Trademark Dispute in the Netherlands: What to Do?

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A trademark dispute in the Netherlands usually turns on one question: does another business use a sign identical or similar to a registered Benelux trademark in a way that Article 2.20(2) of the Benelux Convention on Intellectual Property (BCIP) prohibits? The holder can claim an injunction and damages. The other side can defend itself, for example by relying on non-use, invalidity or a statutory limitation.

Trademarks with a reputation in the Benelux enjoy extended protection, even for dissimilar goods or services (Article 2.20(2)(c) of the Benelux Convention on Intellectual Property, BCIP). A similar logic applies to patent infringement in the Netherlands, though the underlying right and test differ. Our Dutch IP-lawyer for trademark law and Trade Name Law in the Netherlands explains the most important aspects below.

In the Netherlands, a trademark dispute typically arises when another business uses a sign that is similar to your registered trademark. For a similar sign, the holder can act if it is used for identical or similar goods or services and there is a likelihood of confusion on the part of the public, including confusion through association with the earlier mark (Article 2.20(2)(b) BCIP). A dispute can also concern the trademark itself: whether it should be refused, revoked or declared invalid. Act promptly once you identify an infringement.

Trademark protection in the Benelux is based on registration, either with the Benelux Office for Intellectual Property (BOIP) or, for an EU trade mark, with the European Union Intellectual Property Office (EUIPO). A Benelux registration lasts ten years from the filing date and can be renewed for further periods of ten years (Article 2.9 BCIP). Without a registration, you cannot claim protection for a sign as a trademark, whatever claim you bring, except for a mark that is well known within the meaning of Article 6bis of the Paris Convention (Article 2.19(1) BCIP). Other rights, such as copyright or a trade name, may still offer some protection.

What Constitutes Trademark Infringement Under Dutch Law?

Trademark infringement in the Netherlands occurs when a third party, without consent, uses an identical sign for identical goods or services, or an identical or similar sign for identical or similar goods or services where there is a likelihood of confusion (Article 2.20(2)(a) and (b) BCIP). A trademark with a reputation, and use of a sign other than to distinguish goods or services, are covered by grounds (c) and (d). The similarity between the signs and between the goods or services is central to the assessment.

Courts assess this based on visual, phonetic, and conceptual similarities.

Trademarks with a reputation receive enhanced protection. The holder of a trademark with a reputation in the Benelux can also act against use for different goods or services, where use of the sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the mark (Article 2.20(2)(c) BCIP). A likelihood of confusion is not required for this.

Trademark infringement takes various forms. Article 2.20(3) BCIP gives examples of acts that can be prohibited: affixing the sign to goods or their packaging, offering or selling goods or services under the sign, importing or exporting goods under the sign, using the sign as a trade name or part of one, and using it in business papers and advertising. Online use, for example on social media or in online advertising, can also fall within these acts. The judge assesses all relevant circumstances, whereby the distinctive character and reputation of the earlier mark carry significant weight.

How Do I Establish Trademark Infringement in the Netherlands?

Document thoroughly all forms of infringement by taking screenshots of websites, social media, advertisements, and product photos, accompanied by timestamps and metadata. Collect invoices, packaging materials, and other physical evidence on which the infringing sign is visible. This evidence forms the basis for legal action.

Start by systematically recording the unlawful trademark use. Make detailed screenshots of webshops, social media accounts, and online advertisements where the conflicting mark appears. Document the date, time, and URL of each observation. For physical products, purchase sample items where possible and retain receipts and packaging as evidence.

Gather additional evidence demonstrating the scope of the infringement. Investigate how many products the competitor sells under the infringing mark, which sales channels are used, and what turnover is generated. Case law shows that evidence of actual use worldwide provides an indication of how the applied mark may be used in the Netherlands. Especially when the infringer operates a website accessible to Dutch consumers, this weighs heavily in legal proceedings.

Consult the register of the Benelux Office for Intellectual Property to verify the exact registration details of your mark: the goods and services it covers and the date on which the registration procedure was completed. That date matters. If the procedure was completed at least five years before you bring a claim, the other party can ask you to prove genuine use of your mark in the Benelux in the five years before the claim, or valid reasons for non-use (Article 2.23ter BCIP). Also check whether the competitor has its own registration, and whether it was filed before or after yours.

What Burden of Proof Rests on the Trademark Holder According to Dutch Legislation?

As a rule, the party relying on the legal consequences of facts it asserts must prove those facts (Article 150 Dutch Code of Civil Procedure). For a claim based on a trademark with a reputation, the holder must therefore show that the use of the sign, without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the mark (Article 2.20(2)(c) BCIP). According to the EU case law described below, actual harm does not always have to be shown; a serious risk of such advantage or detriment can suffice.

The court expects logical conclusions based on a probability analysis, taking into account usual practices in the relevant commercial sector. For marks with an exceptionally high reputation, the non-hypothetical chance of taking advantage can be so obvious that no other factual element needs to be presented. For example, courts have ruled that boxes and bottles of imitation perfumes used for advertising purposes provide unfair advantage to the producer.

When you initiate a dispute, you must present elements demonstrating a serious risk that trademark infringement will occur in the future. Specifically, this means that evidence of commercial use of the conflicting mark, even outside the Netherlands, can be considered. The EU General Court has determined that actual use of a mark with a special presentation outside the European Union, unless proven otherwise, can lead to the conclusion that a serious risk exists for identical use within the Netherlands.

Online use of a sign can be use in the course of trade, but it only infringes if the conditions of Article 2.20(2) BCIP are met. Collecting digital evidence from websites, webshops and social media where the conflicting sign is used is therefore essential. The burden can also fall on you: if the other party asks, you must prove genuine use of your own mark (Article 2.23ter BCIP).

Send first a formal cease and desist letter to the infringer identifying the unlawful trademark use and setting a deadline for cessation. This letter should contain a clear deadline, typically between 14 and 21 days, within which the opposing party must cease use.

Moreover, state the consequences of non-compliance, such as initiating summary proceedings or full proceedings.

The warning letter also shows that you actively oppose the infringement. Under the current Benelux rules, the specific consequence of toleration concerns a later registered trademark: if you knowingly tolerate its use for five consecutive years, you can no longer have it declared invalid on the basis of your earlier mark for the goods or services for which it was used, unless it was filed in bad faith (Article 2.30septies(1) BCIP). Waiting can also undermine the urgency required for summary proceedings. Swift action after identifying an infringement is therefore important.

Consider engaging a lawyer specialising in trademark law to draft the warning letter. A lawyer can analyse the legal position, including the defences the other party may raise, and advise on the most effective strategy. A well-founded warning letter can lead to a settlement without proceedings.

If the other party does not respond adequately or continues the use, you can start summary proceedings (kort geding) before the preliminary relief judge in urgent cases (Article 254(1) Dutch Code of Civil Procedure). The judge usually rules within a few weeks. For a final decision, you start proceedings on the merits at the district court. Before the district court, parties must be represented by a lawyer (Article 79(2)); in summary proceedings, the defendant may also appear in person (Article 255(1)). The measures and procedure are explained in more detail on our page about enforcing trademark rights in the Netherlands.

How Does an Opposition Procedure Work in Dutch Law?

An opposition procedure starts when you object to the registration of a new mark that conflicts with your registered trademark rights. You must file the opposition in writing with the Benelux Office for Intellectual Property within two months of the publication of the application (Article 2.14(1) BCIP). The opposition is only deemed filed once the fees have been paid (Article 2.14(4)).

This deadline is fatal, making timely action essential.

Opposing a trademark registration requires careful argumentation. You must demonstrate a relative ground under Article 2.2ter BCIP: for example, that the applied mark is identical to your earlier mark for identical goods or services, that there is a likelihood of confusion with your earlier mark, or, if your earlier mark has a reputation, that use of the applied mark without due cause would take unfair advantage of or be detrimental to its distinctive character or reputation. The degree of recognition and distinctive character of your mark plays a crucial role. The greater the distinctive character and recognition, the easier a successful opposition can be established.

During the opposition procedure, BOIP compares both marks and the goods or services concerned. A global assessment of all relevant circumstances determines the outcome. If the five-year use period of your earlier mark had expired on the filing or priority date of the contested mark, the applicant can ask you to prove genuine use of your mark in the five years before that date, or valid reasons for non-use (Article 2.16bis BCIP).

If the opposition succeeds, BOIP refuses to register the mark in whole or in part (Article 2.16(4) BCIP). The losing party is ordered to pay costs as set by the implementing regulations, unless the opposition is only partly upheld (Article 2.16(5)). A party can appeal BOIP’s final decision to the Benelux Court of Justice within two months of notification (Article 1.15bis BCIP). The parties can also jointly ask BOIP to suspend the procedure, for example to negotiate a settlement agreement with arrangements on trademark use and territory (Article 2.16(2)(d)).

How Can You Challenge a Registered Trademark in the Netherlands?

A trademark dispute does not always concern use. You can also attack the registration itself. A trademark can be declared invalid on absolute grounds, for example if it lacks any distinctive character or consists exclusively of descriptive indications (Article 2.2bis(1) BCIP), or if the application was filed in bad faith (Article 2.2bis(2)). It can also be declared invalid on relative grounds, on the basis of an earlier trademark (Article 2.2ter BCIP).

A trademark can be revoked if it has not been put to genuine use for five years without a valid reason, or if, as a result of the holder’s acts or inactivity, it has become the common name in the trade for a registered product or service, or if, as a result of the use made of it by the holder or with the holder’s consent, it is liable to mislead the public, for example as to the nature, quality or geographical origin of the goods or services (Article 2.23bis and Article 2.27 BCIP). You can bring an invalidity or revocation action before the court (Article 2.28 BCIP) or file it with BOIP (Article 2.30bis BCIP). In an invalidity action based on an earlier registered mark, the holder of the later mark can ask for proof of genuine use of the earlier mark (Article 2.30quinquies BCIP).

There is a time bar for invalidity based on an earlier mark. If the holder of the earlier mark has knowingly tolerated the use of the later registered mark for five consecutive years, it can no longer seek invalidity on that basis for the goods or services for which the later mark was used, unless the later mark was filed in bad faith (Article 2.30septies(1) BCIP).

Which Defences Can You Raise Against a Trademark Claim in the Netherlands?

If you receive a warning letter or a summons, first check whether the claim holds up. Common defences are:

  • Non-use: the holder can only prohibit use to the extent its rights could not be revoked for non-use when the claim is brought. If the registration procedure was completed at least five years earlier, you can ask the holder to prove genuine use in the five years before the claim (Article 2.23ter BCIP).
  • Invalidity: you can ask the court or BOIP to declare the trademark invalid on absolute or relative grounds (Articles 2.28 and 2.30bis BCIP).
  • No infringement: the signs or the goods and services are not similar enough, there is no likelihood of confusion, or the trademark has no reputation in the Benelux (Article 2.20(2) BCIP).
  • Statutory limitations: use of your own name or address as a natural person, of signs or indications that are not distinctive or that concern the kind, quality, quantity, intended purpose, value, geographical origin, time of production or other characteristics of goods or services, or of the trademark to refer to the holder’s goods or services, for example for accessories or spare parts, provided the use is in accordance with honest practices in industrial or commercial matters (Article 2.23(1) BCIP).
  • Exhaustion: goods that the holder, or someone with its consent, has put on the market in the European Economic Area under the trademark, unless the holder has legitimate reasons to oppose further commercialisation, especially where the condition of the goods has been changed or impaired (Article 2.23(3) BCIP).
  • Earlier rights: the exclusive right applies without prejudice to rights acquired before the filing or priority date of the trademark (Article 2.20(2) BCIP), and an earlier right of merely local significance can be used within the territory where it is recognised (Article 2.23(2)).

There is no statutory duty to reply to a warning letter, but a reasoned response can prevent proceedings. Keep the cost rule in mind: in IP cases, the losing party is, on request, ordered to pay the reasonable and proportionate legal costs of the successful party, unless fairness opposes this (Article 1019h Dutch Code of Civil Procedure).

You can bring various claims to enforce your trademark rights. First, you can demand that the infringer stop using the conflicting sign. You can also claim compensation for any damage the infringement causes you (Article 2.21(1) BCIP); that damage must be substantiated.

When setting damages, the court takes into account all appropriate aspects, such as lost profits, the unfair profits made by the infringer and, in appropriate cases, non-economic harm; alternatively, it can award a lump sum based on at least the royalties that would have been due under a licence (Article 2.21(2) BCIP). Careful calculation and substantiation are therefore necessary.

The court can also order infringing goods to be handed over to you as a form of damages (Article 2.21(3) BCIP), or to be recalled, permanently removed from the channels of commerce or destroyed, taking into account the proportionality between the seriousness of the infringement and the measures (Article 2.22(1) BCIP). Instead of or in addition to damages, you can claim surrender of the profits made through the infringing use, together with an account of those profits. The court rejects that claim if the use was not in bad faith or the circumstances do not justify such an order (Article 2.21(4)).

In urgent situations, you can start summary proceedings for a provisional injunction. The court can attach a penalty payment (dwangsom) to the injunction and sets its amount (Articles 611a and 611b Dutch Code of Civil Procedure). Infringing goods can also be seized by a bailiff, but a prejudgment seizure requires leave from the preliminary relief judge (Article 700(1); Article 2.22(2) BCIP).

For a final decision, start proceedings on the merits at the district court; these take considerably longer than summary proceedings. In 2026, the court fee at the district court for a claim of indeterminate value, such as an injunction, is €735 for a legal entity and €341 for a natural person. For monetary claims, the fee depends on the amount and reaches €10,487 and €2,803 respectively for claims above €1 million; a legal entity pays the lower fee of €7,062 if a natural person is a party to the case (Article 3(6) and Court Fees Act in Civil Cases (Wet griffierechten burgerlijke zaken), annex).

When Is an Amicable Settlement Possible in the Netherlands?

An amicable settlement offers advantages when both parties are willing to negotiate regarding trademark use, territorial division, or financial compensation. Many trademark disputes are resolved through a settlement agreement, avoiding protracted and costly proceedings. This agreement definitively regulates the rights and obligations of both parties.

Amicable settlements are particularly sensible when your legal position is not unequivocally strong, or when litigation costs exceed potential benefits. For example, if the conflicting mark is only used in a limited geographic region, territorial demarcation can offer a workable solution. Additionally, parties can make arrangements regarding specific product categories or visual modifications to the conflicting mark.

A settlement agreement must be carefully drafted by a lawyer specializing in trademark law. This agreement typically contains clauses regarding future trademark use, potential damages, confidentiality, and penalty provisions for violation. Furthermore, arrangements are often made for procedural costs and legal fees, whereby parties each bear their own costs or agree on a distribution key.

Negotiation regarding a settlement usually proceeds through a lawyer who communicates with the opposing party on your behalf. This legal support ensures that your interests are optimally protected and that the agreement is legally sound. Professional guidance also prevents you from conceding too much or overlooking essential points.

How Do You Protect Your Trademark Rights Preventively in Dutch Law?

Register your trademark timely with the Benelux Office for Intellectual Property or the EU Intellectual Property Office for European protection. A registered trademark grants exclusive rights for ten years, renewable indefinitely. Without a registration, you cannot claim protection for a sign as a trademark, except for a mark that is well known within the meaning of Article 6bis Paris Convention (Article 2.19(1) BCIP); other rights, such as copyright or a trade name, may still offer some protection.

Actively monitor the trademark register and the market for conflicting trademark applications. Subscribe to alert services that notify you of new applications resembling your mark. This enables you to file an opposition within the two-month opposition period (Article 2.14(1) BCIP). If you discover a conflicting registration later, an invalidity action may still be possible (Articles 2.28 and 2.30bis BCIP).

Enforce your trademark rights consistently. If you knowingly tolerate the use of a later registered trademark for five consecutive years, you can no longer have it declared invalid on the basis of your earlier mark for the goods or services for which it was used, unless it was filed in bad faith (Article 2.30septies BCIP). Document and contest infringements that matter to your business.

Protect your trademark internationally if you export or operate online outside the Netherlands. National trademark registrations only provide protection within their own territory, whereas an EU trademark provides protection in all 27 member states. For protection in other countries, you can file an international application under the Madrid Protocol, based on a basic application or registration such as a Benelux trademark, and designate in one application the countries of the Madrid system in which you want protection (Article 2 Madrid Protocol; Article 2.10 BCIP).

What Role Do Online Evidence Materials Play in the Netherlands?

Online evidence plays a major role in many trademark proceedings. Under Dutch procedural law, evidence can be provided by any means and the court assesses it freely, unless the law provides otherwise (Article 152 Dutch Code of Civil Procedure). Screenshots showing the date, time and URL are therefore useful.

Use of a sign on a website accessible from the Benelux can be relevant even when physical sales are limited, but whether it infringes depends on the conditions of Article 2.20(2) BCIP.

The EU General Court has determined that actual use of a trademark on a website outside the European Union may be considered when establishing whether a future risk of taking advantage exists within the Netherlands. For example, when a competitor uses a mark on a website in Arabic but also operates an English version with a ‘.com’ extension, this may indicate intentions to reach Dutch consumers. This logical conclusion strengthens the trademark holder’s legal position.

Therefore, systematically collect online evidence as soon as you identify a possible infringement. Screenshot all relevant web pages, including product descriptions, prices and contact information. Store this evidence digitally. For additional certainty, you can have a bailiff record the findings in an official report.

Digital evidence also provides insight into the scope of the infringement. Through web analytics tools and social media statistics, you can map the distribution and impact of the infringing mark. This information supports your claim for damages and profit surrender, as you can present concrete figures regarding turnover and reach of the infringer.

Example (fictitious): A clothing company discovers that a competitor uses a virtually identical logo on sportswear and advertises it on Instagram. The company documents the posts, takes screenshots of the webshop and collects advertising material. Through a lawyer, it sends a warning letter with a 14-day deadline. When the competitor does not respond, the company starts summary proceedings. If the judge finds infringement, the judge can prohibit further use, attach a penalty payment and order the competitor to pay reasonable and proportionate legal costs (Articles 611a and 1019h Dutch Code of Civil Procedure).

What Are the Costs of a Trademark Dispute in the Netherlands?

The costs of a trademark dispute vary considerably depending on the chosen legal strategy. A warning letter through a lawyer is usually the least expensive step. Ask for a cost estimate in advance.

This step can pay off, as an infringer may stop after receiving a well-founded warning letter.

Summary proceedings cost more, because of court fees and lawyers’ fees for preparation, procedural documents and the hearing. The court fee at the district court for a claim of indeterminate value, such as an injunction, is €735 for a legal entity and €341 for a natural person (2026 rates; Court Fees Act in Civil Cases (Wet griffierechten burgerlijke zaken), annex).

Proceedings on the merits generally cost more than summary proceedings, because they involve more extensive written submissions and sometimes witness hearings. In IP cases, the losing party is, on request, ordered to pay the reasonable and proportionate legal costs of the successful party, unless fairness opposes this (Article 1019h Dutch Code of Civil Procedure). That is more than the fixed scale used in ordinary civil cases, so losing can be expensive.

Therefore, carefully consider whether expected benefits outweigh legal costs. Engage a specialized lawyer timely for a realistic assessment of your legal position and likelihood of success. This advice prevents costly proceedings with uncertain outcomes.

Are you dealing with a trademark dispute or do you suspect your trademark is being infringed? Our specialized lawyers analyze your legal position and advise on the most effective strategy. From cease and desist letter to full proceedings, we protect your interests professionally and results-oriented.

How Do You Prevent Acquiescence Under Dutch Law?

Under the current Benelux rules, acquiescence (rechtsverwerking wegens gedogen) concerns a later registered trademark. If you, as holder of an earlier trademark, have knowingly tolerated the use of a later registered trademark for five consecutive years, you can no longer have that later mark declared invalid on the basis of your earlier mark for the goods or services for which it was used, unless it was filed in bad faith (Article 2.30septies(1) BCIP).

In that case, the holder of the later mark cannot object to the use of your earlier right either (Article 2.30septies(2)). The former, broader provision on loss of rights through toleration of use (Article 2.24 BCIP) was repealed with effect from 1 March 2019. Delay can still harm your position in other ways, for example by undermining the urgency required for summary proceedings.

Prevent acquiescence by responding immediately as soon as you identify trademark infringement. Send a formal cease and desist letter within several weeks identifying the unlawful use and demanding cessation. Document all correspondence and retain evidence of your timely action. This documentation demonstrates that you actively enforce your trademark rights and do not permit others to use your mark unlawfully.

If you decide not to take action for now, for example for strategic reasons or during negotiations, record the arrangement in writing, for example in a licence (Article 2.32 BCIP) or a coexistence agreement. Set out the conditions of use, an end date and termination clauses.

Continuously monitor the use of your mark by periodically searching online for potential infringements. Establish a reporting system within your organization so that sales representatives, customers, and distributors can immediately report potential trademark infringement. This proactive attitude ensures you do not unknowingly permit others to use your mark for years.

What Special Protection Do Well-Known Marks Enjoy in the Netherlands?

Trademarks with a reputation receive enhanced protection. Under Article 2.20(2)(c) BCIP, the holder of a trademark with a reputation in the Benelux can act against use of an identical or similar sign, even for completely different goods or services, where the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the mark. This is different from a mark that is well known within the meaning of Article 6bis Paris Convention, which its holder can invoke even without a registration (Article 2.19(1) BCIP).

For example, a cosmetics brand with a reputation in the Benelux may be able to act against use of a similar sign for clothing or electronics.

Protection also applies against dilution, whereby the distinctive character of the mark with a reputation is impaired by its association with different types of products or services. Courts assess whether the economic behavior of the average consumer is influenced by use of the junior mark.

The holder of a trademark with a reputation can also act against use that is detrimental to the reputation of the mark, for example use in low-quality or offensive contexts that damages its image (Article 2.20(2)(c) BCIP). Reputation is an essential commercial asset for such marks.

To rely on this protection, you must show that your mark has a reputation among the relevant public in the Benelux. Evidence for this includes market research, turnover figures, advertising expenditure and media coverage.

Frequently asked questions about trademark disputes in the Netherlands

What is a trademark dispute?

A trademark dispute is a conflict about the use or the registration of a trademark. It can concern infringement (Article 2.20 BCIP), an opposition against a new application at BOIP (Article 2.14 BCIP), or an action to have a registered trademark declared invalid or revoked, before the court or BOIP (Articles 2.28 and 2.30bis BCIP).

Which court decides a trademark dispute in the Netherlands?

Infringement cases are heard by the civil courts. Unless otherwise expressly agreed, territorial jurisdiction is determined by the defendant’s domicile or by the place where the obligation in dispute arose or was or should be performed; the place where the trademark was filed or registered can never by itself establish jurisdiction (Article 4.6 BCIP). Oppositions and administrative invalidity or revocation actions are decided by BOIP, with an appeal to the Benelux Court of Justice (Article 1.15bis BCIP).

How much compensation can you claim for trademark infringement in the Netherlands?

There are no fixed amounts. The court sets damages on the basis of all appropriate aspects, such as lost profits and the infringer’s unfair profits, or as a lump sum based on at least the royalties that would have been due under a licence (Article 2.21(2) BCIP). Instead of or in addition to damages, you can claim surrender of profits, but the court rejects that claim if the use was not in bad faith or the circumstances do not justify it (Article 2.21(4)). Reasonable and proportionate legal costs can be claimed as well (Article 1019h Dutch Code of Civil Procedure).

What should you do if you receive a trademark complaint?

Take it seriously and respond in good time. Check whether the trademark is valid and in use, whether the signs and the goods or services really are similar, and whether a statutory limitation applies (Articles 2.20, 2.23 and 2.23ter BCIP). There is no statutory duty to reply, but in urgent cases the holder can obtain an order to prevent a threatened infringement without you being heard first (Article 1019e Dutch Code of Civil Procedure), and the losing party must on request pay the other side’s reasonable and proportionate legal costs (Article 1019h).

Do you need a lawyer for a trademark dispute?

In proceedings before the district court, parties must be represented by a lawyer (Article 79(2) Dutch Code of Civil Procedure); in summary proceedings, the defendant may also appear in person (Article 255(1)). For an opposition or an invalidity or revocation action at BOIP, check BOIP’s rules on representation; specialist advice is advisable given the strict two-month opposition period.

Primary sources

Contact our law firm for personal legal advice regarding your specific trademark dispute. Our specialists assess your legal position, collect evidence, and represent you effectively in negotiations or proceedings. Timely legal assistance maximizes your chances of successfully enforcing your trademark rights.

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