Our Dutch law firm specialises in intellectual property law (intellectueel eigendomsrecht). We support organisations with the registration and recording of rights, and act as litigation lawyers in infringement matters relating to copyright, trademark law, design law, trade name law and patent law under Dutch law.
Intellectual property law (IP law) protects creative and technical achievements against unauthorised use by third parties. The law thereby grants the right holder an exclusive right to exploit its trademark, design, invention or work. For businesses in the manufacturing and technology industry, this is rarely abstract: a copied product design namely costs turnover and market share within weeks. Our specialised IP lawyers in Amsterdam advise and litigate daily on copyright, trademark law, design law, trade name law and patent law under Dutch law. Below you can read, for each sub-area, what the law arranges, which time limits apply and how you act against infringement. Do you need legal advice? Feel free to contact our intellectual property specialists.
What is intellectual property law under Dutch law?
Intellectual property law is the collective name for rights to creative and technical achievements. The law grants a creator, designer or entrepreneur an exclusive right, for example to a text, logo, product design or invention. Unlike a physical object, this concerns an intangible asset. Namely, it is not the carrier, such as the book or the machine, that counts, but the creative or technical content of it.
Some IP rights arise automatically. Think, for example, of copyright: as soon as a work meets the statutory conditions, it enjoys protection. Other rights, however, require formal registration before protection takes effect. This applies in particular to trademark law and design law. Whoever does not know this distinction runs the risk that a considerable investment in a trademark or product design ultimately remains unprotected. In our overview of the Dutch legal system, we further explain the most important legal concepts.
Which forms of intellectual property does Dutch law distinguish?
Dutch law distinguishes six main forms of intellectual property, namely copyright, trademark law, design law, trade name law, patent law and the right to trade secrets. Each right, however, has its own statutory basis, registration requirement and term of protection.
Copyright (auteursrecht) is the most accessible form of intellectual property under Dutch law, because this right arises automatically as soon as a work bears its own, original character. Copyright is a statutory protection that shields texts, software, photos, logos and other creative work against unauthorised use by third parties, without any registration being required.
Trademark law (merkenrecht), by contrast, protects names, logos and signs by which a business distinguishes its products or services from those of competitors. Unlike copyright, this does require an active step: registration by filing with the Benelux Office for Intellectual Property (BOIP), on the basis of the Benelux Convention on Intellectual Property (BVIE).
Design law (modellenrecht) focuses specifically on the appearance of a product, such as its shape, colour and texture, and is governed by both the BVIE and the Community Design Regulation. Here too: without registration of the design, there is no protection.
Trade name law (handelsnaamrecht) protects the name under which your business presents itself and is laid down in the Trade Names Act (Handelsnaamwet). This right, like copyright, arises automatically through the actual use of the name in commerce, without a registration obligation.
Patent law (octrooirecht) protects technical inventions that meet the requirements of novelty and inventiveness, in accordance with the Dutch Patents Act 1995 (Rijksoctrooiwet 1995).
Trade secrets form the last, but certainly not least important, category within IP law. A trade secret is confidential know-how or business information protected under the Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen), provided reasonable confidentiality measures have been taken. Registration is not relevant here; protection applies as long as the information remains secret and commercially valuable.
Given the mutual differences in statutory basis, registration requirement and term of protection, our specialised lawyers in Amsterdam advise organisations to have their IP portfolio reviewed periodically. Do you have doubts about which rights apply to your business assets? Contact our intellectual property specialists for tailored legal advice.
There is also plant breeders’ rights (kwekersrecht). This is a specific variant that protects new plant varieties, and it is particularly relevant to the agricultural and horticultural sector.
What is copyright and when does this protection arise under Dutch law?
Copyright is the exclusive right of a creator to make its work public and to reproduce it. This right arises automatically as soon as the work has an original character. In accordance with articles 1 and 10 of the Dutch Copyright Act (Auteurswet), the work must bear the personal stamp of the creator. Registration is therefore not necessary.
Consequently, a work generally enjoys protection until 70 years after the death of the creator, which makes it one of the longest-running IP rights. What exactly counts as original character and how the term of copyright protection runs, you can read in our in-depth articles.
In practice, copyright plays a role in a wide range of works. Think, for example, of software and code, photos, and logos and house style. Do you work as a client with freelance designers or copywriters? Then record arrangements about copyright in advance, because copyright does not automatically vest in the client. If someone copies your work without permission, you as the right holder can act against the infringer. Our lawyers also assist you where there is infringement of copyright as a tort (onrechtmatige daad), and advise on when you can claim surrender of profits (winstafdracht) after a copyright infringement.
How do you protect your trademark through Dutch trademark law?
You protect your trademark by filing it with the Benelux Office for Intellectual Property (BOIP). For broader protection, you can also file with the EUIPO or WIPO. After registration, you have an exclusive right to your brand name, logo or figurative mark for ten years. In accordance with article 2.2 BVIE, this right namely arises only through registration, unlike copyright, which arises through use.
After a trademark filing, an opposition period of two months usually applies, within which holders of earlier trademarks can object. Ultimately, a successful filing results in a trademark registration that you can renew indefinitely, each time for periods of ten years. We guide entrepreneurs through the entire process to protect a trademark, including Benelux trademark registration.
Does a third party use a sign without permission that creates a likelihood of confusion (verwarringsgevaar) with your trademark? Then there is trademark infringement. Where an infringement is established, you can bring various actions, such as a cease-and-desist letter (sommatie), a summary procedure (kort geding) or the destruction of infringing products. Our trademark lawyer also advises you on the strategy to follow when you are a party to a trademark dispute.
What is design law and when does a product design qualify for protection in the Netherlands?
Design law protects the appearance of a product or part of it. It is required, however, that the design is new and has an individual character compared with what already existed on the market. Consequently, a registered design enjoys protection for up to 25 years under the BVIE and the Community Design Regulation. An unregistered design, however, is protected for only three years.
Practical example: a Dutch manufacturer of precision parts for the machinery industry discovered that a competitor was placing an almost identical part on the market. The housing namely had the same specific design. Because the design had been registered as a model in time, the manufacturer could start a summary procedure within a few weeks. The court imposed an injunction on the competitor and ordered the recall of the infringing parts. This example illustrates why timely registration of a product design, particularly in the manufacturing industry, can be decisive for swift and effective enforcement.
You can read more about the legal protection of design and model rights in our in-depth article. Our design law specialists are happy to advise you on registration and enforcement.
What does trade name law involve and when is there a likelihood of confusion in the Netherlands?
Trade name law protects the name under which a business actually presents itself. This right namely arises through the actual use of that name, not through registration in the commercial register. In accordance with article 5 of the Trade Names Act (Handelsnaamwet), another business may not use a trade name that deviates only slightly from an existing name, insofar as this could cause confusion among the public.
The protection of a trade name can, moreover, be regional in character. Two comparable names in entirely different parts of the country usually do not create a likelihood of confusion. In the same region or sector, however, this is different. We advise you on the protection of, and legal assistance with, infringement of trade name law. Our trade name law specialists assist entrepreneurs with both preventive advice and proceedings.
What is slavish imitation and how does it differ from an IP right under Dutch law?
Slavish imitation (slaafse nabootsing) is not a separate IP right, but a form of tort under article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek). This occurs when a product is imitated unnecessarily in such a way that avoidable confusion arises among the public, while an equally sound and usable alternative design was possible. This doctrine therefore offers a solution for products that do not, or no longer, fall under a registered design right.
Particularly in markets with many similar products, such as consumer goods and machine parts, this doctrine proves valuable in practice. Our specialists are happy to assess whether there is imitation in your situation and how you best counter it.
How do you protect trade secrets and confidential know-how under Dutch law?
You protect trade secrets first and foremost by taking reasonable confidentiality measures. Think, for example, of a confidentiality agreement with employees and business partners. In addition, the Trade Secrets Protection Act offers protection; this act implements European Directive 2016/943. A secret remains protected as long as the information is not generally known, has commercial value, and you take reasonable measures to keep it secret.
Unlike trademarks or designs, registration is not possible here, nor is it required. Protection, however, stands or falls with the quality of your contractual arrangements. Our lawyers also draw up a watertight non-disclosure agreement (NDA) for you, or advise on the protection of secret business know-how.
What is patent law and when does an invention qualify for patent protection in the Netherlands?
Patent law, also called octrooirecht, protects a technical invention. It is required that the invention is new, inventive and industrially applicable. This right arises only after a patent application with the Netherlands Patent Office (Octrooicentrum Nederland) or the European Patent Office. In accordance with article 36 of the Dutch Patents Act 1995 (Rijksoctrooiwet 1995), a patent applies for a maximum of 20 years from the application date, provided you pay the annual renewal fees on time.
A patent dispute usually arises when a competitor applies a patented technology without a licence, particularly in technical sectors with high development costs. We advise and litigate in a patent dispute and in the event of alleged infringement of a patent.
Are you active in the agricultural sector? Then our specialist in plant breeders’ rights may also be relevant to you.
What can you do about an infringement of your intellectual property rights in the Netherlands?
In the event of an infringement of your intellectual property rights, you usually go through a fixed series of steps. This runs from gathering evidence to, if necessary, court proceedings. Fast and decisive action is essential here, because damage from counterfeiting or trademark infringement can namely accumulate quickly.
- Gather evidence: record the infringement, for example through screenshots, purchase receipts or a test purchase of the infringing product.
- Send a cease-and-desist letter: in a formal notice (sommatie), your lawyer demands that the infringer cease and continue to refrain from the infringement.
- Negotiate a settlement: this route is often faster and cheaper than proceedings.
- Start a summary procedure: if a settlement does not materialise, a summary procedure (kort geding) can result in an injunction within a few weeks.
- Claim damages: in a full civil trial, you can claim damages for the IP infringement, in addition to any surrender of profits.
- Structural enforcement: in the event of repeated or large-scale infringement, we focus on durable enforcement of intellectual property rights and the fight against counterfeit products.
How long does a summary procedure for IP infringement take and what does a Dutch IP lawyer cost?
A summary procedure for an IP infringement usually takes 2 to 6 weeks, from the writ of summons to the judgment, depending on the urgency and the court’s scheduling. A full civil trial, by contrast, often takes 6 to 12 months, because in it you claim damages or surrender of profits. Therefore, a summary procedure is usually the first choice in the event of acute damage.
The costs of an intellectual property lawyer depend strongly on the complexity of your case. An important difference from regular civil proceedings: the winning party can recover the actual legal costs incurred in IP cases. This follows from article 1019h of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), instead of the usual and much lower fixed cost scale (liquidatietarief). For a Dutch patent case, the costs vary between roughly €20,000 and €70,000, depending on complexity.
Consequently, we always advise you in advance on a realistic cost estimate, tailored to the value of the interest you want to protect.
Why do businesses choose the IP lawyers of MAAK Advocaten in Amsterdam?
Our intellectual property specialists combine in-depth knowledge of Dutch and European IP law with a practical focus on the manufacturing and technology industry. In this sector, trademarks, designs and know-how usually form the core of the business value. Therefore, we advise not only reactively in a dispute, but also preventively on contracts, licences and registrations, so that you prevent an infringement in the first place.
Ultimately, what counts most for our clients is results: a swift cease-and-desist letter, a promising summary procedure, or clear advice with which you remove a business risk. Explore the broader expertise of our law firm in Amsterdam, or meet our intellectual property lawyer. For internationally operating businesses, we also have a German desk.
Would you like to have your trademark, design or work protected, or are you dealing with an infringement? Then contact our specialised lawyers in Amsterdam without obligation for tailored legal advice, on +31 (0)20 210 31 38 or by email.
Frequently asked questions about intellectual property law in the Netherlands
What is the difference between copyright and trademark law?
Copyright protects a concrete work, such as a text, photo or design, and arises automatically. Trademark law, by contrast, protects a sign by which a business distinguishes its products or services, and arises only after registration. We explain the difference between copyright and trademark law further in a separate article.
What is the difference between copyright and patent law?
Copyright protects the concrete, creative elaboration of a work. Patent law, by contrast, protects, particularly in technical sectors, an invention that is new, inventive and industrially applicable.
Can I protect an idea through intellectual property law?
No, a mere idea does not, in itself, qualify for IP protection. Only when you elaborate an idea into a concrete work, design or sign can copyright, design law or trademark law apply. We explain how you can nevertheless protect an idea as well as possible.
Is software protected by copyright under Dutch law?
Yes, software falls under the Dutch Copyright Act as soon as the program code has an original character. Registration is not required for this. You can read more about how to protect software legally in our article on the subject.
What is the difference between a copyright licence and a trademark licence?
A copyright licence gives permission to use a specific work. A trademark licence, by contrast, gives permission to use a registered trademark, usually under strict quality and use conditions.
What are portrait rights and when may a photo not simply be used?
Portrait rights (portretrecht) give a portrayed person, in certain circumstances, the right to oppose publication of their image, even where the photographer is the copyright holder. Read more about portrait rights and what to do in the event of infringement.
Can reputational damage be claimed in the event of an IP infringement?
Yes, it can. In addition to direct damages and surrender of profits, you can, in certain circumstances, also claim reputational damage. This applies, for example, when counterfeiting of inferior quality harms the image of the original brand.
May I use third-party content under licence for my website?
Yes, provided you have obtained a valid licence from the right holder. Without a licence, you namely run the risk of a copyright infringement. We advise on the licence on content and draw up the accompanying agreements.
