Dutch Symphony Orchestra loses lawsuit and name

We already wrote about  the name change of the Orchestra of the East into the Netherlands Symphony Orchestra (NedSym). The Netherlands Philharmonic Orchestra (NedPho) was not amused and felt that the Enschede-based orchestra was infringing its trademark and trademark rights and demanded that the orchestra choose a different name. Summary proceedings followed and in April 2012 the court ruled that the Netherlands Symphony Orchestra could only not use the abbreviation NedSO, but did not have to change its name.

End of story.

The Amsterdam orchestra thought otherwise. It was not satisfied with the preliminary ruling and started proceedings on the merits.

And the NedPho won that one today. The NedSym does infringe the trademark and trade rights of the NedPho, so it must now look for another name. It will be given one year to do so. Should the NedSym still use that name at the start of the 2014-2015 season, it will cost one thousand euros per day, with a maximum of one million.

An expensive name, then.

It all revolves around correspondence from 1996, when the Orchestra of the East first wanted to use the name Netherlands Symphony Orchestra. The director of the NedPho sent a fax:

"I learn from the newspaper, that your orchestra (...) is going to tour America (...) It's a pity, I think, that you want to use the name Netherlands Symphony Orchestra for that. It is, of course, suspiciously similar to Netherlands Philharmonic Orchestra, which we are going to tour with."

The Orchestra of the East's response came more than two months later:

"- the name is used exclusively abroad and so these are those sporadic moments in the existence of the Orchestra of the East, when our own name would give the wrong impression.
- the name has been chosen so that no similar name occurs in the Dutch orchestra system. We have therefore taken due account of possible duplication;
- I realise that there are naturally parts in it, which also exist in the names of other orchestras, that is inescapable."

The initial commitment was repeated a year later, and the NedPho left it at that, until the Orchestra of the East started using the 'foreign' name domestically in October 2011.

A deal is a deal, the NedPho believed, and on appeal today it was proven right. The court ruled that the correspondence did not show that it was merely a form of collegial consultation, not aimed at making binding agreements.

One can, of course, wonder to what extent agreements from 1996 and 1997 still apply more than a decade later in a totally changed orchestra system, but the Amsterdam court is clear: pacta sunt servanda, and ordered NedSym to pay the legal and lawyer's fees and the aforementioned penalty.

All in all, a costly name change. And from a marketing perspective, changing your name twice in three years is, of course, also a disaster.And all this while the new name, especially abroad, is becoming increasingly well-known, as evidenced by, among other things, a recent tour to China and jubilant CD recordings in international magazines.

To be continued, therefore, once again, as NedSym director Harm Mannak is unlikely to leave it at that. After all, appealing in cassation is always a possibility, but that is again a long procedure and the Supreme Court is bound by what has been established in the judgment in terms of facts and will merely look at whether all procedures have been followed correctly. And even then the NedSym will not be there, at most the case will then be referred back to the court and we will be back to square one. But the question is whether the subsidisers (state and province) will allow budget to evaporate through a legal battle.