Protecting your IP in the Netherlands

In the modern economy, often the value of businesses is not so much determined by the products they make but by the intellectual property rights (IP) they own. Well-known companies whose value is predominantly determined by their IP are Apple and Nike, which core activities are product development, marketing and IP management and which outsource most of their production to third party suppliers. Clear is that good management of trademarks, patents, designs and other IP is of importance for all companies.

In the Netherlands, and in fact worldwide, the following IP-rights are distinguished:
• patents;
• copyrights;
• trademarks;
• design rights;
• trade names;
• plant breeder's rights;
• chips rights.

In addition to these hardcore IP-rights, also the moral rights of authors, the rights of performing artists and domain-name rights are distinguished.

IP-rights intend to grant to their owners a statutory monopoly to use certain products of the mind. Patents are the only IP-rights that actually protect an idea. The other IP-rights only protect the particular expression of an idea, like e.g. a book using a certain plot line or a chair with a certain design.

Patents:
Patents intend to grant inventors a time-limited monopoly to use technical inventions they make. As well inventive products as industrial processes may be patented. In the Netherlands patents may be granted under the Dutch Patent Act (national), under the European Patent Convention (regional), and under the Patent Cooperation Treaty (worldwide). Also, in February 2013 the Convention on a Unified Patent Court has been signed and soon it will be possible to apply for a Unitary patent with which an invention can be protected across the entire European Community with a single patent application.

In the Netherlands patent protection is granted for a period of 20 years from the date of application. After the application is filed, in principle a worldwide search is done to establish whether the invention covered by the application is indeed a new invention. During the application process the protection of the applied for invention is conditional upon whether the search proves that it is indeed new and not yet known. During the term of the patent, the patent owner can prevent third parties from using the patented product or process.

Copyrights:
Copyright are intended to grant the creator of an original work exclusive rights for its use and distribution. Not only literary and other artistic works are protected by copyrights, but also architecture, technical drawings, manuals, industrial designs, and software. Therefore, certainly copyright is an economically important IP-right.

Copyrights are in the Netherlands protected under the Copyright Act 1912. The Dutch Copyright Act is to a large extend based on the 1886 Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention requires its signatories to treat the copyright of works of authors from other signatory countries (known as members of the Berne Union) at least as well as those of its own nationals. For example, Dutch copyright law applies to anything published or performed in the Netherlands, regardless of where it was originally created.

For obtaining copyrights on a work, no registration is required. The copyrights vest by operation of the law the moment that a work is created. The author of the work is the owner of the copyrights, unless the work is made by the author in the normal execution of his tasks as employee, in which event the employer is entitled to the copyrights. Copyrights lasts for 70 years after the death of the author, or in the event of software, 70 years after the first publication.

Trademarks:
Probably are trademarks the best known IP-rights. Trademarks give you protection against third parties that want to benefit from the goodwill you build up in your products and/or services, by enabling you to act against parties that want to use trademarks identical or confusingly similar to your trademark. In the Netherlands trademark protection can be obtained in three different manners, i.e. by applying for a Benelux trademark, by applying for a EU Community trademark or by applying for an international trademark.

Under the Benelux Convention on Intellectual Property it is possible to apply for registration of your trademark in the whole territory of the Benelux states, i.e. Belgium, the Netherlands and Luxembourg. Under the Convention in principle all marks that are able to distinguish your products and services from the products and services of other suppliers can be registered as a trademark. This includes names, logo's, colors, designs (e.g. the traditional Coca Cola bottle), music tunes and even smells. The trademark must be registered for products and/or services according to the Nice Classification (NCL), an international classification of goods and services applied for the registration of marks. The trademark registration is valid for 10 years, but is unlimited renewable for additional 10 year periods. If the trademark is not used for 5 subsequent years, its registration may be invalidated.

Under the European Union Community trademark Regulation, trademarks can be applied for, for the whole territory of the EU. Since the Benelux Convention on Intellectual Property is based on the EU Community trademark Regulation, the rules are materially similar. The advantage of being able to secure trademark protection for the whole EU is sometimes offset by the fact that if already an identical or similar older trademark of a third part owner exists in the territory of the EU the new trademark application will be refused. In that event, the trademark owner can fall back on national trademark registrations in EU Member States in which no older competing trademark rights exist.

Finally, if the trademark owner already has a trade mark registration in a member state of the Madrid System for the international registration of marks (the Madrid Agreement and Madrid Protocol), the trademark owner can relatively easy and inexpensive expand the protection of its trademark as an international trademark to other member states of the Madrid System. China is since 1989 party to the Madrid System. As also the Netherlands and the EU are parties to the Madrid System, Chinese registered trademarks can easily be expanded to the EU or the Benelux.

Designs:
Design rights are also economically important IP-rights. Design rights intend to protect the design, i.e. the outer appearance of products. To qualify for protection the design must be new and not solely be determined by the technical function of the product. Design rights enable you to oppose to others copying your designs.

Similar to trademarks, in the Netherlands design right protection can be obtained under the Benelux Convention on Intellectual Property or under the EU Community Design Regulation. Under the EU Community Design Regulation, unregistered Community designs are given protection against copying for a period of three years from the date on which the design was first made available to the public within the territory of the European Union. After three years, the protection cannot be extended. A registered Community design is initially valid for five years from the date of filing and can be renewed in blocks of five years up to a maximum of 25 years. If you want to have the benefit of the extended protection of registered designs, you need to register your design within 1 year after its first publication in the EU, failing to do so you registration may be successfully opposed to.

Since trade names are economically less relevant and plant breeder's rights and chips rights are relevant for particular niches of the economy only these rights will further not be discussed in this article. This leaves apart that these rights, were relevant, certainly should not be neglected by companies.

Enforcement:
The EU places great emphasis on the value of IP for the economy and on the proper protection of the rights of IP owners. In 2004 the EU enacted the Directive on the enforcement of intellectual property rights, requiring all EU Member States to apply effective, dissuasive, and proportionate remedies and penalties against those engaged in counterfeiting and piracy, and aimed to create a level playing field for IP owners in the EU. It means that all EU Member States have a similar set of measures available for IP owners to defend their IP-rights.

The set of measures available to IP owners further to the Directive encompasses, in the main:
• evidence-gathering powers for judicial authorities, powers to force offenders and any other party commercially involved in an infringement to provide information on the origin of the infringing goods and of the distribution of networks;
• provisional and precautionary measures such as interlocutory injunctions or seizures of suspect goods, corrective measures including permanent injunctions, recall and definitive removal of the infringing goods from channels of commerce;
• powers to force offenders to pay damages, including the right to claim from the infringer payment of the profits realized with the infringement.

In the Netherlands and in the EU the courts have recognized this value of IP for the economy and the rights of IP owners. Therefore, IP rights have proven an effective system for protecting and enforcing your rights in innovative, new and original products.