Imagine you’re born in 1976 in the Netherlands, and paid attention in history class. You were raised in a distinctly post-Holocaust era, yet you were very much made aware of the wrongdoings of the Hitler-regime. You have learned to value and respect the symbols of freedom, and to reject the symbols of domination and hatred. Then you would know Anne Frank as a symbol of the oppression and murder of the Jewish people during the war. In short, as a symbol of the Holocaust.
Another 37 years onwards, you see two well-respected foundations engaged in an unsavory battle over the legacy of Anne Frank. One, the Anne Frank Stichting who is the caretaker of the Achterhuis in Amsterdam, the hiding place of the Frank family during the war and the current location of the Anne Frank Museum. The other, the Anne Frank Fonds in Switzerland, who was entrusted by Anne Frank’s father Otto Frank with the copyrights to the diary that his daughter wrote in the Achterhuis. Who should own the intellectual property rights to The Diary of Anne Frank and The Achterhuis? Who can best guard the legacy of Anne Frank, informing audiences the world over of the Holocaust, the lives of Jews in wartime, and the faith of the Frank family? (See my opinion, in Dutch, in Ars Aequi 2013, May Issue, pp. 372-377.)
Who could possibly decide on such questions? The Trademark Office for the Benelux in The Hague recently has had to decide on whether or not those names were to be granted legal status as trademarks. It turned down the applications by the Swiss Anne Frank Foundation, despite having once granted other “Anne Frank-brands” to the Amsterdam’ Anne Frank Foundation legal status, in a time when it was not yet given the policy power to assess the merit of applications. The appeal is due before the Benelux-court this month.
One should not be allowed to claim signs of high symbolic value, such as names and images referring to the Holocaust, as one's own brand. Benelux Trademark Law does not state in so many words however, that there can be no such trademarks. Some entrepreneurs, and foundations, find a (time-limited) monopoly to the commercial use of famous names, portraits, signatures, and book titles hard to resist. Even though none of us are deprived of the possibility to, say, write a blog on Anne Frank once the name is trademarked, (battles over) the monopoly rights are hardly a neutral affair.
No one owns Anne Frank, we all do – yet who we own is different for all of us. Following the perspective I was taught, I own a symbol of the oppression and murder of Jews in wartime-Europe. Others may own a national symbol in Anne Frank, on par with our first royal, William of Orange (1533–1584).
In trademark law someone has to win: one party holds the legal right and is attributed the power to attack ‘trespassers’. This does not work with symbols. The way forward as I see it is to change our trademark law to include a provision aimed at keeping signs of high symbolic value off the register, and creating a ‘white list’ for signs that are to be kept free, a helpful instrument to frame the concept of ‘symbols’.
However difficult creating such a list may sound, everybody can name a few religious, historic, national, or Holocaust symbols. It should be possible to draft a list, to respect and to value, without elapsing into a proclamation of morals.
In the meantime, on the 4th of May, Remembrance Day in the Netherlands, what should the two quarreling foundations do? As Anne Frank notes in her diary, “I think it’s odd that grown-ups quarrel so easily and so often and about such petty matters. Up to now I always thought bickering was just something children did and that they outgrew it.” To outsiders, the solution is obvious: make up, and unite.