NETHERLANDS Law and Practice Contributed by: Radboud Ribbert and Wouter van Wengen, Greenberg Traurig, LLP
7.6 Declaratory Judgment Proceedings and Other Protections for Potential Defendants An alleged trade mark or copyright owner may start declaratory judgment proceedings. There are no restrictions on the circumstances for this. A potential defendant should ensure it has enough evidence to support its claim to the trade mark or copyrights. 7.7 Small Claims Claims under EUR25,000 are heard by small claims courts ( kantonrechter ). 7.8 Effect of Trade Mark and Copyright Office Decisions The civil courts are bound by the decisions of the respective trade mark office. 7.9 Counterfeiting and Bootlegging Counterfeit marks are treated as a trade mark infringement, while copyright counterfeiting is treated as a copyright infringement. There are special procedures for counterfeiting and are dealt with by customs authorities pursuant to Regulation (EU) 608/2013 concerning customs enforcement of intellectual property rights (IPR). Bootlegging is not specifically defined in legisla - tion or case law, and is typically treated in the same manner as regular copyright infringement. 8. Litigating Trade Mark and Copyright Claims 8.1 Special Procedural Provisions for Trade Mark or Copyright Proceedings Trade mark and copyright proceedings follow the regular procedural rules as set out by the Dutch Code of Civil Procedure. These cases are not determined by technical judges and some -
In the context of Dutch and EU legal frameworks, the nuanced categories of infringement common in other jurisdictions, such as direct, contribu - tory, or vicarious infringement, do not have direct equivalents. Instead, an action is simply classi - fied as either constituting infringement or not. 7.3 Factors in Determining Infringement These factors are briefly described in 7.2 Legal Claims for Infringement Lawsuits and Their Standards . For trade marks, these factors are established by statute. Where it concerns copy - right infringement, the factors have been formed by case law. 7.4 Prerequisites and Restrictions to Filing a Lawsuit While it is not formally required by law to issue a demand letter, warning letter or other type of notice before filing the lawsuit, it is against the disciplinary guidelines for Dutch attorneys as set out by the bar to do so. Unfounded claims or abuse of law are subject to tort liability. 7.5 Lawsuit Procedure In principle, but subject to forum rules, all civil courts can hear trade mark or copyright claims. The costs that typically arise before filing a trade mark or copyright lawsuit will relate to advice, warning letters, collecting evidence, and nego - tiating with the (alleged) infringer. Parties need to be represented by an attorney in order to litigate a trade mark or copyright lawsuit. There are no restrictions as to the nationality or country of residence of the trade mark owner or copyright holder in bringing an infringement claim in the Netherlands.
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