Importante victoria legal de Nintendo en Holanda

verdict
COURTS HAGUE

Civil Justice Division


Judgement in joined cases of July 21, 2010

in the case with case number / roll number: 324867 / HA ZA 08-3879 van

1. the legal entity under foreign law
NINTENDO CO. LTD,
established in Kyoto, Japan,
2. the legal entity under foreign law
NINTENDO OF AMERICA INC.,
based in Redmond, Washington, USA,
3. The private company with limited liability
Nintendo Benelux BV,
established in Utrecht,
plaintiffs,
attorney P.J.M. von Schmidt auf Altenstadt, at The Hague,

against

1. [A]
residing at [home]
defendant,
attorney W.P. the Duke, in The Hague,
2. [B]
residing at [home]
defendant,
attorney W.P. the Duke, in The Hague,
3. [C],
residing at [home]
defendant,
attorney W.P. the Duke, in The Hague,
4. [D]
residing at [home]
defendant,
attorney W.P. the Duke, in The Hague,
5. [E]
residing at [home]
defendant,
attorney W.P. the Duke, in The Hague,
6. [F]
residing at [home]
defendant,
lawyer, not now,
7. [G],
residing at [home]
lawyer, not now,
8. The partnership
[H] WEBSHOP,
established in [place]
defendant,
attorney W.P. the Duke, in The Hague,
9. [I]
residing at [home]
defendant,
attorney W.P. the Duke, in The Hague,
10. [J]
residing at [address],
defendant,
attorney W.P. the Duke, in The Hague,
11. [K]
residing at [home]
defendant,
attorney W.P. the Duke, in The Hague,

and in the case with case number / roll number 329266 / HA ZA 09-348 of

1. the legal entity under foreign law
NINTENDO CO. LTD,
established in Kyoto, Japan,
2. the legal entity under foreign law
NINTENDO OF AMERICA INC.,
based in Redmond, Washington, USA,
3. The private company with limited liability
Nintendo Benelux BV,
established in Utrecht,
plaintiffs,
attorney P.J.M. von Schmidt auf Altenstadt, at The Hague,

against

The private company with limited liability
[L] B.V.,
established in [place]
defendant,
attorney C.G.M. Berendsen, Amsterdam.

Plaintiffs in both cases will be described separately below as Nintendo Co., Nintendo of America and Nintendo and Nintendo Benelux and collectively. Defendants 6 and 7 will [F] and [G] are called. 11 defendant is [K] called. Defendants will jointly 1-5 and 8-11 in case 08-3879 are designated as Webshops. Case 09-348 defendant would [L] refers.

Mr. M.E. Wallheimer and Mr. W.Y. Lam, Amsterdam Bar, the case is heard for Nintendo. Mr. D.M. Mr. Linders and M.J. Heerma van Voss, Amsterdam Bar, the case has been considered the merchants. Mr. F.J. Heideman, Amsterdam Bar, the case has been considered [L].

1. The procedure in Case 08-3879

1.1. The course of the proceedings shows:
- The writ of November 13, 2008, and seven indictments of November 14, 2008,
- The presentation instrument works by Nintendo, with exhibits 1-9,
- Of the response, with productions 1-16,
- The interim decision of 11 March 2009, which provides an appearance of the parties,
- The deed produce additional works by Nintendo, with exhibits from 1910 to 1926,
- The act amending the act on the basis of demand also increases in the demand also took on producing works by Nintendo, with exhibits from 1927 to 1932,
- The submission document productions Webshops, with exhibits 17-26,
- The instrument produce additional productions of the online shop, with exhibits from 1927 to 1932,
- The deed produce additional production costs itemized statement from Nintendo, with 33 production,
- The submission document production costs of the online shop, with 33 production,
- The cost statements of Mr. D.M. Mr. Linders and M.J. Heerma van Voss,
- The appearance of the minutes of October 2, 2009, which annexed the pleanotes parties.

1.2. At the hearing of October 2, 2009 has Mr. Den Hertog is withdrawn as counsel for [F] [G].

1.3. Sentence was specified date.

2. The procedure in case 09-348

2.1. The course of the proceedings shows:
- The writ of December 19, 2008,
- The submission document productions, with exhibits 1-6,
- The conclusion of the incident response to join the [L]
- The interim decision of April 8, 2009, in which it was joined with Case 08-3879,
- Of the response of [L], with exhibits 1-12,
- The interim decision of July 15, 2009, which provides an appearance of the parties,
- The deed produce additional works by Nintendo, with exhibits from 1910 to 1926,
- The act amending the act on the basis of demand also increases in the demand also took on producing works by Nintendo, with exhibits from 1927 to 1932,
- The deed produce additional production costs itemized list of Nintendo, with 33 production,
- The submission document production costs of [L], with 13 production,
- The appearance of the minutes of October 2, 2009, which annexed the pleanotes Nintendo and pleading notes that lawyers on behalf of the Webshops [L] have proposed and presented.

2.2. At the hearing [L], in agreement with Nintendo, indicated that the store in case 08-3879 submitted works should be considered as part of the file in case 09-348.

2.3. Sentence was specified date.

3. The facts in both cases

3.2. Nintendo Co. is engaged in the development, production and distribution of computer games and game consoles.

3.2. Nintendo Co's products are marketed through various subsidiaries and distributors. Nintendo of America is engaged in the marketing and distribution in the United States. Nintendo Benelux focuses on the marketing and distribution in the Benelux.

3.3. Nintendo Co. is the owner of the below listed Community Figurative on October 1, 2003 under number 3388477 registered for include storage devices (class 9), parts and accessories for video games retail (Class 9), and parts and accessories for games on handheld with LCD screens and game equipment (class 28):

[Image]


This logo is also registered as a Benelux trade mark under number 378 896, on December 30, 1981 after filing to include play equipment for domestic use, games and playthings.

3.4. The consoles from Nintendo can be distinguished in both portable systems, which trades under the name Nintendo DS Lite and Nintendo DS (the DS) and other so-called consoles, which trades under the name Nintendo Wii.

3.5. The Nintendo games are designed solely to Nintendo consoles can be played. Nintendo also has a number of measures taken to ensure that its consoles to play games are only used by him were published. A Nintendo game system performs a program only if it produces a specific code, called the boot code (DS) and copy code (Wii). Only games published by Nintendo contain codes. When making a copy of the code is not copied games. In addition, the port of the DS console designed so that it fits only one card with the specific shape, size and connection points of the game cards that Nintendo DS games her own issues.

3.6. Some defendants will known as flash cards on the market that allow the DS consoles other programs than the Nintendo-published games to perform, including copies of computer games from Nintendo without consent from Nintendo made (the unauthorized copies) . Flash Cards are designed so that they fit into the port of the DS consoles. The flash cards contain a port which are themselves mainstream memory cards can be placed. Via a PC or laptop, programs and other data on the memory card are copied.

3.7. After installing a flash card in a DS game console appears on the top screen of the console to under the 3.3 mark shown.

3.8. In addition brings some of the defendants in Case 08-3879 called modchips on the market. Modchips are semiconductor chips that allow other programs than the Nintendo-published games to run on the Wii console, including unauthorized copies of those games.

3.9. A modchip is only after disassembly of the console installed. Retailers to regularly provide themselves with the modchips to install on the console or consoles to offer that already has a modchip installed.

3.10. Several consignments by Customs in modchips and / or flash cards stopped. [L] and Defendants 1, 2, 8 and 9 in Case 08-3879, the consignee and owner of one or more of these items. Nintendo to release attachment to the products produced.


4. The dispute in both cases

4.1. Nintendo claims - summary - a ban on the marketing of modchips and flash cards, and marketing of circumvention devices converted with Nintendo products and provision of services involving the conversion of Nintendo consoles with circumvention devices. In addition, it seeks a declaration of information on trade in modchips and flash cards, destruction still in circulation modchips and flash cards, publication of a notice issued by the customs stopped parties flashcards, compensation and profit-transfer to make to state and Costs orders under Article 1019h of the Code of Civil Procedure (hereinafter Rv).

4.2. Its claims made Nintendo the basis that the marketing of modchips and flash cards in violation of Article 29a and Article 32a of the Copyright Act (hereinafter Aw) and otherwise unlawful towards her because modchips and flash cards exclusively or almost exclusively used for playing unauthorized copies of its games. In addition, Nintendo argues that defendants infringed its trade mark rights because the defendants traded flashcards File a Nintendo logo is out there for use in DS for Nintendo makes a mark visible. In the summons, Nintendo had also argued that defendants are in breach of its copyright on the boot code. This basis, it withdrew in appearance.

4.3. Defendants conduct defense. The statements of the parties is below, where relevant, in more detail.

5. The assessment in both cases

jurisdiction and powers

5.1. As for the alleged wrongful act follows the jurisdiction of the Dutch courts and the local jurisdiction of this court already from the fact that they are not contested (Article 24 Brussels I Regulation, and Art. 110 Rv). Where the claims are based on the proposition that defendants infringe the Community trade mark, the Dutch court jurisdiction pursuant to Article 97 paragraph 1 GMVo as defendants in the Netherlands or established, and this court exclusive jurisdiction pursuant to Article 96 chapeau and under a GMVo and Article 3 Implementation of the Community Trademark. The alleged infringement of Benelux trademark is attached to the above principles. Therefore, these eight courts were also empowered to hear that part of the dispute.

[F] [G]

5.2. The appearance has to Mr. Duke has withdrawn as counsel for [F] [G]. This implies that what is argued in court by counsel for the Webshops can not be considered on behalf [F] [G] forward to be charged. That is, apart from the sentencing proceedings, does not affect the decision because, as will be seen, by the appearance in Webshops raised defenses can not produce a different outcome of the case.

bootcode

5.3. In the middle to continue or the defendants traded flashcards a boot code, such as Nintendo claims and Defendants expressly deny. The alleged boot code is not the only means by which defendants in Nintendo's copyright security bypass. Nintendo has also stressed the interconnection design of the DS console and game cards and the need for the code to copy a game to play on the Wii console. As will be explained, the trade flashcards and modchips contrary to article 29a Aw because its products above security measures are bypassed.

Rule 29a and / or Article 32a Aw

5.4. Not in dispute is that the games of Nintendo elements carry both computer programs (works referred to in Article 10, first paragraph, below 12 ° Aw), other copyrighted work, such as the storylines of the games, the design of the characters, backgrounds and resource, and the texts used in the games, music and sound effects (the design). In the middle to continue or group means that both Article 29a and Article 32a Aw Aw applies to those games (position of Nintendo) or that must be chosen from one of these regimes (position of defendants). In both cases, article 29a Aw apply, because if elected, you should be assessed under Article 29a Aw because in the games design predominates.

5.5. In this regard, the court first that a choice between the regime of article 29a Aw and the regime of article 32a Aw decisive should have that element of the game in copyright sense prevails. The element that dominates in copyright terms, the component in making the game the most creative efforts of the author has taken.

5.6. Send entry to the above criteria must be considered that in the Nintendo games from Nintendo dominates the design element. Nintendo has detailed and unchallenged fact put out that designing a game a long creative process in which the design is paramount. In the first phase, the basic concept of the game developed. This stage deals with the design guidelines for the design of the game, as the game concept, the storyline, the characters, the basic layout of the worlds, backgrounds and tools. In the second creative phase, the basic concept further. Also this phase only the design of the game. Thus, the different positions, postures, facial expressions and manifestations of the characters are designed on paper or digitally. The same applies to other visual and audio components of the game, like the image to appear in texts, worlds, backgrounds and tools. The music and sound effects from the game at this stage, composed and recorded digitally or on paper. In the third phase the content and the course of the story shaped by means of merging the various components. Thus the movements of the characters, their interactions and choreographed the scenes in conjunction with the various worlds, the music and sound effects. In addition, this phase the software written. Software that ensures that the game can be played and controlled. The creative choices regarding the software are made are thus serving as the game than has already been designed, and his subordinate.

5.7. Nintendo's defense that the defendants played in her own subpoena "video game software" has, may not lead to a different result. Nintendo has since taken the position that its games can be classified as both a computer (a work referred to in Article 10, first paragraph, under 12 ° Aw), as a work within the meaning of article 29a Aw. The fact that its games software calls can not be inferred that it acknowledges that the element in its computer games dominate. Furthermore, Nintendo has explicitly argued that the audiovisual elements of the game prevail and that therefore the classification of the game and work within the meaning of article 29a Aw appropriate than a computer within the meaning of article 32a Aw.

technical provisions

5.8. The court with Nintendo believes that in paragraph 5.3 that measures with the modchips and flash cards are circumvented, namely the interconnection design of the DS console and game tickets and the need for the copy protection code for a game to play on Wii console, should be regarded as effective technological measures pursuant to Article 29a Aw, that is, as technology, device or component in the normal course of its operation, to prevent or restrict acts in respect of works, by the author or his assigns are prohibited (Article 29a paragraph 1 Copyright Act). For it is technical features that make unauthorized copies of Nintendo games from virtually unusable. The purpose and effect of the measures is that they prevent unauthorized copies of games are made, at least that the number of unauthorized copies considerably. That the measures are effective, is not in dispute.

5.9. The defense that the defendants circumvented measures unrelated to the computer to have been unfounded. Defendants point out in this connection that bypassed measures access to games consoles from Nintendo limit. That measures to restrict access to games consoles, is not in dispute, but that fact does not prevent the action of the Nintendo games against making unauthorized copies. The measures are to be regarded in conjunction with the fact that the Nintendo games specifically designed for consoles from Nintendo and therefore only useful on those consoles. Because of the interdependence of consoles and games from Nintendo can regulate access to its video game consoles make unauthorized copies of its games actually unusable. The measures have circumvented this way is indeed a protected action in relation to the games from Nintendo.

5.10. The arguments of the Webshops and [L] that the measures do not circumvented technological measures under Article 29a Copyright Act because they create a form of access control beyond pursuant to the exercise of copyright would be possible, is of no effect . In itself is true that the measures go beyond bypassed under copyright would be possible. The measures not only prevent unauthorized copies of games from Nintendo, but third-party software. The definition of technical provision in Article 29a paragraph 1 Aw is not that a technical provision may have no other effect than to protect copyright relevant acts. The definition requires only that the provisions designed to prevent or limit the copyright relevant acts. As noted above, the compliance measures taken by Nintendo that requirement.

5.11. Comparison shopping sites, and the [L] in this context referring to House documents with the security situation lawful use of a work obstacle is not valid. With modchips and flash card circumvented measures impede access to copies of games from Nintendo with its consent are made, precisely in any way. Moreover, bypassing the legitimate use of measures that impede the work is generally more limited commercial purpose and usefulness.

5.12. On top of that the defendants advocated restrictive interpretation of the term technical provision would not be tolerated in Article 29a paragraph 3 Aw. From that provision that the correct application of the prohibition is not limited to resources aimed at circumventing technological measures that copyright only a protective effect. The text of that provision, the prohibition also applies if the funds traded a purpose or use other than to circumvent the protection operation of technical equipment. This includes the opinion of the court not only means a different function than the circumvention of technological measures, but also means that circumvent technological measures that also have a different effect than providing protection against copyright-relevant acts. Only when these other effects of technical provisions a more than limited commercial value, and the circumvention of technological measures to ensure that other functions is a more than limited commercially significant purpose or use is intended, are the means outside the scope of the prohibition .

usefulness of the alternative functions

5.13. If that is not sufficiently refuted by the defendants traded flashcards and modchips only a limited commercial usefulness other than to circumvent the protected operation of facilities used by Nintendo.
Nintendo has claimed that the defendants traded products are almost exclusively used for the playing of unauthorized copies. This assertion is supported by many statements of manufacturers, suppliers and users of those products that Nintendo has presented which show that application (works from Nintendo 19-24). Defendants have brought here only argue that they market products other applications of game consoles from Nintendo permit, known as playing homebrew games from third parties, playing music, surfing, photography and whistles. They argue that their modchips and flash cards "widely" used for these alternative purposes, but the webshop and [L] to ask the court can not specify how large the scale of that use and have the statement is not supported . That the products actually on a large scale for such alternative purposes, in the light of the foregoing is not acceptable, bearing in mind the fact that the game consoles from Nintendo specifically designed for playing Nintendo games, not the - outside the context of a game - play music files, internet, photography and whistles.

[K]

5.14. The foregoing does not apply to the [K] traded products. If it is established without contradiction that the traded products are not unauthorized copies of Nintendo games can be played. Given the scope of article 29a Aw, that prevent or restrict acts in respect of works by the author or his assigns are not permitted, can not be argued that the [K] products marketed thereunder. For the same reason, the appeal of Nintendo aground on article 32a Aw (if already applicable in respect of computer games from Nintendo) and its application to wrongful acts in general.

abuse dominant

5.15. Defendants argue that Nintendo competition in the market for games and applications for its game console entirely excludes and that Nintendo so abuse would create a dominant position under Article 102 of the Treaty on the operation of the European Union (formerly Art. 1982 EC Treaty). Leaving aside whether this argument may affect the illegality of trading modchips and flash cards, find the ground-target because it is not supported by the facts. Nintendo has, without being contradicted others argued that it granted licenses for games and applications for its computer game development. Having them fall without further explanation, that is missing, not to see that Nintendo's abuse of a dominant position.

abuse of rights

5.16. In light of the above can not be argued that Nintendo's abuse of its powers under Article 3:13 BW, where defendants have also provided regarding the use of Article 29a Copyright Act to implement. The fact that defendants are not themselves infringe the copyrights of Nintendo and that they market products can also be used for other purposes, can not lead to a different assessment. It is undisputed that the defendants traded funds almost exclusively used to circumvent the facilities Nintendo has taken to infringements of copyright combat. Already it may be considering action against defendants Nintendo does not qualify as abuse of rights.

Claims

5.17. Based on the foregoing that the claimed wrongful conduct by prohibiting the marketing of modchips and flash cards are eligible for allocation in the following manner against all defendants except [K]. The ban would not cover "for Nintendo products to use circumvention devices" in general as claimed nor shown that defendants products other than flash cards and / or sell modchips. The ban will be in respect of all defendants in Case 08-3879 both trading flashcards and modchips include trade because it is undisputed that all the defendants at least one of which market the products, and marketing of one product that a threat based on the defendant also will sell other products. Regarding [L] will concern only the ban on trade in flash cards, because in that case only a Nintendo ban on flash cards has advanced. The terminology of prohibition sought on points will be adjusted to better align with Article 29a Copyright Act. In addition, the claims are dismissed insofar as these relate to the products to be marketed. Claimed nor shown is that defendants outsource marketing.

5.18. Defendants have not disputed that if the trade is illegal modchips, including trade in Wii consoles with modchips have been converted and the provision of (installation) services for modchips illegal. Even those parts of the claims are therefore eligible for award.

5.19. The prohibition will be subject to a penalty will be measured and maximized.

5.20. The advanced delivery to destroy the modchips and flash cards will be allocated. Article 28 paragraph 7 Aw Nintendo gives explicit authority to issue and disposal of products referred to in article 29a Aw demanding. Unlike defendants have submitted, use that discretion in this case is not disproportionate, given that the modchips and flash cards are used almost exclusively for playing unauthorized copies of Nintendo games.

5.21. The other side claims, that the disclosure of origin and distribution channels, the publication of information about the verdict and the remittance of profits, should be rejected as inadequate. As defendants have rightly pointed out the specific legal rules for these ancillary claims, such as Articles 27 and 28 and Articles 2.21 and Aw 2.22 BCIP not apply to breaches of article 29a Aw. That in itself does not exclude that some ancillary claims under certain circumstances can be allocated in the form of an order to fulfill a legal obligation under Article 3:296 BW or compensation other than cash within the meaning of Article 6:103 BW . Defendants have expressly denied that the motivation and ancillary claims in this case are assignable. Taking them on the road had the Nintendo situated at least clarify what she intended ancillary claims (performance or damages) and where they are based on those claims. That, Nintendo has not done. It has its parallel advances in no explanation, even after defendants who claims in the statement of defense had contested.

5.22. The foregoing does not apply if Nintendo with its claim for payment of earnings has meant that a compensation claim should be assessed at the amount of profits made by defendants. Nintendo may indeed be entitled to compensation for its loss and damage under Article 6:104 BW is estimated at the amount of profit that their tort defendants have received. Remittance of profits in this sense may be deemed to be included in the allocation of liability to pay compensation.

5.23. Defendants, except for [K] will mainly as the unsuccessful party pay the costs. Since not in dispute is that the entire procedure must be regarded as maintaining an intellectual property right under Article 1019 Rv, the court will go deep. Therefore, the costs are budgeted under Article 1019h Rv.

5.24. In Case 08-3879 Nintendo seeks an amount of € 138,501.81. For a joint conviction exists, other than Nintendo thinks, no land. Since Nintendo has not specified how much of this amount is accounted for by the defendant, the court will assume that the costs should be equally distributed among the defendants. [G] and [F] have not denied their share of the said amount is reasonable and proportionate within the meaning of Article 1019h Rv. They will therefore be ordered to pay € 12591.07 each (1 / 11 × € 138,501.81). The Webshops, the reasonableness and proportionality of the amounts claimed or challenged in appearance and requested that the cost to mitigate the relevant indicator rate. The costs claimed by them, namely € 77600.00, beyond that rate also. Having them must be considered in any case such costs are reasonable and proportionate.


6. The decision


Recommends defendants, except for [K], within 24 hours after service of this order to cease and to keep importing, distributing, selling, advertise or possess for commercial purposes
a. flash cards and / or modchips;
b. modchips converted with Nintendo products;
c. and services consisting of or relating to the conversion of Nintendo consoles with modchips;

6.2. Recommends defendants, except for [K], within fourteen (14) days after service of this award, all modchips, including modchips that are built into consoles, and flash cards that they themselves or others in stock at their own expense by a external destruction company to destroy except one sample for each different product as a sample will be ceded to Nintendo, and within that period at its own expense as evidence of that destruction lawyer Nintendo by a bailiff put minutes of observation with for this destruction and for those samples to be sent;

6.3. Recommends defendants sub 2, 8 and 9 within fourteen (14) days after service of this order with the shipment Airwaybillnummer [number] and flash cards with accessories and packaging which are located in the consignment Shipment ID-/trackingnummer [number] and or [number] to set aside to assist with Nintendo or by a third to be determined, with the exception of one sample for each different product as a sample is transferred to Nintendo;

6.4. recommends defendant sub 1 within fourteen (14) days after service of this order the modchips and flash cards with accessories and packaging materials contained in the consignment Airwaybillnummer [number] for destruction to concede to Nintendo or an to be determined third, with the exception of one sample for each different product as a sample is transferred to Nintendo;

6.5. recommends that the defendant in breach of the above orders, or any part thereof to pay Nintendo a immediately payable penalty of € 10,000.00 per day or part of one day or, at the discretion of Nintendo, € 1000.00 per individual product, with a maximum of € 250,000.00 for each defendant;

6.6. condemns defendants, except [K], to compensate the damage that Nintendo has suffered because of their unlawful conduct, to draw closer to state and to liquidate the law;

6.7. Condemns [F] [G], individually, to pay a sum of Nintendo of € 12,591.07 each to offset the costs to date that Nintendo has made in their case;

6.8. Condemns the Web shops, each with the exception of [K] Nintendo to pay a sum of € 7054.55 each for court costs, which until now Nintendo has made in their cases;

6.9. Nintendo condemns the costs of the proceedings against [K], to date in support of [K] estimated at € 7054.55;

6.10. Points on which more advanced or otherwise;

6.11. declares this award enforceable;

in Case 09-348

6.12. Recommends [L] within 24 hours of receipt of the award to strike and to keep importing, distributing, selling, advertise or possess for commercial purposes of flash cards;

6.13. Recommends [L], within fourteen (14) days after service of this order all the flashcards that they themselves or third parties stocking at their own expense by an outside disposal company to destroy, with the exception of one sample for each different products as sample will abandoned to Nintendo, and within that period at its own expense as evidence of the said destruction by Nintendo's lawyer made a bailiff minutes of observation with respect to such destruction and for those specimens to be sent;

6.14. Recommends [L] within fourteen (14) day of receipt of the award the flash cards with accessories and packaging which are located in four from China dispatches respective Airwaybillnummers [number] [number] [number] and [number] to destruction to concede to Nintendo or to be determined by one third, with the exception of one sample for each different product as a sample is transferred to Nintendo;

6.15. Recommends [L] to pay Nintendo a immediately payable penalty of € 10,000.00 per day or part of a day that the above-mentioned order or any part thereof or violates, at the discretion of Nintendo, a fine of € 1000, 00 by-product that they ordered or any part thereof in force, with a maximum of € 250.000,00;

6.16. Condemns [L] to compensate the damage suffered due to Nintendo's wrongful act, further to make in state and settle the law;

6.17. Condemns [L] in the costs to date in support of Nintendo estimated at € 29485.76;

6.18. Points on which more advanced or otherwise;

6.19. declares this award enforceable.


This verdict was delivered by Mr. P.H. Block, Mr. Chr.A.J.F.M. Hensen and Mr. P.G.F.A. Geerts and in open court on July 21, 2010.