NETHERLANDS Law and Practice Contributed by: Radboud Ribbert and Wouter van Wengen, Greenberg Traurig, LLP
7. Initiating Trade Mark and Copyright Lawsuits 7.1 Timeframes for Filing Infringement Lawsuits Claims of infringement must be brought within 20 years from the moment when they are first discovered. This statute of limitations will be renewed every time the infringer is notified of its infringement (ie, when the rights-holder asks the infringer to cease the infringement). 7.2 Legal Claims for Infringement Lawsuits and Their Standards IPRED Enforcement Options The legal claims available to trade mark owners and copyright holders are harmonised under the IPRED. Below are the key enforcement options Rights-holders can seek injunctions to prevent any imminent infringement of their intellectual property rights. Damages (Article 13) The injured party has the right to claim damages for the actual loss suffered due to the infringe - ment, as well as any profits that the infringer gained. Corrective measures (Article 12) Courts may order corrective measures, such as recall, destruction, or other similar actions, in relation to the infringing goods. Publication of judgments (Article 15) Court decisions, including judgments on the merits of a case, are published in order to enhance transparency and deter future infringe - ments. outlined in the IPRED. Injunctions (Article 9)
Preservation of evidence (Article 7) Rights holders can request measures to preserve evidence relevant to the alleged infringement. Information (Article 6) Courts may order the disclosure of information necessary to identify the infringer and gather evidence. Provisional and precautionary measures (Article 11) Courts may grant provisional and precautionary measures to prevent an imminent infringement Courts can and most often will order the losing party to pay the reasonable and proportionate legal costs and other expenses incurred by the successful party. Note that these costs are sub - stantially higher in comparison to losing a case in regular proceedings, but the Netherlands has maximised these costs contingent upon the dif - ficulty of the case. Trade Mark and Copyright Infringement For trade mark infringement, the rights-holder must prove that there is either (i) use of an identi - cal mark for identical goods or services; (ii) use of a confusingly similar mark for confusingly sim - ilar goods or services; or (iii) use of an identical or similar mark for different goods or services, but where the mark takes an unfair advantage of the reputation of the invoked trade mark. For copyright infringement, the rights-holder must prove: (i) that they hold the rights (eg, in case of prior assignment, the chain of title); (ii) the scope of the copyright protection; and (iii) the infringement thereof by the other party. or to preserve relevant evidence. Costs of enforcement (Article 14)
367 CHAMBERS.COM
Powered by FlippingBook