What are the causes of counterfeiting and piracy in Netherlands?
The goods from China, Hong Kong are infiltrated in the country, which is a major reason for their presence. They are usually brought in through small parcels.
Which are the goods that most often face counterfeiting and piracy in Netherlands?
Medical supplies, car parts, toys, food stuff, and cosmetics brands are the goods that most often face counterfeiting and piracy in Netherlands.
Does Netherlands have a well-established framework for the enforcement of Intellectual Property Rights (IPRs)?
What are the specific laws/orders/rules laid down in Netherlands for the enforcement of Intellectual Property Rights?
They are as follows:
The Copyright Act and the Neighbouring Rights Act (amended, 2015)
The Benelux Convention on Intellectual Property (trademarks and designs) (as amended up to March 1, 2019)
The Directive (EU) 2016/943 of the European Parliament and of the Council of 8th June 2016 on the Protection of Undisclosed Know-how and Business Information (Trade Secrets) Against their Unlawful Acquisition, Use, and Disclosure (Trade Secrets Act)
The Act of March 18, 1993, Containing Rules on the Protection of Performers, Phonogram Producers and Broadcasting Organizations and Amending the Copyright Act 1912 (Neighbouring Rights Act)
What are the different types of IPRs protected by IPR enforcement in Netherlands?
Trademarks, patents, designs, plant breeders’ rights, copyright database rights, semiconductors are the different types of IPRs protected by IPR enforcement in Netherlands.
What are the general IPR enforcement obligations in Netherlands?
What are the essential to-dos before an IP rights holder initiates the enforcement proceedings?
Although not necessary, it is recommended that the claimant sends a cease and desist letter prior to initiating the court proceedings because it prevents the alleged infringer from complaining that he or she did not get the opportunity to avoid litigation, which can otherwise mean that the court condemns the rights holder to pay the costs of the proceedings. However, a party should avoid sending a cease and desist letter if there is serious doubt about the infringement. Threatening an alleged infringer's customers is even more dangerous. A party can be liable for damages if the threatened party obeys the demand to cease and desist and the infringement is not substantiated.
Is there any limitation period for filing an infringement action?
Yes, a claim is time-barred after 05 or 10 years, depending on the infringement in question (contractual or extra-contractual).
Which of the following IPR enforcement channels is/are available in Netherlands?
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
Are civil actions available for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in civil litigation?
Which of the following types of civil remedies is/are available in Netherlands?
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Are there any other civil remedies available in Netherlands than the ones mentioned above? If yes, then kindly explain in brief.
Other civil remedies include publication of the judicial decision or an extract thereof, at the cost of the infringer, and a demand for reimbursement of legal cost.
What is the approximate timeline of civil litigation related to IPR enforcement in Netherlands?
Proceedings on the merits may take around 18–24 months to obtain a ruling at first instance. An appeal must be lodged within 01 month of the date of serving the judgment to the other party. The typical time frame for an appeal proceeding is at least 01 to 02 years, but can be longer in some jurisdictions or where an expert opinion is required (notably to assess damages).
What happens if an IP rights holder abuses the enforcement measures in civil litigation?
Are there any disadvantages of civil litigation in Netherlands? If yes, then kindly give 2-3 points?
The punishments in civil litigation may not always be deterrent enough.
Is criminal prosecution available in Netherlands for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in criminal prosecution?
Which is the responsible authority in Netherlands corresponding to the types of criminal remedies available? Also, mention the imprisonment term and the monetary fine.
A) Responsible Authority - District Courts
B) Imprisonment Term - Copyright: 06 months (intentional infringement), up to 04 years (infringement in professional activity); Patents: up to 04 years
C) Monetary Fine - Trademarks: €6,000 to €15,000 for summary proceedings, between €8,000 and €25,000 for main proceedings; Copyright: up to EUR11, 250 (intentional infringement) and EUR45, 000 (infringement in professional activity)
Are there any other criminal remedies available in Netherlands than the ones mentioned above? If yes, then kindly explain in brief.
What happens if an IP rights holder abuses the enforcement measures in criminal prosecution?
Are there any disadvantages of criminal prosecution in Netherlands? If yes, then kindly give 2-3 points?
Are there any alternative dispute resolution mechanisms which allow parties to resolve their dispute out of court?
ADR techniques are available concerning the disputes between trademarks and domain names. They are used whenever possible as they are fast and cost-effective. However, such ADR techniques are available only for specific situations (trademark and domain name conflicts).
Are border control measures (customs) available in Netherlands for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to the customs authority/department to support his claims of infringement against the opposing party/importer of counterfeit goods?
What are the remedies available under border control measures (customs) in Netherlands?
Remedies available under border control measures (customs) in Netherlands include the destruction of goods outside the channel of commerce.
Who must bear the costs of customs intervention during enforcement?
The applicant must bear the costs of customs intervention during enforcement.
What happens if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs?
The goods may be released from detention if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs.
Which are the best practices for enforcement of IPRs in Netherlands?
Are there any risks involved in the enforcement of IPRs in Netherlands? If yes, then kindly give 2-3 points.
In Netherlands, there is no specialised court for trademark disputes. Also, most of the district courts and courts of appeal have judges more or less specialised in IP matters, including trademark matters.