Netherlands, AKD updates

Intellectual Property

Contributed by AKD
Use of customs information in relation to parallel imports
  • Netherlands
  • 06 July 2020

The Hague District Court recently had to answer the question of whether information acquired during a customs seizure under the EU Anti-piracy Regulation may be used for an unauthorised parallel import claim. The regulation provides an effective means and procedure for IP rights holders to request Customs to intercept consignments suspected of containing counterfeit or pirated goods and to have said goods destroyed.

Dutch court of appeal diverges from German appellate court in G-Star case
  • Netherlands
  • 20 April 2020

In 2019 The Hague Court of Appeal overruled a first-instance court decision even though that court had followed an earlier German higher court decision based on the principle of loyalty under EU law. The Dutch judgment demonstrates that trademark law specifics can easily stand in the way of the EU principle of loyalty. It is also a useful reminder that, in the context of trademark infringement assessments, a trademark's level of distinctiveness is a substantial aspect, but one which can change due to evolving market circumstances.

Injunction against foreign director for IP infringement based on Dutch law on directors' liability
  • Netherlands
  • 09 March 2020

In preliminary proceedings, The Hague District Court recently assessed whether an injunction could be granted against an Irish director of a company based in Ireland in relation to a copyright infringement in the Netherlands. This judgment is a useful reminder that company directors who are not domiciled in the Netherlands can be liable under Dutch law on directors' liability when offering infringing products in the Netherlands.

Competence of district courts in summary proceedings relating to EU community designs
  • Netherlands
  • 13 January 2020

The Supreme Court recently requested a preliminary ruling from the European Court of Justice (ECJ) concerning the competence of district courts in summary proceedings relating to EU community designs. An immediate consequence of the ECJ's decision is that district courts other than the one in The Hague will be unable to provide provisional measures in cases relating to EU trademarks.

Court rules on inventor's failure to transfer patent
  • Netherlands
  • 21 October 2019

The Hague District Court recently rendered a judgment regarding an inventor's failure to cooperate with the exploitation of his patents. The claimant had alleged that the defendant's refusal to cooperate with the transfer of the patent to a foundation (which would have subsequently granted the claimant a licence) had prevented it from exploiting the patent, including sub-licensing it to third parties.


Litigation

Contributed by AKD
Temporary Deferral of Payments Act 2020 introduced to protect companies from bankruptcy
  • Netherlands
  • 04 August 2020

Despite the impact of the COVID-19 outbreak on legal matters and company wellbeing, creditors still have the same remedies at their disposal to recover unpaid debts and the Dutch courts are generally handling bankruptcy petitions and requests for pre-judgment attachment in the same way. However, this will likely change soon, as in June 2020 the minister for legal protection published a preliminary draft of the Temporary Deferral of Payments Act 2020 for online consultation.

Court rules that 'fear of loss' does not constitute damage under CMR
  • Netherlands
  • 14 July 2020

Under the Convention on the Contract for the International Carriage of Goods by Road (CMR), carriers are liable for the total or partial loss of goods or damage to goods that occurs between the carrier taking charge of the goods and delivery. The Court of Amsterdam recently held that the word 'damage' in the relevant sections of the CMR presumes substantial physical change to the state of the goods and ruled out, in this case, that a broken seal on a container represented damage.

Use of customs information in relation to parallel imports
  • Netherlands
  • 07 July 2020

The Hague District Court recently had to answer the question of whether information acquired during a customs seizure under the EU Anti-piracy Regulation may be used for an unauthorised parallel import claim. The regulation provides an effective means and procedure for IP rights holders to request Customs to intercept consignments suspected of containing counterfeit or pirated goods and to have said goods destroyed.

Debt collection during COVID-19
  • Netherlands
  • 02 June 2020

The COVID-19 outbreak is greatly affecting legal matters and company wellbeing. Some companies can no longer comply with their contractual obligations, while others have become financially distressed. To ensure that creditors do not make improper use of the measures available to collect a debt or ensure recourse, the question has arisen as to whether the courts should change the way in which they assess such measures.

Dutch court of appeal diverges from German appellate court in G-Star case
  • Netherlands
  • 21 April 2020

In 2019 The Hague Court of Appeal overruled a first-instance court decision even though that court had followed an earlier German higher court decision based on the principle of loyalty under EU law. The Dutch judgment demonstrates that trademark law specifics can easily stand in the way of the EU principle of loyalty. It is also a useful reminder that, in the context of trademark infringement assessments, a trademark's level of distinctiveness is a substantial aspect, but one which can change due to evolving market circumstances.


Shipping & Transport

Contributed by AKD
Appeal court finds that carrier had strengthened obligation to furnish facts in CMR claim
  • Netherlands
  • 15 July 2020

The Netherlands has historically been a friendly jurisdiction for Convention on the Contract for the International Carriage of Goods by Road (CMR) carriers. However, there are some exceptions. In certain circumstances, a claimant may be able to rely on a carrier's 'strengthened obligation to furnish facts'. The Den Bosch Appeal Court recently held that a CMR carrier had such a strengthened obligation in order to enable the claimant to meet its burden of proof regarding (the fault equivalent of) wilful misconduct.

Court rules that 'fear of loss' does not constitute damage under CMR
  • Netherlands
  • 08 July 2020

Under the Convention on the Contract for the International Carriage of Goods by Road (CMR), carriers are liable for the total or partial loss of goods or damage to goods that occurs between the carrier taking charge of the goods and delivery. The Court of Amsterdam recently held that the word 'damage' in the relevant sections of the CMR presumes substantial physical change to the state of the goods and ruled out, in this case, that a broken seal on a container represented damage.

Burden of proof remains with shipowner in proving terminal operator liability
  • Netherlands
  • 25 March 2020

The loading and unloading of cargo from ships is a key element in the transport chain. However, ships are sometimes damaged during these operations. This raises the question of whether – and on what grounds – a terminal operator can be successfully held liable for such damage. A recent Rotterdam District Court decision upheld the standard of liability established in Dutch case law, confirming that the burden of proof lies with the shipowner when it comes to demonstrating terminal operator liability.

The Netherlands – a hotspot for provisional and conservatory measures
  • Netherlands
  • 04 December 2019

Ports in the Amsterdam, Rotterdam and Antwerp region are historically known as ship arrest paradises. However, there are developments in connection with conservatory measures which are less well known and that have not been extensively reported on. These developments concern securing evidence following a landmark Supreme Court ruling in 2013, which has served as a starting point for several cases.

Flying the Dutch flag: opportunities for shipowners
  • Netherlands
  • 23 October 2019

Flying the Dutch flag has unfortunately become less popular with shipowners over the past 10 years. Although the exact reasons for this fall in popularity are unknown, the presumption that flying the Dutch flag is limited by the location of the vessel's owner may be a contributing factor. However, although on the face of it only European shipowners appear to be able to obtain a nationality certificate, the scope for flying the Dutch flag is actually much wider.


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