AKD The Netherlands updates

adidas knocked out in trademark infringement case: McGregor IP maintains right to use Conor McGregor's name
AKD The Netherlands
  • Litigation
  • Netherlands
  • 27 November 2018

The Hague District Court recently rendered an interim judgment in a matter between Dutch limited liability company McGregor IP BV and adidas. The key question in this case was whether adidas – in using the name of a sports hero on items such as hoodies, shorts and jerseys – had infringed McGregor IP's trademark rights. Notably, the outcome of this matter could have been different had the design and display of the signs at issue been different.

Amsterdam District Court dismisses Fairfield Funds' claim against PwC in relation to Madoff Ponzi scheme
AKD The Netherlands
  • Litigation
  • Netherlands
  • 30 October 2018

The Amsterdam District Court recently rendered its judgment in the proceedings between the liquidator of Fairfield Sentry Limited, Fairfield Sigma Limited and Fairfield Lambda Limited (the Fairfield Funds) against Dutch public limited companies PricewaterhouseCoopers Accountants NV and PricewaterhouseCoopers NV and four accountants affiliated therewith. The proceedings centred on the fraud committed by Bernard Madoff that came to light in 2009, of which the funds had been victims.

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
AKD The Netherlands
  • Litigation
  • Netherlands
  • 25 September 2018

In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.

Supreme Court confirms right to limit liability
AKD The Netherlands
  • Litigation
  • Netherlands
  • 21 August 2018

The Supreme Court has reconfirmed the right to limit liability under Dutch law, even in personal injury cases. It held that limitation as such is not a violation of the human right to protection of property under the First Protocol to the European Convention on Human Rights, and that it is nationally and internationally considered necessary that the liability of the carrier is limited or may be limited in the event of a passenger's death or personal injury.

Supreme Court further clarifies scope of 'main proceedings' for pre-judgment attachments in cross-border disputes
AKD The Netherlands
  • Litigation
  • Netherlands
  • 14 August 2018

The Dutch courts have jurisdiction to grant permission for pre-judgment attachment on assets that are located in the Netherlands, even if the debtor is foreign and the Dutch courts have no jurisdiction in the main proceedings. A recent Supreme Court decision has provided further guidance on which (foreign) court actions can be considered 'main proceedings' within the meaning of the Code of Civil Procedure and at what time the creditor must be deemed to have instituted these main proceedings.

Supreme Court confirms right to limit liability
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 08 August 2018

The Supreme Court has reconfirmed the right to limit liability under Dutch law, even in personal injury cases. It held that limitation as such is not a violation of the human right to protection of property under the First Protocol to the European Convention on Human Rights, and that it is nationally and internationally considered necessary that the liability of the carrier is limited or may be limited in the event of a passenger's death or personal injury.

Can directors be held liable for IP infringements?
AKD The Netherlands
  • Litigation
  • Netherlands
  • 07 August 2018

The Hague District Court recently had to assess whether a natural person could be held accountable for a company's trademark and copyright infringement. Although the court could not establish whether the person was an official director of the infringing company, this did not stand in the way of his liability. In accordance with Supreme Court case law, liability can arise where a party plays a substantial part in the policy of a company that acts unlawfully and behaves as if they are a director of the company.

Netherlands prepares to adopt Rotterdam Rules
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 01 August 2018

With two bills recently submitted to Parliament, the Netherlands is preparing to adopt the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) into Dutch law. This legislative effort is a clear sign of support in respect of the rules and will be appreciated by those convinced that the rules are the way forward for the carriage of goods in this age of e-commerce.

Agenda setting: Supreme Court clarifies shareholders' rights for general meetings
AKD The Netherlands
  • Litigation
  • Netherlands
  • 12 June 2018

The Supreme Court recently clarified the scope of shareholders' rights under the Civil Code with regard to (non-binding) voting items on general meeting agendas. Under Dutch corporate law, shareholders have the right to request the board of directors of a public or private limited company to put an item on the agenda of a shareholders' meeting if the threshold and timing requirements are met. Such requests may be refused by the board of directors only in exceptional circumstances.

Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 16 May 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 rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
AKD The Netherlands
  • Litigation
  • Netherlands
  • 15 May 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
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 09 May 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.

Dutch court underlines arrestors' rights
AKD The Netherlands
  • Litigation
  • Netherlands
  • 08 May 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
AKD The Netherlands
  • Litigation
  • Netherlands
  • 24 April 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
AKD The Netherlands
  • Litigation
  • Netherlands
  • 17 April 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.

Supreme Court rules on determination of LLMC claims
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 11 April 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
AKD The Netherlands
  • Litigation
  • Netherlands
  • 03 April 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.

More restraint required in granting permission for pre-judgment seizure
AKD The Netherlands
  • Litigation
  • Netherlands
  • 20 March 2018

The Netherlands has traditionally been known as a country in which it is easy to seize before judgment. However, preliminary relief judges seem to be increasingly strict when it comes to granting permission to levy a pre-judgment seizure. For example, creditors must now properly indicate the specific basis of a claim and preliminary relief judges often expect evidence to be submitted. In a recent case, the preliminary relief judge of the Noord-Holland District Court ruled, in so many words, that restraint is required.

Road carriers face difficulty in establishing CMR force majeure exemptions
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 14 March 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
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 24 January 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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