Netherlands, AKD NV updates

Healthcare & Life Sciences

Contributed by AKD NV
Inducement ban regarding medical devices
  • Netherlands
  • March 28 2018

The Medical Devices Act was recently amended to include a provision that bans improper inducements aimed at stimulating the prescription or supply of medical devices on the basis of undesirable financial incentives. The aim of the amendment is to give patients more trust that healthcare professionals make decisions concerning certain devices based on legitimate grounds relating to patient care.


Intellectual Property

Contributed by AKD NV
Benelux Convention on Intellectual Property amendments: what do they mean for Dutch trademark holders?
  • Netherlands
  • April 16 2018

On June 1 2018 two protocols that amend the Benelux Convention on Intellectual Property will take effect. The amendments will make it possible for Dutch parties to initiate actions before the Benelux Office for Intellectual Property with regard to the opposition, revocation and cancellation of a Benelux trademark. They will therefore have a significant effect on Dutch revocation and cancellation procedures.

Supreme Court rules on use and functions of trademark
  • Netherlands
  • February 12 2018

The Supreme Court has upheld an opposition against the refilling of a gas tank bearing the trademark PRIMAGAZ with gas from a third party. The Supreme Court held that where a party uses another's branded packaging for its own goods, it is the same as using the other party's trademark. Finding that the act of filling the tank constituted use of the mark in the course of trade, the court held that the third party had used the PRIMAGAZ mark for commercial gain.

Supreme Court sets standards for direct and indirect infringement of Swiss-type claims
  • Netherlands
  • December 04 2017

The Supreme Court recently rendered a landmark judgment on second medical use claims – more specifically, Swiss-type claims – which have been the subject of significant legal uncertainty throughout Europe. Although the judgment provides welcome clarification on Swiss-type claims with regard to the possibility of indirect infringement and the standards for direct and indirect infringement, some questions still remain.

Scope of protection of descriptive trade names
  • Netherlands
  • October 23 2017

The Hague Court of Appeal recently rendered its judgment in a case in which the claimant was seeking protection for its trade name, Parfumswinkel, against a competing online perfume shop acting under the trade name Parfumswebwinkel. Although the outcome of this case is acceptable, the reasoning behind it is not necessarily correct. The main issue in the proceedings was whether trade name protection should be granted to trade names that are purely descriptive and lack inherent distinctive character.

District court refers questions on sale of second-hand e-books to ECJ
  • Netherlands
  • August 21 2017

Since the launch of its online second-hand e-book service in 2014, Tom Kabinet's activities have been opposed by Dutch publishers, which have unsuccessfully initiated interim injunction proceedings against the company with regard to e-books that were initially purchased and downloaded lawfully (with the copyright owner's consent). At present, proceedings on the merits of the case are pending before The Hague District Court, which recently decided to refer questions to the European Court of Justice.


Litigation

Contributed by AKD NV
Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
  • Netherlands
  • May 15 2018

The Rotterdam District Court recently ruled that a tank storage provider could not invoke the exoneration clause of the General Conditions for Tank Storage in the Netherlands (the VOTOB conditions), which are frequently used by Dutch tank terminals and storage companies. The decision is relevant, as it appears to contravene the rather strict approach adopted in Dutch case law in relation to successfully setting aside a VOTOB exoneration clause.

Dutch court underlines arrestors' rights
  • Netherlands
  • May 08 2018

​The Dutch courts recently confirmed that a party which is arresting a vessel has no obligation to pay berth fees or any other associated costs during the period that the vessel remains under arrest. This decision is notable, as although it is in line with the traditional understanding, it is one of few decisions to have been issued on this matter in the Netherlands. It will also likely be regarded with interest in other jurisdictions, where different rules concerning the obligations of arresting parties apply.

Dismissal of statutory director terminates management agreement by operation of law
  • Netherlands
  • April 24 2018

More than 10 years ago, the Supreme Court handed down the so-called 'April 15 rulings', which imply that a resolution of a shareholders' meeting dismissing a statutory director who has an employment agreement with the company also terminates the agreement by operation of law. This led to confusion as to whether a corporate dismissal resolution would result in the termination of a management agreement where such an agreement existed. The Limburg District Court recently ruled on this matter.

Supreme Court rules on determination of LLMC claims
  • Netherlands
  • April 17 2018

The Supreme Court recently ruled on how to determine which claims under the Convention on Limitation of Liability for Maritime Claims 1976 are paid out of the property fund and which are paid out of the wreck fund if a party has chosen to constitute both funds. The judgment is particularly relevant because the Netherlands recently issued a legislative proposal which aims to abolish the wreck fund and introduced unlimited liability for wreck and cargo removal claims.

Netherlands courts to enhance international appeal
  • Netherlands
  • April 03 2018

The generally favourable treatment received by international parties to commercial disputes when litigating in the Netherlands was strengthened in March 2018 when the House of Representatives accepted a legislative proposal to institute a Netherlands Commercial Court and a Netherlands Commercial Court of Appeal. For the first time in the Netherlands, it may now become possible for oral and written proceedings to be conducted, and court judgments to be delivered, entirely in English.


Shipping & Transport

Contributed by AKD NV
Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
  • Netherlands
  • May 16 2018

The Rotterdam District Court recently ruled that a tank storage provider could not invoke the exoneration clause of the General Conditions for Tank Storage in the Netherlands (the VOTOB conditions), which are frequently used by Dutch tank terminals and storage companies. The decision is relevant, as it appears to contravene the rather strict approach adopted in Dutch case law in relation to successfully setting aside a VOTOB exoneration clause.

Dutch court underlines arrestors' rights
  • Netherlands
  • May 09 2018

​The Dutch courts recently confirmed that a party which is arresting a vessel has no obligation to pay berth fees or any other associated costs during the period that the vessel remains under arrest. This decision is notable, as although it is in line with the traditional understanding, it is one of few decisions to have been issued on this matter in the Netherlands. It will also likely be regarded with interest in other jurisdictions, where different rules concerning the obligations of arresting parties apply.

Supreme Court rules on determination of LLMC claims
  • Netherlands
  • April 11 2018

The Supreme Court recently ruled on how to determine which claims under the Convention on Limitation of Liability for Maritime Claims 1976 are paid out of the property fund and which are paid out of the wreck fund if a party has chosen to constitute both funds. The judgment is particularly relevant because the Netherlands recently issued a legislative proposal which aims to abolish the wreck fund and introduced unlimited liability for wreck and cargo removal claims.

Road carriers face difficulty in establishing CMR force majeure exemptions
  • Netherlands
  • March 14 2018

On January 18 2018, despite severe weather warnings, numerous haulage companies allowed their trucks to take to the roads. As a result, many trucks were blown over, leading to extensive amounts of damage. However, any reliance by road carriers on force majeure for events arising from the storms will be hard to enforce in the Dutch courts. While it is not unthinkable that such a situation might exist, the numerous weather forecasts and code red warnings will have created a heavier burden for carriers.

Yacht damage dispute clarifies product liability implications under EU directive
  • Netherlands
  • January 24 2018

The Utrecht Subdistrict Court recently held that fire damage to a yacht caused by an air conditioning panel did not result from product liability. The court clarified the definition of 'another object' under the Dutch Civil Code and the EU Product Liability Directive, holding that because the control panel was specifically designed for use in the vessel, it was considered part of the yacht. The decision provides guidance for yacht insurers and increases the possibility of successful recovery.


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