NETHERLANDS LAW AND PRACTICE Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
On 1 June 2023 the EU regulations establishing the Unitary Patent system (No 1257/2012 and No 1260/2012) became applicable. On 7 February 2025, 18 EU member states have ratified the UPC (Unified Patent Court Agree - ment) Agreement, 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 25 EU member states by submitting a sin - gle request to the EPO. Once the EPO grants a European patent appli - cation, 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 infringement of a Unitary Patent for all EU member states that ratified the UPC Agree - ment. The UPC (Unified Patent Court), has head - quarters in Munich and Paris. In The Hague, there will be a local division at The Hague Hear - ing Centre. Companies can litigate European patent cases there in Dutch and English. For a transitional period (initially of 7 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, pro -
vided 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 supple - mentary protection certificate. Patent owners can prevent others from unli - censed use of the patented technology. In addi - tion, patent owners can demand information, the disclosure of records, the destruction of infringing products and damages from infring - ers. Damages can be calculated on the basis of lost profits of the patent owner, a licence analogy or the profits of the infringer. Punitive damages cannot be claimed in the Netherlands. The District Court of The Hague has a special - ised patent division, and has exclusive jurisdic - tion in patent 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 spe - cialised IP justices. Appeal judgments can be reviewed by the Supreme Court of the Nether - lands, 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 Prop - erty (trade marks and designs); • Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the EU trade mark; and • the Protocol Relating to the Madrid Agree - ment Concerning the International Registra - tion of Marks (Madrid Protocol). Trade marks can consist of any signs, particularly words, including proprietary names, or designs, letters, numerals, colours, the shape of goods or
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