スタートアップのための知的財産保護：権利を確保し、行使する方法

A startup in the Netherlands protects its 知的財産 in two ways: patents, trade marks and designs only exist after registration, while copyright (including software), database rights, trade names and trade secrets arise without filing. For investors the key question is usually not whether these rights exist but whether the company owns them, because a freelancer or co-founder keeps the copyright in his work unless it is transferred in writing.

This article explains which rights exist, where to register them, who owns what, which contracts keep your rights inside the company and how to enforce them. See also our page on スタートアップ向けの法的アドバイス.

Why does IP decide what your startup is worth?

For most early-stage companies the intellectual property is the main asset: software, a brand, a data set, a design and know-how. That asset only has 譲渡可能な価値 if documents show that it belongs to your BV.

Investor due diligence therefore starts with the chain of title. Who wrote the first code, and on what basis? Did the design agency assign its copyright? Was the invention shown in public before the patent application? Is the trade mark registered where you sell?

Repairing gaps later is expensive: a former developer or departed co-founder knows you need his signature. Lost novelty cannot be repaired at all, and rights held by others can block you, so check what exists in your field as part of 知的財産の管理.

Which intellectual property rights exist under Dutch law?

Each right protects something different. A business model cannot be patented, an idea cannot be protected by copyright, and a name is not protected only because it is in the Chamber of Commerce (KVK） 登録。

When can you get a patent?

A patent protects a technical invention that is new, involves an inventive step and is industrially applicable. Under the Dutch Patents Act 1995 (Rijksoctrooiwet 1995, ROW) a Dutch patent lasts at most twenty years from the filing date, kept alive by annual fees.

Novelty is absolute: any public disclosure before filing counts against you, including your own pitch, website or demonstration. File first, or use a confidentiality agreement before you speak.

A Dutch national patent is registered and granted after about eighteen months (Articles 31 and 36 ROW) without a substantive examination of novelty and inventive step. A search report is published, but a negative opinion does not stop the grant, so read that report before you treat a Dutch patent as a solid asset.

How do trade marks and trade names differ?

A Benelux trade mark only arises through registration at the Benelux Office for Intellectual Property (BOIP), and is valid for ten years from filing and renewable (Article 2.9 of the Benelux Convention on Intellectual Property, BCIP). An EU trade mark at the EUIPO covers all EU member states.

Neither office refuses a mark because a similar earlier mark exists; the owner of the earlier mark must file an opposition, in the Benelux within two months of publication (Article 2.14 BCIP). Do a clearance search before launch, and use your mark: a mark not genuinely used for five years can be revoked.

A trade name is protected through use, not registration. Under Article 5 of the Trade Name Act (Handelsnaamwet), a later business may not use a trade name that is identical or only slightly different if this causes confusion, taking into account the nature and location of both businesses.

著作権は何を保護するのでしょうか?

Copyright arises automatically when an original work is created and lasts until 70 years after 1 January of the year following the maker’s death (Article 37 Auteurswet). Software, documentation, interfaces, texts and 写真 are protected; ideas and functionality are not.

A transfer of copyright or an exclusive licence must be agreed in writing (Article 2(3) Auteurswet) and delivered by deed (Article 3:95 BW); an e-mail is not enough. The maker keeps his moral rights after a transfer (Article 25 Auteurswet). An i-DEPOT at BOIP gives you dated proof of your material, but creates no right.

What do design rights and database rights protect?

A design right protects the appearance of a product, if new and with individual character. A Benelux registration at BOIP lasts five years from filing and is renewable (Article 3.14 BCIP), up to a maximum of 25 years; an EU design is filed at the EUIPO.

The Databases Act (Databankenwet) protects the producer who made a substantial investment in obtaining, verifying or presenting a database. Under Article 6 of that Act the right expires fifteen years after 1 January of the year following completion. For data-driven startups this is often the only right that covers the asset that matters.

When is information a trade secret?

Under Article 1 of the Trade Secrets Act (Wet bescherming bedrijfsgeheimen), information is a trade secret if it is secret, has commercial value because it is secret, and the holder took reasonable measures to keep it secret. Cases are usually lost on the third condition.

A trade secret has no time limit and no filing cost, but it ends the day the information becomes public. Decide deliberately whether to イノベーションを秘密にしておく or to patent it, because a patent application is published.

Where should you register?

Choose territory and timing based on where you sell, not where you are established. A first patent filing at the Netherlands Patent Office (Octrooicentrum Nederland) or the European Patent Office (EPO) fixes a filing date, and gives you twelve months of priority to file elsewhere.

A European patent application is examined substantively and, once granted, takes effect as a unitary patent or is validated per country. An international application under the Patent Cooperation Treaty (PCT) buys time, up to thirty months from priority, before you enter national phases; it is not an international patent.

For designs, the Benelux system allows filing within twelve months after your own first disclosure without losing novelty (Article 3.3(4) BCIP). Official fees are published by Octrooicentrum Nederland, BOIP and the EUIPO; Octrooicentrum Nederland does not send invoices for renewal fees, so you must watch the deadlines yourself. For the wider set-up, see our guide on オランダでビジネスを始める.

Who owns what: founders, employees and freelancers?

Ownership follows the maker, unless the law or a written agreement says otherwise, and the rules differ per right. This is the most important point to settle before a funding round.

For copyright, Article 7 Auteurswet makes the employer the maker of works that an employee creates as part of his job, unless agreed otherwise. That rule does not cover freelancers, agencies or co-founders who are not employed; they keep the copyright until they sign a written transfer.

For inventions, Article 12(1) ROW gives the right to the patent to the employee, unless his position requires him to use his special knowledge to make inventions of that kind; then the employer is entitled. Parties may deviate from this in writing (Article 12(5) ROW). If the employer is entitled and the salary does not compensate the employee, he is entitled to a fair amount (Article 12(6) ROW); a clause excluding this is void (Article 12(7) ROW).

Use a consistent set of 書面による合意: employment contracts with an IP clause and a duty to disclose inventions, contractor agreements with a signed assignment, and a founders agreement that transfers everything created before incorporation, including domain names and code repositories. Keep an inventory of open-source components and their licence terms.

Which contracts keep your rights inside the company?

Most IP is lost inside your own circle, not to outsiders. A 秘密保持契約 defines what is confidential, what the other party may do with it and for how long. A contractual penalty makes a breach worth acting on, although a court may reduce a penalty if fairness clearly requires it (Article 6:94 BW).

Venture capital investors often refuse to sign an NDA at first contact, so limit what you disclose early. An NDA does not replace a patent filing. Internal measures such as need-to-know access, marked documents and an exit procedure for departing staff are also your proof of the “reasonable measures” the Trade Secrets Act requires.

How do you enforce your IP rights in the Netherlands?

Start with a precise 停戦の手紙 that names the right, the infringing act and a deadline. Be accurate about the scope of your right, because an unfounded threat can itself be unlawful.

If that fails, the preliminary relief judge (voorzieningenrechter) can grant an injunction within weeks. In urgent cases, Article 1019e of the Dutch Code of Civil Procedure (Rv) allows an order without hearing the other side first, and evidence can be secured through a court-authorised evidentiary seizure.

Under Article 1019h Rv the losing party in an IP case can be ordered to pay the reasonable and proportionate legal costs actually incurred, not just the standard scale. That makes a strong case worth bringing and a weak one expensive to lose; see how to handle IP disputes.

Patent cases and cases on EU trade marks and designs go to the District Court of The Hague; the Unified Patent Court, with a local division in The Hague, hears European patent cases that were not opted out. Customs can detain suspected counterfeit goods at the EU border once you have filed an application for action, and online platforms must act on substantiated notices under the Digital Services Act. See also あなたの権利を行使する.

Which public support exists?

Octrooicentrum Nederland, part of the Netherlands Enterprise Agency (RVO), gives free information about patents and access to patent databases. RVO also runs innovation schemes such as the WBSO; Law & More does not give tax advice, so discuss the tax side with your tax adviser.

創業者として確認すべきことは何ですか？

• Every freelancer, agency and co-founder has signed a written transfer of copyright to the BV.
• Employment contracts contain an IP clause and a duty to disclose inventions.
• Patentable inventions are filed before any pitch, publication or demonstration.
• The trade mark is registered at BOIP or the EUIPO for the markets where you sell.
• Trade secrets are protected by access controls and NDAs.
• Domain names, repositories and accounts are held by the company, not by a founder.

投資家として確認すべきことは何ですか？

• The chain of title for the core software, brand and designs, with signed transfers.
• Whether patents were granted after substantive examination or only registered.
• Trade mark registrations, oppositions and proof of use in the relevant markets.
• Open-source licences that limit distribution of the product.
• Pending or threatened infringement claims and freedom-to-operate risks.

What can we do for you with IP protection?

現場の声を力強いメッセージへ。 知的財産弁護士 (NAIST) と 顧問弁護士 advise startups, scale-ups and investors.

• We draft assignment, licence and founders agreements that transfer IP to your company.
• We review employment and contractor contracts for IP and confidentiality clauses.
• We carry out IP due diligence before an investment round.
• We advise on trade mark and design strategy and handle BOIP oppositions.
• We send cease-and-desist letters and conduct preliminary relief proceedings.

製品概要

• Patents, trade marks and designs require registration; copyright, database rights, trade names and trade secrets do not.
• Freelancers and co-founders keep their copyright until they sign a written transfer (Article 2(3) Auteurswet).
• Employers own copyright in employees’ work (Article 7 Auteurswet); patent rights follow Article 12 ROW.
• File patents before any disclosure; Dutch patents are granted without substantive examination.
• Enforcement is fast, and the loser in an IP case pays actual legal costs (Article 1019h Rv).

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