The Netherlands has an attractive business climate for foreign investors. Many multinational corporations have chosen the Netherlands as the location for their European headquarters, distribution, operations or customer care center from which they can run their worldwide, European or local business operations. Intellectual property rights (or in short IP rights) are a fundamental aspect of any business. In this third blog post about doing business in the Netherlands we will set out how IP rights are acquired in the Netherlands. We will focus on the protection of names, designs, inventions and knowhow.
1. Names: trade names and trademarks
A distinction can be made between the name of the company (trade name) and the names that are used to distinguish the products and services of a company (trademarks).
If a Dutch company conducts business in the Netherlands, the rights to its trade name are acquired automatically, through the use of that name. Because the company with the oldest trade name has the best rights, it is advised to keep evidence of the earliest use of the name. For instance brochures, price lists, screenshots of the website and copies of letters.
If a foreign company conducts business in the Netherlands but does not have any offices based in the Netherlands, it may still be possible to acquire trade name rights in the Netherlands. This is the case if the trade name is known amongst the Dutch public to such an extent that it can confuse this name with the younger company name of a third party.
Contrary to certain jurisdictions, trademarks are acquired through registration only. In principle no rights are obtained by the mere use of a name for products or services. There is no national Dutch trademark: a party can apply for a Benelux trademark that grants protection in Belgium, the Netherlands and Luxemburg. Another option is to apply for an EU trademark that is valid in all (currently 28) member states of the EU.
Companies can file a trademark themselves but it is advised to consult a specialized trademark lawyer. Also, it is wise to check whether the sign does not infringe any older trademark rights that are registered for the relevant region before application or use of that sign.
2. Product design: copyrights and design rights
Works of art and the appearance of products can be protected in the Netherlands by either copyrights or design rights.
The Netherlands has one of the most favourable environments for the protection of design in the whole of Europe. Copyright protection is acquired automatically, once the work is created. There is no copyright registry in the Netherlands or the rest of Europe. The requirement for protection is that creative choices were made and the work was not copied from an older work. The appearance of products that have a function (for instance fashion, furniture and toys) can often be protected by copyrights as well.
We note that the actual author in principle is the rightholder and not the company that gave an order to create a work. This means that third parties such as the designer of the logo, the corporate identity and the website will hold the copyrights, even when they received money. In order to obtain the rights, it is necessary to enter into an agreement with these parties in which the copyrights are transferred.
Different rules apply for employees. If an employee was hired to create the respective works (for instance if the employee was hired as a designer) or had a direct instruction to do so, then the company holds the copyrights. It is advised to add a clause to the employment agreement that all copyrights of works created by employees are transferred to the company.
Especially if a product is not only sold in the Netherlands but also in other countries, it is advisable to look into design protection. In the EU there is a non-registered design that is valid for 3 years and that protects against third parties copying the product. Protection is acquired automatically.
There is also a registered Benelux and EU design. In that case the maximum duration of protection is 25 years and legal measures can be taken against designs that have the same overall appearance. Once a product is shown to the public, a company needs to make sure to file the registration within the next 12 months (also called the grace period). If a design is registered after that period, other parties can have the design declared invalid.
3. Inventions: patents
Inventions can only be protected by applying for a patent. A company can apply for a Dutch patent. It can also file an EU application for the invention, in order to obtain patents in other European countries as well. Unlike trademarks and designs, there is no EU patent (yet).
One of the conditions for patent protection is that the invention is novel. This means that no information about the invention may be made available to the public. If it is necessary to share information with third parties, it is advisable to have this party sign a non-disclosure agreement.
As the wording of (the claims of) a patent is of the utmost importance, it is advised to work together with a good patent attorney.
Although there are new rules on the protection of knowhow and secret company information, the best way to protect such information in the Netherlands is still to share it with as few people as possible, to store the information at a safe location and to enter into an agreement with everyone that gains knowledge of the information. If it concerns employees, a clause can be added to their employment agreement. Third parties can sign a non-disclosure agreement.
Questions for our IP lawyers?
Clairfort has highly specialized IP lawyers and is ranked in the WTR 1000, the overview of the worlds’ leading trademark professionals. Should you have any questions about IP rights – for instance how to acquire or protect them or what agreements should be entered into with third parties – please feel free to contact Evert van Gelderen or Elise Menkhorst at all times.
More information about Doing business in the Netherlands
Clairfort publishes a series of blogs about Doing business in the Netherlands. You can read the first blog about setting up a business (company law) here. The second blog about immigration and employees of a Dutch company (employment law) can be found here.