Use and Protection of Intellectual Property in the Netherlands
Many enterprises and companies treat intellectual property as a significant asset. The rights related to it – copyrights, trademarks, patents – often prove to be more profitable in comparison to physical assets. Therefore, it is important for corporations to develop adequate strategies with respect to their intellectual property in order to guarantee the best use and protection of their assets. The present brief overview provides information on the major rights relevant to intellectual property and their protection under the law in Holland.
Patents in the Netherlands
In the Netherlands, the Act on Patents (Rijksoctrooiwet) from 1995 protects patent rights. By definition, patents are exclusive rights to inventions in all technological fields. Inventions are patentable if they meet several requirements:
- they concern a technical process or product;
- they are novel, i.e. have not been publicly disclosed by any means before the day of submission of the application for patent registration;
- they involve inventive steps, i.e. the inventions are not too obvious;
- they have industrial applications.
Applications for Dutch patents are submitted to the national Patent Office. The applicant must request a search for novelty 13 months after the submission of the application. In another 9 months, the search results become available. These results, however, do not decide whether the invention will be patented or not, even if it lacks novelty according to the report. In a dispute, the requirement for novelty is considered in court. The patent or application is included in the patent registry of the Netherlands eighteen months after the submission of the application. The protection term is twenty years from the filing date.
The owner of the patent has exclusive rights to prohibit the use of the invention for commercial aims by third parties. Invention use means production, placing on the market, lending, selling, offering, supplying, storing and importing the patented invention.
Trademarks in the Netherlands
Trademarks are signs that distinguish companies’ services or products (goods) from others on the market. They can be either logos or brand names. Company names or trade names can be considered trademarks.
The BCIP (Benelux Convention related to Intellectual Property) states that a trademark must first be registered to ensure protection in Belgium, Luxembourg and the Netherlands. The BOIP (Benelux Intellectual Property Office) is the institution for official registration of trademarks in Benelux. The definitive registration of a trademark is completed in about 4 months. The payment of an additional fee can speed up the procedure. The Office will refuse to register a trademark if, among other reasons:
- it lacks distinctive characteristics or does not satisfy the trademark definition;
- it conflicts with morality or public order;
- it can mislead the public.
All trademark registrations in Benelux are valid for 10 years. They are renewable every 10 years if the renewal request is submitted 6 months before the trademark expiration date. Trademarks need to be actively used to maintain their rights.
Trademark owners have the exclusive rights to prohibit other parties to use or register newer signs, identical to their trademarks and use them for identical services or goods. The registration or use of similar newer signs for similar services or goods may also be banned if there is a probability of confusion. Trademark owners that are popular in the region of Benelux can also dispute the usage of similar or identical newer signs for any services or goods (regardless of their level of similarity) if this usage takes unjust advantage of the original reputation or character of their trademarks or brings unfavourable consequences for the owners.
Certain multinational organisations give the possibility to foreign entrepreneurs to use their trademarks as a franchise. This can be concluded as part of a franchise contract, which regulates the franchise requirements and financial compensation between the franchisee and the franchisor. Naturally, franchise agreements have to comply with the Dutch law. Read here for more information on franchise agreements.
Trade names in the Netherlands
In Holland, trade names are protected by the Dutch Act on Trade Names (Handelsnaamwet). Trade names are defined as the names that companies trade under. In general, a company can freely choose a trade name, as long as the chosen name is not misleading, for example as regards the entity’s ownership or legal nature.
Protection does not require trade name registration, e.g. in the Commercial Registry of the Netherlands. The rights connected to trade names arise from their use. In contrast to trademarks, trade names do not have to be original. Still, descriptive names have limited protection.
The Act on Trade Names prohibits the usage of a name, similar or identical to a name in use by another entity if such usage is likely to cause confusion, given the location and nature of the entities.
Copyrights in the Netherlands
In Holland, the Act on Copyright (Auteurswet) protects copyrights. It gives authors of artistic, literary or scientific works exclusive rights to reproduce their works and make them publicly available.
According to Dutch law, works should have original, individual characters and reflect the personal imprints of their authors. The provisions contain an exemplary list of copyright-eligible works: paintings, books, computer programs, brochures, etc. Logos and website/product design can also be protected by copyrights. Ideas, concepts and formats are not protected if they are not embodied in specific works.
Copyrights are obtained through the creation of works meeting the abovementioned conditions. No official requirements, e.g. usage of a sign like “©“ or registration, exist. The protection of copyright ends 70 y. after the author’s death. If the creation is authored by a legal person, the copyright is protected for 70 y. after the work’s first publication.
There is an option to submit an i-DEPOT at the BOIP. This can prove the existence of a creation at a particular time and might be helpful when considering whether a particular work is original. The i-DEPOT, however, does not create an independent intellectual property right.
Copyright owners can prohibit other parties to publish or reproduce their work without authorization. If a particular product and a copyrighted work leave identical overall impressions, then there is an infringement of copyright. Disputes are taken to competent courts that assess the cases by considering the work’s copyrighted features.
If you have questions concerning intellectual property and the relevant rights or intend to develop a business in the Netherlands, you can contact our Dutch agents specializing in company set-up.