Intellectual Property, Netherlands updates

Court rules on inventor's failure to transfer patent
AKD The Netherlands
  • 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.

'Spreading' a work under Dutch copyright law: the gift that should not have been given
AKD The Netherlands
  • Netherlands
  • 26 August 2019

Article 12 of the Copyright Act lists a number of acts that fall within the definition of 'disclosure to the public'. In addition to the more straightforward cases of disclosure, Article 12(1)(2) specifically stipulates that disclosure also includes verbreiding (translated in English as 'spreading') all or part of a work or a reproduction thereof where the work has not yet appeared in print. Although there is little case law on the act of spreading, the subject was recently debated in an Amsterdam Court of Appeal case.

Unauthorised filing of trademarks by agent or representative
AKD NV
  • Netherlands
  • 24 June 2019

The District Court of Gelderland recently rendered a judgment on the subject of unauthorised agent or representative filings. It deemed that a third party was so closely involved in the distribution agreement between two other parties that it could be ordered to transfer the trademarks that it had registered unauthorised, despite the third party arguing that it could not be regarded as an agent, representative or distributor of the two other parties.

Not all alterations of architectural works result in infringements of moral rights
AKD The Netherlands
  • Netherlands
  • 29 April 2019

The Supreme Court recently issued a long-awaited decision on an architect's moral rights of paternity and integrity. In recent years, several Dutch judgments have considered whether architects can oppose changes to their original building designs. The Supreme Court's decision further clarifies that it is difficult for architects to do so where the changes are necessary to alter a building's function.

Hema crocodile takes bite out of Lacoste trademark
AKD NV
  • Netherlands
  • 18 February 2019

The Hague District Court recently issued a preliminary ruling in which it held that Lacoste could not invoke its famous crocodile trademark in order to prohibit the use of a crocodile motif on children's underwear. This preliminary judgment is one of only a few examples in which the use of a sign has been considered purely decorative (and thus could not be perceived as trademark use). Typically, the courts are restrictive in accepting such a defence.

No copyright protection for taste of food
AKD NV
  • Netherlands
  • 24 December 2018

The European Court of Justice (ECJ) recently rendered its decision in the dispute between Dutch parties Levola and Smilde concerning Levola's cream cheese product. The Arnhem-Leeuwarden Court of Appeal had referred a number of prejudicial questions to the ECJ – in particular, whether a taste can be eligible for copyright protection. Among other things, Levola argued that disallowing copyright protection for the taste of foodstuffs would be contrary to Dutch Supreme Court case law.

adidas knocked out in trademark infringement case: McGregor IP maintains right to use Conor McGregor's name
AKD NV
  • Netherlands
  • 26 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.

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
AKD NV
  • Netherlands
  • 24 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.

Can directors be held liable for IP infringements?
AKD NV
  • Netherlands
  • 06 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.

The considerable value of Max Verstappen's likeness
AKD NV
  • Netherlands
  • 18 June 2018

The Amsterdam District Court recently allowed a substantial damages claim following Dutch grocery delivery start-up Picnic's unlawful use of a lookalike of the famous Formula 1 driver Max Verstappen. This case clarifies that a person's right to control the use of their image cannot be violated easily. Although the parody defence is useful, the chance of success is limited if the parody is made in order to achieve commercial gain.

Benelux Convention on Intellectual Property amendments: what do they mean for Dutch trademark holders?
AKD NV
  • Netherlands
  • 16 April 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
AKD NV
  • Netherlands
  • 12 February 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
AKD NV
  • Netherlands
  • 04 December 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
AKD NV
  • Netherlands
  • 23 October 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
AKD NV
  • Netherlands
  • 21 August 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.

Heks'nkaas: an appetising copyright matter
AKD NV
  • Netherlands
  • 26 June 2017

The Arnhem-Leeuwarden Appellate Court recently referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice. The case that led to the court's referral addressed the question of whether a certain taste can be protected under copyright law. The particular taste for which protection was sought was a popular cheese product.

Updated indicative tariffs for compensation of legal costs in IP cases – ex officio review by courts
AKD NV
  • Netherlands
  • 01 May 2017

The indicative tariffs used to determine reasonable and proportionate legal costs in IP cases were recently revised, following the European Court of Justice's judgment regarding the interpretation of the EU Enforcement Directive and the Supreme Court's judgment that judges must decide ex officio on the assignment of the cost of proceedings and the amount thereof. Notably, the category of 'very simple' cases has been introduced, in which only the standard liquidation rates will apply.

Fictive ownership of copyright: rights of use under Copyright Contracts Act
AKD NV
  • Netherlands
  • 27 February 2017

The Rotterdam District Court recently rendered its judgment in a matter between two parties that had jointly run a food truck. After having gone their separate ways, the food truck owner continued to operate the business. When the other party continued to use the business's name and logo, the food truck owner demanded that it cease to do so and commenced proceedings to that effect. This seemingly small case is noteworthy, as it demonstrates the consequences of copyright mismanagement.

ECJ rules that Dutch libraries' e-lending falls within scope of EU Rental and Lending Rights Directive
AKD NV
  • Netherlands
  • 19 December 2016

The European Court of Justice (ECJ) recently rendered its judgment in the dispute between Vereniging Openbare Bibliotheken and Stichting Leenrecht, which had been referred to it by the Hague District Court. The ECJ considered whether the lending of electronic books by Dutch public libraries falls within the scope of the EU Rental and Lending Rights Directive and is covered by the existing public lending rights regime under the Dutch Copyright Act.

Hyperlink to infringing content may constitute copyright infringement
AKD NV
  • Netherlands
  • 24 October 2016

The European Court of Justice (ECJ) recently ruled that hyperlinking to protected works which are freely available on another website without the consent of the copyright holder may be regarded as communication to the public and thus constitute copyright infringement. The ECJ considered that hyperlinking to infringing works constitutes infringement on the condition that the hyperlinker knew or ought to have known the illegal nature of the publication of those works on another website.

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