holders Aykroyd and Belushi-Pisano. The defendants should have been aware of this. In so doing, the defendants act insufficiently loyal in respect to the justified interests of the trademark right holders. What must also be taken into consideration is that although the defendants have contested that the trademarks are known within the meaning of article 9(1)(c) of the Community Trademark Regulation they did not contest that the trademarks do enjoy a certain degree of familiarity from which the defendants could have derived benefit in promoting and exploiting the Show with the title Im a Soul Man a Tribute to the Blues Brothers. 4.35 Even if it were correct, as alleged by the defendants, that the public knows what a tribute is, namely an homage and therefore not the performance of the real artist of flesh and blood, it is our provisional judgment that the use of the word tribute in the title of the Show does not remove the impression that there is a connection with the holder of the trademark. After all, in the shows that the trademark owners allow to be organised (under license), the Blues Brothers are played by other performers than Aykroyd and the late Belushi. The suggestion that there is a connection with the holders of the trademark is strengthened because a picture of Aykroyd with G. and C. Dahl is placed on the website www.imasoulman.nl. That the Dahl brothers mention on their website of a full endorsement

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from Dan Aykroyd and the Belushi estate for their live tribute to the Blues Brothers and the fact that they are officially sanctioned, is not relevant in this context as the claimants did not argue that these defendants are infringing the trademark and it has neither been argued, nor has it become evident that the defendants 1-4 had referred the public to the G. and C. Dahl website. 4.36 The reliance on article 12(b) of the Community Trademark Regulation for the use of the signs Blues Brothers Concert or Blues Brothers Show designating the Show or in the domain names www.thebluesbrothersshow.nl and www.thebluesbrothersshow.com fail for the same reason. 4.37 In so far as the designation (the) Blues Brothers is used in the promotional literature and on the website www.imasoulman.nl to describe the contents of the Show and as designation of the source of inspiration for the Source, the use of the designation Blues Brothers is allowed. This refers to for instance the designations on the website as submitted by the claimants as exhibit 6 (with the exception where Blues Brothers is used in the title of the Show as mentioned above). 4.38 Based on the above, the court provisionally finds that SIC Germany, SIC UK and TEC infringe the trademark rights of the trademark holders Aykroyd and Belushi-Pisano, which infringement they may oppose. It has neither been argued not has it become evident that Kurz personally uses or threatens to use the signs concerned. Performance 4.39 The claimants argue that the brothers G. and C. Dahl were not allowed to perform in the Shows on the basis of the contract (see above in 2.10) without the permission of the claimants. Also on behalf of his brother C. Dahl, G. Dahl did indeed request permission to the agent of the claimants to be allowed to perform as The Blues Brothers for SIC in Europe (see 2.15 above) but the permission referred to had not been granted. Claimants claim performance of the contract. 4.40 G. and C. Dahl put forward the argument that the contract had been concluded under pressure on the part of the agent of the claimants and that the obligation concerned was included by that agent at the last minute and without consultation. However, G. and C. Dahl have never contested the validity of the contract. They have also argued that the contract was only signed by G. Dahl. They did not dispute that he did this also on behalf of C. Dahl as ensues from that contract and that therefore the contract binds them both, so that the provisional relief court has to proceed from this in its provisional judgment.

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4.41 There is no agreement between parties about the question which law applies to the contract. G. and C. Dahl argue that Canadian law applies, the claimants think that American law applies. The contract does not include a stipulation in that regard. Whatever law may govern the contract, what is not in dispute is that the contract must be construed in the sense that the Dahl brothers have the obligation not to perform as The Blues Brother somewhere in the world without prior permission of the claimants. It is not disputed either that this permission with regard to the Show is absent. 4.42 The claimants uncontestably argued that G. and C. Dahl had the intention to play the parts of Jake and Elwood Blues in the Show which was also announced on the website www.imasoulman.nl. Although the names of other actors playing these parts are on the website at the time of the hearing the pictures of G. and C. Dahl could still be found on the website. It has not been contested either that the Dahl brothers did not made an unconditional promise in that regard, so that it is not certain that they will not perform. Therefore, the claimants continue to have an interest with their claim. 4.43 At this state of the proceedings, the claim to demand performance can be allowed to the extent that it concerns the announced shows in the Netherlands. It has not been argued that a relief is required with more extensive scope. To act wrongfully; to benefit from a breach of contract 4.44 The claimants argue that SIC Germany, SIC UK, Kurz and TEC had acted wrongfully in respect of them by intentionally profiting from the breach of contract on the part of G. and C. Dahl who had failed to observe their obligations under the contract as they were aware of the fact that the claimants had demanded performance in that matter. 4.45 The defendants referred to disputed that they acted wrongfully and argued that they had not been aware of the contract when they asked G. and C. Dahl to perform in the Show. 4.46 Whatever may be the case, the arguments put forward by the claimants are found in this preliminary judgment to be insufficient to find that the named parties acted wrongfully. Transacting business with a person while it is known that this person violated a contract he had concluded with a third party as a result of this business transaction is not automatically unlawful in respect to this third party. More is needed to conclude that a wrongful act has been committed. The claimants have not put forward additional circumstances. Claims

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4.47 Based on the above, the claims under copyright will be denied. The order addressed to SIC Germany, SIC UK, Kurz and TEC to cease the (otherwise) wrongful actions in respect to the claimants will also be denied. 4.48 SIC Germany, SIC UK, Kurz and TEC will be ordered to cease with the infringement of the trademark rights of the claimants on condition that this order relates to the use of the sign (the) Blues Brothers in the title of the Show Im a Soul Man a Tribute to the Blues Brothers, in the sign Blues Brothers Concert or Blues Brothers Show designating the Show and the use of the domain names www.thebluesbrothersshow.com and www.thebluesbrothersshow.nl. The injunction will be restricted to the Netherlands. The claimants only argued in their summons that the Shows planned in the Netherlands were infringing their trademarks (on various grounds) and the relief sought did not requested a cross-border injunction. The defendants indicated at the hearing that it was not clear whether these claims also related to other Shows than those in the Netherlands, for instance Germany, after which the claimants confirmed that their claims only related to the Shows planned for the Netherlands. As Black Rhino fails to invoke the trademark rights of which it is the holder, there are no grounds for its claim to cease the trademark infringements and that claim can be dismissed. The penalty to be imposed together with the order will be mitigated and subject to a maximum. Although the increase of the claim does not have as its object a penalty to be imposed with regard to the compliance of the order by TEC, the provisional relief court finds cause on its own motion to impose as well the penalty to ensure compliance on the part of this defendant. The parties referred to will be ordered to cease the trademark infringements within two days following the date of service of this judgment. 4.49 The claims II to and including V, an order to cancel immediately al the intended performances of the theatre show Im a Soul Man a Tribute to the Blues Brothers, to inform the locations were the performance was to take place, to cease with the sale of tickets and to cease with all promotional activities will be denied. In view of what has been stated above and as a trademark infringement injunction will be ordered is in this provisionally judgment no cause to order a relief with a more extensive scope. 4.50 The claims VI that relates to the transfer by TEC of the domain names www.thebluesbrothersshow.com and www.thebluesbrothersshow.nl to the claimants will be awarded. It was discussed at the hearing that for the duration of the quarantine period the domain name holder still has control over the domain name and may, incidentally, withdraw the release. The claimants argued that consequently they continue to have an interest with having the claimed transfer awarded. The penalty to be imposed together with the order will be mitigated and subject to a maximum.

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4.51 The brothers G. and C. Dahl will be ordered to observe their obligations with respect to the claimants arising from the contract, specifically the obligation not to perform as The Blue Brothers in the Netherlands without permission. The penalty to be imposed together with the order will be mitigated and subject to a maximum. In this preliminary judgment there are no grounds to award the claim to have the performances cancelled in which they will act as The Blues Brothers as the claimants had failed to substantiate why such a relief was necessary in addition to the order to be given. Costs of the proceedings 4.52 As in the proceedings between the claimants on the one part and SIC Germany, SIC UK, Kurz and TEC on the other, neither party has succeeded entirely, the provisional relief court finds cause to order that each party will have to pay its own costs. 4.53 In the proceedings between the claimants on the one part and G. and C. Dahl on the other, the latter will be ordered to pay the costs of the proceedings as the party found against. As the claims brought against them were not based on any intellectual property right, there is no room for payment of the costs of the proceedings in accordance with article 1019h of the Dutch Code of Civil Proceedings and the regular court-approved scale of costs will be applied. The court will proceed from the assumption that where necessary the costs of the claimants will be proportionally divided over the proceedings against the six defendants, so that a third of the total costs to be estimated under the court-approved scale of costs must be allocated to the proceedings against the Dahl brothers. The provisional relief court estimate the costs in these proceedings on the part of the claimants to be 272 (1/3 of 816) in attorneys fees, 196,33 (1/3 of 589) in registry fees and 76.71 in cost of service, therefore to the aggregate amount of 545.04. 5. Judgment

The provisional relief court In the proceedings between the claimants on the one part and SIC Germany, SIC UK, Kurz and TEC on the other 5.1 Orders SIC Germany, SIC UK, Kurz and TEC to cease and not to resume, within two days following the date of service of this judgment, each infringement in the Netherlands of the Community word trademarks THE BLUES BROTHERS with number 000309286 and BLUES BROTHERS with number 010717841 of Aykroyd and Belushi-Pisano, consisting of the use of the sign BLUES BROTHERS in the title Im a Soul Man a Tribute to the Blues Brothers, in titles Blues Brothers Show or Blues Brothers Concert in the domain names

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www.thebluesbrothersshow.com and www.thebluesbrothersshow.nl as described in this judgment. 5.2 Orders that SIC Germany, SIC UK, Kurz and TEC will forfeit a penalty to Aykroyd and Belushi-Pisano of 10,000 for each day or part of the day that the defendant concerned fails to comply in full or in part with the order given under 5.1, subject to a maximum of 250,000. 5.3 Orders TEC to transfer the domain names www.thebluesbrothersshow.com and www.thebluesbrothersshow.nl to the claimants within seven days following the date of service of this judgment, and where the domain name of www.thebluesbrothersshow.nl is concerned according to the current rules of SIDN and orders that if TEC fails to comply with this order, this judgment may substitute, in pursuant of Book 3 Article 300 of the Dutch Civil Code, a declaration of intention of TEC to instruct its internet provider and to SIDN, or to the relevant authority for the domain name of www.thebluesbrothersshow.com to transfer these domain names where any costs will be at the expense of TEC. 5.4 Orders that TEC will forfeit a penalty to Aykroyd and Belushi-Pisano of 5,000 for each day or part of the day that it fails to comply in full or in part with the order given under 5.3, subject to a maximum of 50,000. 5.5 Orders that each party will have to pay its own legal costs.

5.6 Orders that the time limit to institute an action in the main proceedings within the meaning of article 1019i of the Dutch Code of Civil Proceedings be set at six months starting on the day following the date of this judgment. 5.7 5.8 Declares this judgment to have immediate effect as far as possible. Denies all other applications.

In the proceedings between the claimants on the one part and G. and C. Dahl on the other 5.9 Orders G. and C. Dahl to observe, within two days following the date of service of this judgment, their obligations in respect to the claimants arising from the contract, namely the obligation not to perform as The Blues Brothers in the Show in the Netherlands without permission of the claimants. 5.10 Orders that G. and C. Dahl will forfeit a penalty of 2,500 for each day or part of the day that the defendant concerned fails to comply in full or in part with the order given under 5.9, subject to a maximum of 100,000.

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5.11 Orders G. and C. Dahl to pay the costs of the proceedings, estimated on the part of the claimants until this judgment to be 545,04 5.12 Declares this judgment to have immediate effect as far as possible. 5.13 Denies all other applications This judgment was given by Justice M.P.M. Loos and pronounced in open court on 9 October 2013 in the presence of the clerk of the court R.P. Soulli. [signature] [signature]