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Intellectual Property Law in the Netherlands

Evidence seizure for IP infringement in the Netherlands

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An evidence seizure lets you secure proof of an IP infringement in the Netherlands before the infringer is warned: a Dutch court can give leave to seize, describe or sample infringing goods and documents (Article 1019b Dutch Code of Civil Procedure, DCCP). As a Dutch IP lawyer at MAAK Advocaten in Amsterdam, I prepare these applications for foreign owners of trade marks, designs, patents and software.

This article, part of our pages on intellectual property law in the Netherlands, is for companies abroad that suspect a Dutch competitor, distributor or licensee of infringing their rights.

What is an evidence seizure in a Dutch IP case?

An evidence seizure (bewijsbeslag) is a court-authorised measure. A Dutch bailiff secures goods, materials or documents that can prove an IP infringement, so the evidence cannot vanish before the case is decided (Article 1019b DCCP).

The route covers the rights listed in Article 1019 DCCP, such as copyright (including software), patents, Benelux trade marks and designs, and trade names. It applies whether you enforce a trade mark in the Netherlands, act against patent infringement or suspect a licensee of using unlicensed software, as in a software licence audit.

From the UK you may know the search order (formerly the Anton Piller order); from France or Belgium, the saisie-contrefaçon. Do not assume the same rules: in the Netherlands a bailiff carries out the measure, and you do not see the evidence until a court rules on access. EU law requires every Member State to offer measures to preserve evidence of an IP infringement (Article 7(1) Directive 2004/48/EC). Since 1 January 2025 the Code also has a general evidence seizure for other disputes (Article 205 DCCP); see our page on evidence in Dutch civil law.

What do you need to show to get leave from a Dutch court?

You must make it sufficiently plausible that your IP right has been infringed or is about to be infringed (Article 1019b(1) DCCP). Full proof is not needed at this stage: obtaining that proof is what the seizure is for.

Before the 2025 reform of the rules on evidence, the Supreme Court held that for an evidence seizure the required plausibility can be present sooner than for a claim to inspect the evidence (Supreme Court 13 November 2015, AIB/Novisem, ECLI:NL:HR:2015:3304, para. 4.1.6). One limit is strict: no leave is given insofar as the other side’s confidential information is not protected (Article 1019b(4)), so the application proposes safeguards, such as a custodian appointed by the court.

Seeing a Dutch company profit from your product while you are abroad is frustrating, and the reflex is to send a letter. My advice: not yet. A letter warns the other side, and stock, invoices and files can quickly disappear. In the first days I ask you for three things: a test purchase or dated photos, proof of your right, and what you know about where the other side keeps its stock and records. The evidence you are missing is what the seizure is for.

Seizure, description or samples: which measure should you ask for?

The measures available under Dutch law include a conservatory evidence seizure, a detailed description and the taking of samples (Article 1019b(1) DCCP); one application can ask for more than one. The court decides, where necessary, how the description or sampling takes place (Article 1019b(2)).

MeasureWhat the bailiff doesTypical useProvision
Detailed descriptionDescribes the goods on the spot in an official report: allegedly infringing features, number, weight and size; photos or video can be addedShowing that a product infringesArticle 1019d(1) DCCP
Taking samplesTakes at most three items of each kind into court custody, unless the court decides otherwiseTechnical comparison or testingArticle 1019d(2) DCCP
Evidence seizureSeizes goods, production materials and tools, and documents relating to the infringementShowing the scale: quantities, suppliers, customersArticles 1019b(1) and 1019c DCCP

The Supreme Court describes the detailed description as a variant of the evidence seizure and a less intrusive alternative to it; proportionality and subsidiarity guide the choice (Supreme Court 28 September 2018, Organik/Dow, ECLI:NL:HR:2018:1775, para. 6.2.3).

I ask for the lightest measure that solves your evidence problem. If the question is whether the product infringes, a description with photos and a few samples is usually enough, and quicker to obtain. If the question is how much was sold, to whom and by whom, you need the records and files. Then I ask for a seizure of documents and data, with an IT expert assisting the bailiff. Often I combine both in one application.

Should you warn the infringer first or act without notice?

If the evidence could disappear, act first and write later. A Dutch court can grant leave without hearing the other side, in particular where delay would cause you irreparable harm or there is a demonstrable risk that evidence will be lost (Article 1019b(3) DCCP).

The other side keeps its protection. Under the Directive, it must be notified at the latest straight after the measure is carried out, and it can ask for a review in which it is heard (Article 7(1) Directive 2004/48/EC).

My test is one question: can the evidence disappear? If a Dutch webshop openly sells your product, a test purchase and a clear letter are often enough. If the evidence sits in a warehouse, on a server or with a former distributor, I send no letter until it is secured, and I make that risk concrete in the application. The letter follows the seizure, with the evidence on the table. That makes a settlement easier to discuss.

How is an evidence seizure carried out?

A Dutch bailiff carries out the measure at the place where the goods or documents are. For a description, the bailiff promptly draws up an official report listing the allegedly infringing features, number, weight and size, and stating the court’s leave (Article 1019d(1) DCCP).

Images or sound recordings can form part of that report. Samples go to a custodian appointed by the court, at most three of each kind unless the court decides otherwise (Article 1019d(2)). You have no right to be present when the description is made (Organik/Dow, para. 6.2.5); the bailiff may only involve you to point out the goods (Article 443(2) DCCP, applied through Article 1019d(1)).

You do not need to travel to the Netherlands for the day itself. I arrange the bailiff and, where needed, an IT expert.

Suspect that a Dutch company is selling copies of your product or using your software without a licence? Send me the facts through my page as Dutch intellectual property lawyer. I will tell you which measure fits and what we need from you, before anyone contacts the other side.

What happens after the evidence seizure?

After the seizure the evidence is safe, but you cannot use it yet. You must start the main proceedings within the period the court set, and you need a separate court decision before you may inspect the seized material.

Because the attachment rules apply (Article 1019c(1) DCCP), that period is at least eight days after the seizure, and missing it makes the seizure lapse (Article 700(3) DCCP). In Organik/Dow, a trade secrets case, the parties agreed that a claim for access filed within that period met this requirement (para. 6.1.4); the Supreme Court did not have to decide the point. The safe course is to bring the infringement claim itself within the period.

The leave does not give you access to the seized material; you need a separate claim for that. The Supreme Court has held the same for the leave for a detailed description (Organik/Dow, para. 6.2.5). For access, an IP infringement counts as a legal relationship under Article 194 DCCP (Article 1019a(1) DCCP); the court refuses access insofar as confidential information is not protected (Article 1019a(3)). The seizure lapses automatically once the decision in the main proceedings can no longer be appealed (Article 1019c(2)).

Clients from abroad are often surprised that they cannot see the evidence straight away. I plan around two dates: the deadline in the leave, which I diarise the same day, and access, which we ask the court for separately. Within the deadline I start the case on the infringement, including a claim for access, and, once the evidence is strong enough, summary proceedings (kort geding) to stop the sales. Other routes are in our overview of enforcement of intellectual property rights in the Netherlands.

What are the risks if the court finds no infringement?

If the measure turns out to be unjustified, the court can order you to compensate the other side’s damage. That applies where the seizure was wrongly made or lifted, the measure should not have been taken, or there was no infringement (Article 1019g DCCP).

Any interested party can ask the judge who gave leave to lift the seizure in summary proceedings. Grounds include that your right appears unfounded or the seizure unnecessary (Article 705 DCCP). Measures to preserve evidence may also be made subject to security from the applicant (Article 7(2) Directive 2004/48/EC). The cost rule cuts both ways: in IP cases the losing party is, on request, ordered to pay the winner’s reasonable and proportionate legal costs, unless fairness dictates otherwise (Article 1019h DCCP).

I explain this risk before we start. I keep the application as narrow as your evidence problem requires and support it with what you already have; that limits the risk most. A well-founded seizure is a measured first step, with a plan for what follows.

Practical example: copied filters at a Dutch wholesaler

This is an illustration, not a real case. A German maker of industrial filters with a registered trade mark finds filters bearing its mark in a Dutch wholesaler’s webshop at half the price. It does not know their source or how many were sold.

  1. The manufacturer makes a test purchase and sends us the product, the invoice and photos of the webshop with dates. It sends no letter.
  2. We apply for leave for a detailed description and samples of the stock, and for a seizure of the purchase and sales records relating to the filters.
  3. The bailiff carries out the measures at the wholesaler’s warehouse on one day, assisted by an IT expert for the records.
  4. Within the deadline set in the leave, we start main proceedings on the infringement, including a claim for access to the seized records, and assess with the manufacturer whether to seek an injunction in summary proceedings as well.

When should you instruct a Dutch lawyer?

Instruct a Dutch lawyer as soon as you suspect an infringement in the Netherlands, before anyone contacts the other side. The application for leave must be signed by a lawyer (advocaat) (Article 278(3) DCCP), so you need Dutch counsel for this step.

As a Dutch IP lawyer at MAAK Advocaten, I would rather hear from you before the first letter than after it. I wrote a commentary on the attachment provisions of the Dutch Code of Civil Procedure (articles 700 to 724), which also govern how an IP evidence seizure is laid and lifted. You know your product; we take care of the seizure, and we coordinate with your lawyer at home if you have one.

A published example: I was one of the lawyers for the appellant, a Belgian company, in a trade mark appeal against a Dutch company. In its judgment of 19 June 2018 the Amsterdam Court of Appeal set aside the first-instance judgment and, among other things, ordered the Dutch company to cease, within six months of service, every infringement of the Belgian company’s trade mark rights (Amsterdam Court of Appeal 19 June 2018, ECLI:NL:GHAMS:2018:2032). That was a trade mark case on the merits, not an evidence seizure.

How does MAAK Advocaten handle an IP evidence seizure?

We work in four steps, from the first assessment to the use of the evidence, and we act in first instance and on appeal. The legal basis for each step is Article 1019b to 1019d DCCP and the attachment rules that apply through Article 1019c(1).

  1. We assess with you whether the infringement is plausible enough and which measure fits.
  2. I draft the application and arrange the bailiff and, where needed, an IT expert.
  3. After the seizure we monitor the deadline and claim access to the material.
  4. We use the evidence for what it is meant for: stopping the infringement and recovering your damage, through a settlement or in court.

Frequently asked questions

What is an evidence seizure in the Netherlands?

An evidence seizure is a measure in which a Dutch bailiff, with leave from the preliminary relief judge, secures goods, materials or documents that can prove an IP infringement. In IP cases it rests on Article 1019b of the Dutch Code of Civil Procedure.

Is the other party heard before an evidence seizure?

Not necessarily. The court can grant leave without hearing the other party, in particular where delay would cause irreparable harm or there is a demonstrable risk that evidence will be lost. The other party can then ask the judge who gave leave to lift the seizure in summary proceedings.

When can I see the seized evidence?

Only after a court has decided that you are entitled to inspect it. The leave itself gives no right to inspection or copies. You claim access separately, and the court refuses it insofar as the other side’s confidential information is not protected.

Is a Dutch evidence seizure the same as a UK search order?

No. Both aim to stop evidence from disappearing, but the Dutch measure is carried out by a bailiff, and you normally do not see the material until a court allows access. You must make the infringement sufficiently plausible to the preliminary relief judge.

Do I need a Dutch lawyer for an evidence seizure?

Yes. The application for leave to the preliminary relief judge must be signed by a lawyer, so a foreign rights holder needs Dutch counsel. Involve that lawyer before any letter goes to the other side, because a warning can make the evidence disappear.

Primary sources

Do you suspect an IP infringement in the Netherlands and want the evidence secured before the other side is warned? Put your situation to me: call +31 20 210 31 38 or send your question through my page as Dutch intellectual property lawyer. — Arnout Gieske

Arnout Gieske

Dutch lawyer

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