In the Netherlands, mainly the following intellectual property rights are distinguished:
- Copyright (including neighboring rights);
- Trade mark (including geographical indications);
- Design right;
- Plant breeders’ right;
- Chips right.
The article is going to focus on the first four since they are more usual in practice.
Establishment of the right: what protection can it provide?
The rights are established and further working in different ways.
For copyright, the right is established as soon as one creates the work – no need of registration – provided that the work is an original and creative literary or artistic work that is created by some person and fixed in some material form. Author can usually enjoy exclusive economic and moral rights once the work is created for his or her whole life and another 70 years after he or she dies; but moral right often expires earlier, together with the death of the author, unless he or she has, by testamentary disposition, appointed someone to exercise the rights after his or her death.
As to the patent, the right holder needs to register under EU level or national level. A novel and inventive invention, either European or national, can be protected in the Netherlands, provided that the European patent is validated here with the requirements set by the Patent Act. Generally, the patent owner can preclude anyone “use” – including making, using, distribution, importation or sale – their invention without their consent. Such right last for 20 years.
Trade mark takes a mediate position that either registered or unregistered marks can obtain protection, only that it is an exception to provide protection to unregistered marks under the BCIP, on condition that they are reputed marks within the meaning of Article 6 bis of the Paris Convention. You can choose to register your trade mark as a Benelux (instead of national), community or international mark, which all can be protected in the Netherlands. Such a registration is valid for 10 years as the first round, after which it can be renewed continuously. After the successful registration, the right holder has the exclusive right to prevent the third party to, without his or her consent, to use a mark that:
- Identical or similar to the protected mark on the identical or similar goods or services with a likelihood of confusion, or;
- Identical or similar to the protected mark with a reputation on any kind of goods or services, where such use will, without due cause, bring an unfair advantage or detriment to the distinctiveness of the trade mark.
Similar to trademarks, a design can be registered under Benelux or community level. Either registered or unregistered marks can obtain protection in the Netherlands, only that the latter one is doable for a community design.
Transfer possible: to use your right wisely
You can also transfer your right in whole or in part. Sometimes license is an ideal strategy. In this case, the right holder still enjoys the right, but giving permission to a third party to use in an exclusive or non-exclusive way, which will be decided under negotiation and finally agreed in writing. Or the right holder may sell the work completely, in which case the right will be authentically transferred to the buyer.
Infringement of the IP: what should you do?
When there is an infringement of the intellectual property right, the right holder may seek protection by enforcement. Both civil law and criminal law may involve, but the criminal proceedings will only commence if there is a harm to the public interest. In most cases, the owner tends to resort to remedies.
The right holder can require preliminary rulings to prevent further infringement, while taking legal actions at the same time, where the plaintiff may claim damages such as the loss of profits and the costs.
The defendant may argue the use is an exception with legal basis. For example, one can use the copyrighted work for quotation, teaching and education without commercial intention; the patent may be used in an experiment for pharmaceutical purposes with the research exemption; a person is free to use the trade mark for private intentions.
The defendant can even challenge the validity of the IP right: no originality of the copyrighted work, lack of novelty or inventive of patented inventions, lose of distinctiveness of a trade mark… If they succeed, everything will be overturned from the first step.
Interested to know more about IP rights in the Netherlands? Please give us a call on +31(0)30 23 00 230 or send an email to firstname.lastname@example.org.
Keywords: Netherlands, intellectual property, copyright, patent, trademark, design right, establishment, transfer, license, infringement
 Article 2 of the Berne Convention.
 Article 37 of the Dutch Copyright Act.
 Action 25.2 of the Dutch Copyright Act.
 Dutch validation of a European patent, available at https://business.gov.nl/running-your-business/products-and-services/protecting-your-product-idea-or-innovation/patents-and-how-to-apply-for-one/?gclid=Cj0KCQjw–GFBhDeARIsACH_kdZ1bIh-4gjkc-hVCvwWBC4YmLVagtCHfzprNdmXH-1QDiY2D0n3Z-0aAqPwEALw_wcB