オランダにおける知的財産：登録と執行

In the Netherlands, copyright, trade names, database rights and trade secrets arise without registration, while trade marks and designs must be registered at the Benelux Office for Intellectual Property (BOIP) or the EU office (EUIPO), and patents must be applied for. The main exception to “you own what you create”: work made by a freelancer or agency stays with the creator until a written deed transfers it.

Each right has its own conditions, territory and term. A Benelux trade mark gives no protection in Germany and a Dutch patent gives none in France, so your filing strategy should follow the markets you sell in.

オランダにはどのような知的財産権が存在しますか？

オランダ語 知的財産法 combines national statutes, the Benelux Convention on Intellectual Property (BVIE) for trade marks and designs, EU rules and international treaties. The table shows the rights that matter most in practice.

What does copyright protect, and how do you transfer it?

Copyright under the Copyright Act (Auteurswet) protects original works with the personal stamp of the maker, including software, photographs, technical drawings, marketing copy and website designs. It arises on creation and lasts 70 years from 1 January after the author’s death (Article 37 Auteurswet).

For works published anonymously or under the name of a company, the 70 years run from 1 January after first lawful publication (Article 38 Auteurswet). A copyright notice adds nothing legally, but it helps as evidence.

A transfer of copyright, or an exclusive licence, must be agreed in writing (Article 2(3) Auteurswet). When the maker transfers rights, only the rights expressly described in the agreement, or that necessarily follow from it, pass. An invoice or an e-mail is not enough.

Moral rights (persoonlijkheidsrechten) stay with the maker even after a transfer (Article 25 Auteurswet). They include the right to be named and to object to changes and to distortion that harms the maker’s reputation. Some can be waived in writing; the right to oppose damaging distortion cannot. Deal with moral rights expressly in every transfer.

How do you register a trade mark or design at the BOIP?

There is no Dutch-only trade mark: a Benelux registration at the BOIP covers Belgium, the Netherlands and Luxembourg together. Alternatives are an EU trade mark at the EUIPO or an international registration through the Madrid system.

A sign can be registered if it distinguishes your goods or services and can be shown clearly in the register. Descriptive or generic signs are refused, which is the most common reason an application fails. A registration lasts ten years from filing and can be renewed (Article 2.9 BVIE).

The BOIP does not refuse an application because a similar earlier mark exists. The owner of that mark must file an opposition within two months of publication (Article 2.14 BVIE). A registration is therefore no proof that you are free to use the mark; a clearance search before you launch a brand is essential.

A mark that is not genuinely used in the Benelux for an uninterrupted period of five years becomes vulnerable to revocation (Article 2.23bis BVIE). A portfolio of unused defensive marks is weaker than it looks.

A design protects the appearance of a product: its lines, contours, colours, shape, texture or materials. A Benelux design registration lasts five years and can be renewed four times, up to 25 years (Article 3.14 BVIE). The design must be new, so publishing it before filing can destroy protection, subject to a limited grace period. EU law also gives a short-term unregistered design right against deliberate copying.

How do you obtain a patent in the Netherlands?

You apply to the Netherlands Patent Office (Octrooicentrum Nederland, part of RVO) for a Dutch patent, or to the European Patent Office for a European patent. Both last up to 20 years from the filing date, subject to annual fees (Articles 36 and 49 Rijksoctrooiwet 1995).

An invention must be new, inventive and industrially applicable. The filing date decides priority, and any earlier disclosure by the inventor, at a trade fair or in a conversation without a confidentiality agreement, can destroy novelty. File first, or disclose only under a written non-disclosure agreement.

A Dutch patent is granted after a search report on the state of the art, without a substantive examination of patentability. It is quick and relatively cheap, but its validity is only really tested when you enforce it. A European patent is examined substantively before grant.

Since 1 June 2023 a European patent can also be registered with unitary effect, covering the participating EU member states in one right. The Unified Patent Court (UPC), which has a local division in The Hague, hears disputes about these patents. During a transitional period, holders of classic European patents can opt out of UPC jurisdiction; decide this per patent family, not by default.

Which rights do businesses tend to forget?

Trade names, trade secrets and database rights all arise without registration, so they are often never documented. Each needs its own evidence.

A trade name is protected by the Trade Name Act (Handelsnaamwet) through use, not registration. Under Article 5 Handelsnaamwet you may not use a name that an earlier user already lawfully used, if confusion is likely given the nature and location of both businesses. Registering a name at the Chamber of Commerce (KVK) does not clear it, so check brands against the trade mark registers and actual market use.

Under Article 1 of the Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen), information is a trade secret only if it is secret, has commercial value because it is secret, and is subject to reasonable measures to keep it secret. Confidentiality clauses, access restrictions, document marking and exit procedures are what make information protected in the first place.

The database right protects the substantial investment in obtaining, verifying or presenting a collection of data. It lasts fifteen years from 1 January after completion, and a substantial change starts a new term (Article 6 Databankenwet). Keep records of what the investment consisted of.

Who owns work made by employees and freelancers?

For copyright, the employer is regarded as the maker of works an employee makes as part of the job of making such works, unless agreed otherwise (Article 7 Auteurswet). A freelancer, agency or contractor keeps the copyright until a written deed transfers it; paying the invoice buys the deliverable, not the rights.

For patents, the rule is narrower than many employers think. Under Article 12(1) Rijksoctrooiwet 1995, an employee’s invention belongs to the employer only if the nature of the job requires the employee to use special knowledge to make inventions of that kind. Otherwise the employee is entitled to the patent. Where the employer gets the patent, the inventor may be entitled to fair compensation if the salary does not reflect it (Article 12(6)).

Trade marks and designs belong to whoever files them. A mark a founder registered in their own name is not owned by the company that uses it. Put a clear intellectual property clause in every employment contract and a written assignment in every contract with an external developer, designer or photographer, including what happens to pre-existing material and open-source components.

オランダでは、知的財産権をどのように執行するのですか？

Most disputes start with a letter before action and, if needed, preliminary relief proceedings (kort geding), which can produce an enforceable injunction within weeks. Patent cases go exclusively to the District Court of The Hague at first instance (Article 80 Rijksoctrooiwet 1995) or, where it has jurisdiction, the UPC.

In urgent cases the preliminary relief judge can grant an injunction without hearing the other side, where delay would cause irreparable harm (Article 1019e of the Dutch Code of Civil Procedure, Rv). Evidence can be secured by a court-authorised seizure of evidence (bewijsbeslag), so an infringer cannot destroy proof before the court decides on access.

In intellectual property cases the losing party can be ordered to pay the winner’s reasonable and proportionate legal costs (Article 1019h Rv), not the modest fixed rates of ordinary civil cases. That cuts both ways, so weigh it before you start.

Rights holders can also ask customs to detain suspected counterfeit goods at the EU border, and online infringements can be tackled through notice-and-takedown with platforms. Before enforcing, check that your own right is solid: a counterclaim for revocation is the standard defence.

権利保有者として確認すべき事項は何ですか？

Most lost rights could have been kept at almost no cost. Check:

• Whether you filed before any public disclosure of an invention or design.
• Whether you have written deeds of transfer for all work by freelancers and agencies (Article 2(3) Auteurswet).
• Whether trade marks are registered in the company’s name and for every market you sell in.
• Whether each registered mark has been genuinely used within the last five years.
• Your renewal dates for trade marks and designs and the annual patent fees.
• Whether your trade secrets are protected by documented confidentiality measures.

What should you check when you are accused of infringement?

A warning letter does not mean the claim is valid. Check:

• Whether the right claimed exists, is registered for the relevant goods and covers your territory.
• Whether a trade mark relied on has been used in the past five years.
• Whether a patent or design was disclosed before its filing date.
• Whether the claimant can prove ownership, for example through a written transfer.
• Whether you have your own earlier rights, such as earlier use of a trade name.
• The deadline in the letter, and the cost risk under Article 1019h Rv.

知的財産に関して、弊社はどのようなお手伝いができますか？

あなたの 法律家, we protect and enforce your intellectual property in the Netherlands:

• We map which rights your business holds and which ones need registering.
• We carry out clearance searches and file trade marks and designs at the BOIP or EUIPO.
• We draft transfer and licence agreements and IP clauses for employees and freelancers.
• We send or answer warning letters and negotiate settlements.
• We conduct preliminary relief and infringement proceedings, including evidence seizures.

製品概要

• Copyright, trade names, database rights and trade secrets arise without registration; trade marks, designs and patents require filing.
• A Benelux trade mark lasts ten years and is renewable; a Benelux design lasts up to 25 years.
• Copyright transfers and exclusive licences require a written agreement (Article 2(3) Auteurswet).
• An employee’s invention belongs to the employer only if the job involves making such inventions (Article 12 Rijksoctrooiwet 1995).
• In IP cases the loser can be ordered to pay the winner’s reasonable legal costs (Article 1019h Rv).

よくある質問