For most companies and enterprises intellectual property is an important asset. Intellectual property rights such as patents, trademarks and copyrights are often more valuable than physical assets. It is therefore important for companies to take adequate steps to develop an intellectual property strategy to ensure the best protection and use of these assets. In this summary we provide more information regarding the main types of intellectual property rights and protection under Dutch law.
Dutch patents are protected under the Dutch Patent Act (Rijksoctrooiwet) 1995. A patent is the exclusive right to an invention in all fields of technology. An invention is patentable if the following requirements are met:
To obtain a Dutch patent an application must be filed to the Netherlands Patent Office. Within 13 months following the patent application a novelty search must be requested. The results of this search will be available within nine months. The outcome does not determine whether a patent will be granted, even if the search report indicates that the invention lacks novelty. In a patent dispute the novelty requirement is assessed by the courts. 18 months after the filing date the patent (application) will be published in the Dutch patent register. The term of protection is 20 years as from the date of filing.
A Dutch patent right owner has the exclusive right to prohibit third parties from using the invention in the patent for commercial purposes. The use of the invention includes manufacturing, bringing onto the market, selling, lending, supplying, offering, importing and having in stock the patented product.
A trademark is a sign that distinguishes a company’s goods (products) or services from other. This can be a brand name or a logo. A trade name or company name can also be a trademark.
According to the Benelux Convention on Intellectual Property (BCIP), the trademark must be registered in order for it to be protected in the Netherlands (and Belgium and Luxembourg). The Benelux Office for Intellectual Property (BOIP) is the official body for the registration of Benelux trademarks. The procedure for a definitive trademark registration takes approximately four months. Upon payment of an extra fee it is possible to accelerate the registration of the trademark. The BOIP will – inter alia – refuse registration if:
A Benelux trademark registration is valid for a period of ten years and can be renewed every ten years, provided the request for renewal is made within six months prior to the expiration date. To maintain the right the trademark must be used actively.
A trademark owner has the exclusive right to prohibit third parties from using or registering a ‘younger’ sign that is identical to the trademark and used for identical goods or services. The use or registration of a similar ‘younger’ for similar goods or services can also be prohibited if likelihood of confusion exists. The owner of a trademark registration, that is well known in the Benelux countries, can also oppose the use of an identical or similar ‘younger’ sign used for similar or dissimilar goods or services, provided that this use takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the original trademark.
The Dutch Trade Name Act (Handelsnaamwet) protects trade names in the Netherlands. A trade name is the name a company trades under. In principle a company is free to choose its trade name. However, it is prohibited to use a trade name that is or can be misleading, e.g. about the ownership or the legal nature of the entity.
Registration of a trade name, for example in the Dutch Trade Register, is not a requirement for protection. A trade name right arises from the use of the trade name. Contrary to a trademark a trade name does not need to be distinctive. However, a descriptive name will have a limited scope of protection.
The Dutch Trade Name Act prohibits the use of a trade name that is identical or similar to a trade name already being used by another company, if such use can cause likelihood of confusion taking into account the nature and location of the companies.
In the Netherlands copyright is protected by the Copyright Act (Auteurswet). It grants the author of a literary, scientific or artistic work the exclusive right to make the work available to the public and reproduce it.
On the basis of Dutch (case) law a work must have an individual, original character and bear the personal imprint of the maker. The law gives a non-exhaustive list of examples of works that are eligible for copyright, such as books, brochures, paintings, computer programs. But also product design, website design and logos may be under copyright protection. An idea, concept or format is not protected, unless it is embodied in a specific work.
Copyright is obtained by the mere creation of a work that meets the aforementioned conditions. There are no formal requirements such as registration or the use of a copyright notice like “©”. Copyright protection ends seventy years after the death of the author or, in case the author is a legal entity, seventy years after the first publication of the work.
It is possible to file an I-depot to the Benelux Office for Intellectual Property (BOIP). An I-depot can proof that a creation already existed on a certain date, which may be useful in a discussion about the originality of the work. However, it does not offer intellectual property rights.
A copyright owner can prevent third parties from unauthorized publication or reproduction of the work. There is a copyright infringement in case the alleged infringing product and the work have the same overall impression. In a copyright dispute this will be assessed by the courts by taking into account the copyrighted features of the work.
The Benelux Convention on Intellectual Property (BCIP) protects the appearance of designs and models. Designs within the meaning of the BCIP are two-dimensional (patterns); models are three-dimensional.
In order to be protected the design or model must be new and have an individual character. A design or model is considered new if no identical design or model has been made available to the public prior to the date of filing the application for registration. For the designer a ‘terme de grâce’ of twelve months applies, which means that a design or model is still considered new if it has been made available to the public by the designer twelve months prior to the filing date. Designs or models are deemed to be identical if their features differ only in immaterial details. The condition of an individual character involves that the overall impression of the design or model on the informed user must differ from the overall impression of any design or model that has been made available prior to the filing date.
The exclusive right to a Benelux design or model can be acquired by filing an application for registration with the Benelux Office for Intellectual Property (BOIP). If the application meets all formal requirements, the design or model will be registered without further examination. The novelty and individual character requirement will be assessed by the courts in case of a design or model dispute.
The term of protection for Benelux designs and models is five years and can be renewed for four successive periods of five years. The maximum period of protection is therefore twenty five years.
The exclusive right allows the owner to challenge the use of a product in which the design or model is incorporated or to which the design or model is applied, which has an identical appearance to the registered design or model, or which does not produce a different overall impression on the informed user. Use of a product includes manufacturing, offering, marketing, selling, delivering, hiring, importing, exporting, exhibiting and holding of the product.