Intellectual Property law in The Netherlands
While ownership rights offer the owner of a house or car protection against unlawful acts of others, intellectual property rights protect owners of creations of the mind. Intellectual Property results from the expression of an idea. This can be music, design, inventions, texts and photos, but Intellectual Property also protects brands and patents. There are 4 main types of Intellectual Property Rights in the Netherlands: copyright, trademark law, trade name law and patent law.
Exclusive & Absolute
In brief, IP-rights give the creator of a work the exclusive rights to use, to reproduce and/or to exploit the work. The creator can invoke the intellectual property protection against everyone who use or copies the work without permission. It is required, though, that the work is fixed (written down or recorded): merely an idea is not protected.
Copyright is the exclusive right of the author of a literary, scientific or artistic work to communicate that work to the public and to reproduce it, subject to the limitations laid down by Dutch law (exceptions are made in order to protect the freedom of press and for educational purposes). Only original works are protected by copyright. A work is original when it is the result of independent creative effort.
A trademark is a sign that a company uses to distinguish their goods and services. It can be a work like IKEA or Coca-Cola or a sign like the small apple from Apple. In order for a trademark to be protected in the Netherlands it has to be registered at the Benelux Trade Mark Office. For worldwide protection you need to register at the World Intellectual Property Organization in Geneva.
Trade Name Protection
A trade name is nothing more than the name under which a business is conducted. To avoid misleading or confusing of the public, the Trade Name Law protects the undertaker. This means that another company is not allowed to use the same or a similar name if the risk of confusion exists. A name has to comply with certain rules before it is protected. Firstly, it is not allowed to use a trade name that is misleading about the legal entity of the company nor can the name be misleading about the nature of products or services. And, obviously, a trade name cannot be already in use by someone else. A trade name does not need to be registered in the (Dutch) Trade Register in order to be protected; the undertaker who uses the name first can invoke the protection. The name has to be effectively been used in public though.
Intellectual Property Enforcement
In case of infringement of IP-rights, the owner is responsible for enforcement. Demanding an injunction in court is the most obvious legal action. Apart from claiming that the infringer be prohibited from infringing and be ordered to pay compensation, the owner can also claim recall of all counterfeit products and full compensation of the legal costs. This is exceptional in the Netherlands as it is standard practice that only a part (according to a fixed rate) of the legal costs are awarded to the winning party.
IP lawyer in Amsterdam
Law firm AMS is based in Amsterdam, the Netherlands. Our lawyers have gained a broad experience in advising and litigating for (international) companies and individuals. The attorneys are highly involved with their client’s interests and offer a sharp and transparent fee structure. Should you require more information on protection of your intellectual creations in the Netherlands or how to enforce your IP-rights? Please feel free to contact us.