IBMBL112R1 Re-sit Exam

Instructions
Business Law IBMS Regular, year 1, block 1, re-sit exam

Before you start, please read the following instructions carefully.

i)

First verify whether all pages have the correct code: Re-sit Exam
IBMBL112R1 Re-sit Exam. After that, verify whether pages are
missing.

ii)

Illegible/undecipherable answers will not be taken into account, so

writing legibly is a requirement. Use proper English.

iii)

Unless explicitly stated otherwise, the answers to the open questions

always need to be properly supported by argumentation. Take into
account that the argumentation is (usually) far more important than
the actual answer.

iv)

All questions should be answered in accordance with Dutch law

(even if no Dutch parties are involved and even if the scenario takes
place in another country!), unless explicitly stated otherwise.

Good luck!

B. van der Flier, LL.M. & J. Noordegraaf, LL.M. & P. Zonneveld, LL.M.>

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IBMBL112R1 Re-sit Exam

MasterChef Australia [40 pts total]

George Calombaris, Gary Mehigan and Matt Preston are judges of the immensely popular
competitive cooking game show MasterChef Australia since its launch in 2009. MasterChef
Australia is broadcast in more than 30 countries around the world, including the
Netherlands, where the 5th season is currently being broadcast. The current location of the
show is Royal Melbourne Showgrounds, Flemington, Victoria. Since 2012 the show is
produced by Shine Australia.
The format is as follows: the first rounds of each season consist of large numbers of
contestants from across Australia. The contestants have to individually audition by
presenting a food dish. Fifty contestants go through to the so-called semi-finals, where they
compete in several challenges (testing food knowledge and preparation skills) until 24
contestants are left. These 24 contestants progress to the main stage of the show where
they face numerous individual and team-based cooking challenges with (typically) weekly
elimination rounds. At the end of the season, one contestant wins the title MasterChef. He
or she wins chef training from leading professional chefs and has the chance to get a
cookbook published. In addition to the aforesaid, there is an A$ 100,000 reward.
Dutch chef Heston Bloemendaal is so impressed with MasterChef Australias success that he
wants to get a piece of the pie. Heston moves to Australia to start his own version of the
show. Heston changes the title of the show to MasterChef Australia II. The framework of his
version of the show is basically the same as the framework described in paragraph 2 above.
The most notable thing Heston changes is the location of the show, namely Perth instead of
Melbourne.
Perhaps unsurprisingly, Shine Australia is less than pleased with Hestons actions so they
write him a letter clearly stating that he is infringing their intellectual property rights
because the entire concept of Hestons show is too similar to theirs. Heston, however,
replies by stating that he obtained an intellectual property right himself.

A. Which intellectual property right is relevant here? Did Heston indeed obtain an
intellectual property right? Discuss all relevant requirements in detail. [6 pts]
The relevant IPR would be copyright. [0,5 pt] What are the criteria?

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1. A work It is about (the entire concept of) a television show, so it will probably be an
artistic and/or a literary (script) work. [0,5 pt]
2. Tangibility There is probably a written script of the MasterChef Australia II show so then
the idea was expressed and there is tangibility. [1 pt]
3. Own character One could argue that the work is (at the very least) an imitation: the title
is very similar and so is the framework of the entire MasterChef Australia II show.
Therefore, there is no own character. The only real change is the location: this is
insufficient. [2 pt]
4. Personal stamp of the author Two sub-requirements: (creative) human labour and
creative choices. The work is the result of (creative) human labour because Heston is a
natural person. However, it was mainly the creative human labour of George, Gary and
Matt and not Heston. In addition to this, the creative choices are very few. The only
notable change is the change of location, but this is not substantial enough. The
requirement is unlikely to be met. [2 pt]
Because the requirements are not met, there will be no copyright for Heston.

Australian comedian Mick Molloy decides to record an episode of a show called BastardChef
Australia. BastardChef Australia is an imitation created by him to mock MasterChef Australia
in a satiric and ironic way. The logo he uses for the show can be found below, next to the
original logo. The episode turns out to be a huge success, but Shine Australia is not that
amused and wants to claim damages for copyright infringement.

B. What sort of work is the show BastardChef Australia? Is Shine Australias lawsuit likely to
succeed? Explain why or why not. [4 pts]
This is a so-called derivative work in the sense of a parody. A parody is an imitation of a work in an
altered form to achieve a comical effect. Parodies are typically allowed so the lawsuit will
probably not succeed.

Matt, Gary and George are investigating whether they can protect as a brand the
delightful scent of the MasterChef kitchen, which they describe as balsamically fruity with a
slight hint of cinnamon (methyl cinnamate). The judges are even willing (and able) to
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submit an odour sample!

C. Which intellectual property right is relevant here? Would it be possible to successfully

obtain an intellectual property right on that particular scent? Discuss all relevant
requirements in detail. [6 pts]
The relevant intellectual property right would be trade mark. [0,5 pt]
In the Netherlands, but also in England, the three requirements for obtaining a trade mark are:
1. A sign? Yes, a scent would qualify for an olfactory (or: scent) mark. [1,5 pt]
2. Graphical representation? Graphically representing a scent is incredibly difficult after the
Sieckmann case (which was actually about a scent with the above description!). The
Sieckmann criteria will not even be met if you provide the chemical formula, a description
and an odour sample because it would still not be clear, precise, durable, intelligible et
cetera. Graphical representation is likely to fail until there is an international classification
system for scent. [3 pts]
3. Capable of distinguishing? It could be that the scent is distinctive, provided that it is
original. No-one probably tried to trade mark that particular sign for kitchens before. This,
however, is just an assumption. [1 pts]
Conclusion: a trade mark cant be obtained because not all requirements are met.

Hank, a 5th season contestant of MasterChef Australia, is eliminated during the semi-finals
of the contest. He is furious with Matt, Gary and George because he is convinced that his
dish was by far the best dish of the day and that it was, in a more general sense, a dish
worthy of a three Michelin star kitchen. He decides to take revenge by stealing five Global
Classic 10-piece knife block sets. Global knives are fairly expensive, so the total value of the
stolen items is more than A$ 7,200 (approximately 5,000). Hank puts the Global knife
block sets up for sale on eBay using his account TrueMasterChefChampion.

Lisa, a

passionate amateur chef, sees the knife block sets and thinks the price is very reasonable.
She contacts TrueMasterChefChampion via the standard contact form on eBay (where no
private contact details are given) and on the 27th of September, the parties conclude a sales
contract. Lisa just has to collect the knives at a location chosen by Hank: the post office in
the centre of Rotterdam. Hank has dropped off the knives at the agreed upon location,
indicating that a person called Lisa would collect the parcel the next day (the 28 th).

D. Did Lisa acquire ownership? Detailed answer required. [7 pts]

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IBMBL112R1 Re-sit Exam

The relevant method of acquisition is transfer.
1. Valid title? Yes, there is a sales agreement between Lisa and TrueMasterChefChampion.
2. Delivery? Yes, either traditio longa manu or factual transfer of possession.
3. Authority? No, Hank (TrueMasterChefChampion) was not the owner of the knives but the
possessor.
Conclusion: the transfer initially fails due to a lack of authority. However, the transfer could still
succeed if the following requirements are met:
1. Moveable property? Yes, knives are moveable.
2. Delivery of possession? Yes, its either traditio longa manu or factual transfer.
3. Remuneration paid? Yes, its a sales agreement so there must be remuneration.
4. Acquirer acting in good faith? Did Lisa know that something was wrong? No, there is no
indication that she did. Was she reasonably supposed to know something was wrong? Yes,
due to the fact that she buys fairly expensive items from an anonymous person on eBay.
Moreover, they never actually meet each other because the knives are delivered via the
post office. There is, in other words, no good faith. [Different answer is possible if the
answer makes sense and provided the answer is supported by argumentation.]
5. Is the acquirer willing and able to identify the alienator within three years of acquisition?
Shes probably willing to, but shes unable to identify him so the requirement fails.
Final conclusion: the transfer is still invalid because not all requirements are met.

Imagine that Hank sold the knives to Lisa in person and gave her his business card in case
she would like to buy more. Lisa owns a shop (DOK) that sells kitchen utensils. Lisa decides
to sell the knives in her shop and quickly finds a customer, Virginia, who is prepared to buy
the knives for a higher price (A$ 8,000). Virginia is delighted and leaves the shop with the
receipt and several nicely wrapped up boxes of knives.

E. Did Virginia acquire ownership to the knives? Can Shine Australie still revindicate the
knives? Discuss all requirements. [4 pts]
The relevant method of acquisition is transfer.
4. Valid title? Yes, there is a sales agreement between Lisa and Virginia.
5. Delivery? Yes, this would be a factual transfer of possession.
6. Authority? No, Lisa never acquired ownership (see previous question!).
Conclusion: the transfer initially fails due to a lack of authority. However, the transfer could still
succeed if the following requirements are met:
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IBMBL112R1 Re-sit Exam

6. Moveable property? Yes, knives are moveable.
7. Delivery of possession? Yes, factual transfer of possession.
8. Remuneration paid? Yes, Virginia pays A$ 8,000f or the knives.
9. Acquirer acting in good faith? Did Virginia know that something was wrong? No, there is
no indication that she did. Was she reasonably supposed to know something was wrong?
No, because Virginia buys the knives in a shop for a reasonable price. There is, in other
words, good faith.
10. Is the acquirer willing and able to identify the alienator within three years of acquisition?
Yes, one can assume that Virginia is both willing and able to do so.
Final conclusion: the transfer does in principle succeed because all requirements are met.

To check whether Shine Australia can revindicate:

Was it stolen moveable property within three years? Yes, the knives were recently stolen by Hank.
1. Is the acquirer a consumer? Yes, Virginia is a natural person and one can assume that she
buys the knives for herself (not for professional purposes).
2. Does the alienator deal in similar things using business premises? Yes, Lisa typically sells
kitchen utensils and she has a shop (DOK).
3. It doesnt concern money. Yes, it doesnt concern money because it concerns knives.
Conclusion: all requirements are met so the revindication fails. Viriginia remains the new owner.

Regardless of your answer to the prior question, assume for now that Virginia did acquire
ownership of the knives. After Virginia purchased the knives, she stops at Vapiano 1 for a
nice pasta lunch. She chooses a seat, leaves her belongings at her seat and goes to the pasta
station to order a Spaghetti Bolognese. After 15 minutes her dish is finished and she goes
back to her seat. Much to her dismay she cant find her Global knives anymore. Apparently
Roxanne, a waitress at Vapiano, was clearing the table and noticed the knives. Roxannes
thought was that these knives would be very practical for in her own kitchen and given the
fact that someone had abandoned the knives, she could just take them and keep them for
herself.

F. Did Roxanne become owner of the knives? If so, how? If not, when and how could she

Vapiano is a fast casual restaurant with a twist - customers use a "chip card" to personally order their food or drinks from
the bar or from the individual fresh pizza, pasta or salad stations.

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IBMBL112R1 Re-sit Exam

obtain ownership? Explain in detail. [4 pts]

The relevant methods are prescription, finding and occupatio.
1. Occupatio: the knives are not a res nullius. They are moveable but they do clearly belong
to someone, despite the fact that Roxanne thinks that the knives were abandoned.
2. Finding: she could acquire by finding if she reports the find to the authorities, deposits the
items and waits one year (provided the original owner doesnt collect the knives).
3. Prescription: if she doesnt declare the find she is automatically acting in bad faith so she
would qualify for extinctive prescription, which would take 20 years.

Season 4 of MasterChef Australia was won by 23 year old Andy Allen. In that seasons finale,
Allen beat fellow contestant Julia Taylor. His cookbook is titled The Next Element. Andy is
now looking for a publisher and he soon finds one: New Holland Publishers. Andy has to sell
his copyright to New Holland Publishers. Before they want to publish the cookbook, New
Holland Publishers asks Julia Taylor to review Andys book. Julia makes some changes to the
recipes (so they will be less tasty) and she changes the intro of Andys cookbook so that it
focuses more on her achievements and so that it becomes very clear that Andy only won by
being extremely lucky. What she hopes to achieve (in the end) is that people buy her
cookbook instead.

G. Which requirements have to be met in order to successfully sell a copyright? Is there

anything Andy can do now to prevent the cookbook (with Julias additions) from being
published? Explain. [5 pts]
To sell a copyright the regular requirements for transfer have to be met:
1. Valid title
2. Delivery
3. Authority
The only thing that is slightly different is the delivery. Intellectual property rights are delivered by
deed (not necessarily notarial). [2,5 pts] Andy could exercise a moral right, to be more precise: an
integrity right. Julias action mutilate/distort the work and violate Andys honour/reputation.
Moral rights can still be exercised after the intellectual property right is transferred. [2,5 pts]

On the 26th of November 2012 The Next Element was published by New Holland Publishers.
New Holland Publishers wants to sell 500 copies to Dutch bookstore Selexyz. Both parties
meet and come to an agreement for the sale of 500 books for an amount of 10,000. New
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Holland Publishers delivers the books the following week and parties agree on payment two
weeks after delivery. However, after the books are delivered Selexyz is rapidly going
downhill (financially). There is no future perspective to pay the creditors.

H. Which type of insolvency will Selexyz most likely apply for and what is the procedure
for this? What are the consequences for New Holland Publishers? [4 pts]
Selexyz would apply for bankruptcy because there is no future perspective to pay the creditors so
suspension of payment would be rather useless. The procedure is that Selexyz files a bankruptcy
petition at the District Court. The District Court will then appoint one or more trustees who will
handle the liquidation and distribution of assets.
The consequences for NHP are that they, due to the fact that they are an unsecured creditor, will
probably receive nothing or very little.

Comments/feedback regarding this exam:

THE END

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