NETHERLANDS Law and Practice Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
• by filing an application with the WIPO under the Patent Cooperation Treaty. On 1 June 2023 the EU regulations establishing the Unitary Patent system (No 1257/2012 and No 1260/2012) became applicable. There are 24 EU member states, which have signed the Agreement on a Unified Patent Court (UPCA). The EU member states Croatia, Poland and Spain have not signed the UPCA but may still accede to it at any time. Currently, the UPCA is in force in the 18 mem - ber states which have ratified the UPCA, ie, Austria, Belgium, Bulgaria, Denmark, Estonia, Finland, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Portugal, Romania, Slovenia and Sweden. Additional EU member states are expected to ratify the UPC Agreement in the coming years, so that eventually Unitary Patents will make it possible to get patent protection in up to 24 EU member states by submitting a single request to the EPO. Once the EPO grants a European patent application, the applicant can choose between: (i) a European patent with chosen countries; or (ii) a Unitary Patent for the European countries that have ratified the UPC Agreement. Through the UPC Agreement, a ruling can be obtained from a single authority regarding the validity or infringe - ment of a Unitary Patent for all EU member states that ratified the UPC Agreement. The UPC (Unified Pat - ent Court), has headquarters in Munich and Paris. In The Hague, there will be a local division at The Hague Hearing Centre. Companies can litigate European pat - ent cases there in Dutch and English. For a transitional period (initially of seven years) for classic European patents the patentee can choose whether or not to use the UPC. If it is chosen not to use the UPC, then litigation will continue to go through the national courts. This is called “opting out” of the UPC. Dutch patents and Unitary Patents are valid for a maximum of 20 years from the filing date, provided that the annual fees are paid. If certain requirements are met, the term of protection for medicinal and plant
protection products can be extended by up to five years through a supplementary protection certificate. Patent owners can prevent others from unlicensed use of the patented technology. In addition, patent owners can demand information, the disclosure of records, the destruction of infringing products and damages from infringers. Damages can be calculated on the basis of lost profits of the patent owner, a licence anal - ogy or the profits of the infringer. Punitive damages cannot be claimed in the Netherlands. The District Court of The Hague has a specialised patent division, and has exclusive jurisdiction in pat - ent litigation regarding Dutch patents. It is possible to appeal judgments of The Hague District Court to the Appeal Court in The Hague, which will review the dispute in full and has specialised IP justices. Appeal judgments can be reviewed by the Supreme Court of the Netherlands, albeit only on issues of law, not fact. 7.2 Trade Marks The Netherlands has three different systems for trade mark protection: • the Benelux Convention on Intellectual Property (trade marks and designs); • Regulation (EU) 2017/1001 of the European Parlia - ment and of the Council of 14 June 2017 on the EU trade mark; and • the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol). Trade marks can consist of any signs, particularly words, including proprietary names, or designs, let - ters, numerals, colours, the shape of goods or of the packaging of goods, or sounds, provided that such signs are capable of: • distinguishing the goods or services of one busi - ness from those of other businesses; and • being represented in the register in a manner that enables the competent authorities and the public to determine the clear and precise subject matter of the protection afforded to its proprietor.
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