NETHERLANDS Law and Practice Contributed by: Radboud Ribbert and Wouter van Wengen, Greenberg Traurig, LLP
well-informed and reasonably observant and circumspect” consumer of the respective goods and services is taken into account. 2.3 Trade Mark Rights Trade mark owners have the right to exclusive use of the trade mark, including to authorise or prohibit others from using the trade mark. In addition, the trade mark owners can address unauthorised users by filing injunctions and/or claiming damages. These rights are outlined by the BCIP and the Trade Mark Act. These rights persist throughout the term of a mark. The BCIP and the Trade Mark Act have incor - porated an anti-circumvention right through the absolute grounds for protection, which pre - cludes registration of trade marks with an essen - In the Netherlands, the protection of trade marks can only be derived from the registration thereof. However, it is possible to lose the registration of a trade mark if it is not used for a period of five years. Use in this sense is defined as “genuine use”. Genuine use is the use of the trade mark to market or sell the products and/or services for which the trade mark is registered. 2.5 Notices and Symbols The use of a symbol to denote that a mark is reg - istered is not necessary and has no legal effect under Dutch and European trade mark laws. 2.6 Related Rights It is possible for trade marks to be protected by copyrights or related rights if they meet the respective thresholds. In case of copyright pro - tection, this requires that the logo is sufficiently creative and that the work is the author’s own intellectual creation. Another possibility is that tially technical function. 2.4 Use in Commerce
the trade mark is protected by local trade name laws. In the Netherlands, the Trade Name Act protects names used in business operations. Notably, registration is not required to receive protection for a trade name. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Virtually any type of work can be protected by copyright so long as the thresholds for copyright protection are met. The categories are therefore limitless. Industrial designs can be protected by copyright protection and can also separately enjoy the protection of a design right. However, in either case the appearance may not exclu - sively be dictated by a technical function. 3.2 Essential Elements of Copyright Protection First, the work must be original in the sense that it is the author’s own intellectual creation. Sec - ond, the work must be the expression of such author’s own intellectual creation. Third, the work must be identifiable with sufficient preci - sion and objectivity, even though that expression is not necessarily in permanent form. 3.3 Copyright Authorship Authorship is not defined by statute. The thresh - olds have been shaped by case law and are fur - ther explained in 3.2 Essential Elements of Cop- yright Protection . When an employee creates a work eligible for copyright protection within the scope of their job description, the copyrights in such work vest in the employer by operation of law. Authorship necessitates human effort, and the extent of this requirement is a topic of ongo - ing debate, especially concerning works created
360 CHAMBERS.COM
Powered by FlippingBook