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Profit disgorgement under Dutch law (winstafdracht) means that a court orders a copyright infringer to hand over the profit made from the infringement and to render account of it (Article 27a Dutch Copyright Act). A foreign rights holder whose photos, software, texts or designs are sold by a Dutch company can claim this in addition to damages. A Dutch lawyer helps decide which claim yields more.
This page explains the legal basis, how profit is established, how it compares with damages and how the claim works for trademarks and plant varieties. General enforcement steps are covered on our main page on enforcement of intellectual property rights in the Netherlands, and the basics of copyright on our page on copyright law in the Netherlands.
What is the legal basis for profit disgorgement under Dutch copyright law?
Article 27a of the Dutch Copyright Act. In addition to damages, the creator or his successor in title can claim that the infringer surrenders the profit enjoyed as a result of the infringement and renders account of it (Article 27a(1) Dutch Copyright Act).
Dutch law uses its own concept here. The claim is not a form of punitive damages. It is a statutory claim against the infringer, decided by the Dutch court on the basis of the infringer’s own figures. Similar claims exist in other Dutch intellectual property laws, with different conditions (see the table below).
How does profit disgorgement differ from damages?
Damages compensate your loss, such as lost sales or a missed license fee. Profit disgorgement looks at the infringer’s side: what he earned from the infringement. The two can differ greatly, which is why the choice matters (Articles 27 and 27a Dutch Copyright Act).
| Damages | Profit disgorgement | |
|---|---|---|
| Looks at | Your loss | The infringer’s profit from the infringement |
| Copyright basis | Art. 27 Aw; lump sum possible (Art. 27(2)) | Art. 27a Aw, with an obligation to render account |
| Useful when | You lost clear sales or a license fee | The infringer earned more than you lost, or your loss is hard to prove |
| Evidence | Your own figures | The infringer’s figures, obtained through an account or access to documents |
If your own loss is hard to prove, a lump sum can also help: in appropriate cases the court can set damages as a fixed amount (Article 27(2)). In general Dutch law, the court may also assess damages at the amount of the profit the liable party made, or part of it (Article 6:104 Dutch Civil Code). Because these claims overlap, decide with your lawyer which combination to bring.
Does profit disgorgement work the same for trademarks, plant varieties and trade secrets?
No. Each act sets its own conditions. Under trademark law the claim fails if the infringer acted in good faith; under plant variety law it replaces damages; trade secret law has no separate profit claim (Article 2.21(4) BCIP, Article 70(6) ZPW).
| Right | Profit claim | Condition | Basis |
|---|---|---|---|
| Copyright | In addition to damages | The profit was enjoyed as a result of the infringement | Art. 27a Aw |
| Benelux trademark | In addition to or instead of damages | The court rejects it if the use was not in bad faith, or if the circumstances do not justify it | Art. 2.21(4) BCIP |
| Plant breeder’s right | Instead of damages | The court may award damages instead if the circumstances do not justify surrender | Art. 70(6) ZPW |
| Trade secret | No separate claim | Damages if the infringer knew or should have known; Article 6:104 BW can apply | Art. 8 Wbb, Art. 6:104 BW |
For trademarks, the infringer’s unfair profit is also one of the factors in assessing damages (Article 2.21(2)(a) BCIP). More on trademark claims on our page on enforcing trademark rights in the Netherlands.
What counts as profit in a Dutch disgorgement claim?
The profit that the infringer enjoyed as a result of the infringement (Article 27a(1) Dutch Copyright Act). That is not simply the full turnover: the court looks at what remains after relevant costs and at which part of the profit is caused by the infringing work.
Typical points of dispute are:
- Which costs may be deducted? Whether only the direct costs of the infringing product or also general overheads may be deducted is a typical point of dispute.
- Which part of the profit is due to the work? If your photograph is one element of a large advertising campaign, the infringer will argue that most of the profit came from other factors.
- Which period? Profit up to the date the infringement stopped, including stock sold after your first letter.
Because the infringer holds the figures, the claim comes with an obligation to render account. The court can order the infringer to render account: a verifiable statement of turnover, costs and profit.
How do you obtain the infringer’s figures?
Through the account under Article 27a, a claim for access to specific documents, and an order to disclose the origin and distribution channels of the goods (Article 27a(1), Article 194 Rv, Article 28(9) Dutch Copyright Act).
- Access to documents. An infringement of an intellectual property right counts as a legal relationship for a claim for access to specific data (Article 1019a(1) Rv with Article 194 Rv). Article 843a Rv, which older texts cite, was repealed on 1 January 2025.
- Evidence seizure. If evidence may disappear, the preliminary relief judge can grant leave to seize or describe infringing goods and related documents, if necessary without hearing the infringer (Article 1019b Rv).
- Information on origin. The court can order the infringer, and certain third parties acting on a commercial scale, to disclose suppliers, customers and quantities (Article 28(9)).
The rules on evidence are explained on our page on evidence in Dutch civil law.
Can a licensee claim the infringer’s profit?
Only to a limited extent. The owner can bring the claim on behalf of the licensee. A licensee can bring it himself only if he stipulated that right from the owner, and can also intervene to obtain a proportionate share of the profit (Article 27a(2) Dutch Copyright Act).
If you take an exclusive license for the Dutch market, agree in the license who may claim profits and how the proceeds are shared. Our page on the copyright license under Dutch law lists the clauses to include.
Which other claims can you combine with profit disgorgement?
An injunction, the surrender or destruction of infringing goods, the surrender of money obtained through the infringement, publication of the judgment and reasonable and proportionate legal costs (Article 28 Dutch Copyright Act, Article 1019h Rv).
- Infringing goods. You can claim them as your property, or demand their withdrawal from circulation, destruction or rendering them unusable, subject to proportionality (Article 28(1) and (8)).
- Money from the infringement. Entrance fees for an infringing performance and other money that was likely obtained through the infringement can be claimed as well (Article 28(2)).
- Publication of the judgment at the infringer’s expense (Article 28(10)).
- Legal costs. The losing party is ordered to pay the reasonable and proportionate legal costs of the winning party, unless fairness requires otherwise (Article 1019h Rv).
What should you do when you discover that someone profits from your work?
Secure evidence of the infringement and its commercial scale, then send a letter demanding that the infringement stop and that the infringer provides figures on quantities, turnover and profit. That letter keeps the choice between damages and surrender of profits open (Article 27a Dutch Copyright Act).
- Document the use: dated screenshots, test purchases, catalogues and the period of use.
- Establish your rights: who made the work, whether you own the copyright or hold an exclusive license, and the registration of any trademark involved.
- Send a demand for cessation, an account of quantities and profit, and the names of suppliers and customers.
- Compare your own loss with the infringer’s likely profit before you choose your claim.
- Go to court if needed: summary proceedings for the injunction, proceedings on the merits for profit and damages.
Practical example: a foreign design studio and a Dutch webshop
Suppose a Danish design studio discovers that a Dutch webshop sells cushions and posters with its illustrations. The studio would normally have charged a modest license fee, so its own loss is limited. The webshop, however, sold the products for two years through several marketplaces.
The studio claims an injunction, an account of sales and the surrender of profit under Article 27a. The account shows the turnover and direct costs per product; the dispute focuses on how much of the profit is due to the illustrations rather than to the products and the webshop’s marketing. A claim for profit can give the studio a stronger negotiating position than a claim for the missed license fee alone.
When should you involve a Dutch lawyer?
Involve a Dutch lawyer as soon as you discover commercial use of your work, before you send the first letter. The choice between damages and profit, and the evidence you secure at the start, determine what you can recover later.
MAAK Advocaten in Amsterdam acts for foreign and Dutch rights holders and for businesses facing infringement claims. We request evidence measures, conduct summary proceedings and proceedings on the merits in first instance and on appeal, and negotiate settlements. Read more about our Dutch intellectual property lawyers, see our intellectual property law hub or contact us.
Frequently asked questions about profit disgorgement under Dutch law
What is profit disgorgement under Dutch copyright law?
It is a claim that the infringer hands over the profit made as a result of a copyright infringement and renders account of it (Article 27a Dutch Copyright Act). The rights holder can bring it in addition to a claim for damages.
Is profit disgorgement better than damages?
It depends on the figures. Profit disgorgement is attractive when the infringer earned more than you lost, or when your own loss is hard to prove. Damages are better when you lost clear sales. The court can also set damages as a lump sum (Article 27(2) Dutch Copyright Act).
Does a trademark owner have to prove bad faith to claim profits?
Under Article 2.21(4) of the Benelux Convention on Intellectual Property, the court rejects a claim for surrender of profits if the use was not in bad faith or if the circumstances do not justify it. For copyright, Article 27a sets no such condition in its text.
How do I find out how much profit an infringer made?
Claim an account of the profit under Article 27a, access to specific documents under Article 194 with Article 1019a Dutch Code of Civil Procedure, and information on origin and distribution channels under Article 28(9) Dutch Copyright Act.
Can I recover my legal costs in an IP case in the Netherlands?
Yes. In intellectual property cases, the losing party is ordered to pay the reasonable and proportionate legal costs of the winning party, unless fairness requires otherwise (Article 1019h Dutch Code of Civil Procedure).
Primary sources
Dutch statutes are only officially available in Dutch, on wetten.overheid.nl. The Benelux Convention on Intellectual Property (BCIP) is also published there in Dutch.
- Dutch Copyright Act (Auteurswet), text in force since 1 January 2026: Article 27, Article 27a, Article 28
- Benelux Convention on Intellectual Property (BCIP): Article 2.21
- Seeds and Planting Materials Act 2005: Article 70; Dutch Trade Secrets Protection Act: Article 8
- Dutch Civil Code: Article 6:104
- Dutch Code of Civil Procedure: Article 194, Article 1019a, Article 1019b, Article 1019h
