Cease and desist letter in the Netherlands: enforcing IP rights

A cease and desist letter (sommatie) is a written demand that an infringer stop using your intellectual property, confirm this in writing and settle the consequences. It is not a court order, but it puts the infringer on notice, can put it in default and, with the right wording, interrupts the limitation period; in practice most infringement cases end at this stage.

The letter only works if the underlying right is solid. A warning based on a right that does not hold up can itself be an unlawful act, so the preparation matters more than the drafting.

What does a cease and desist letter do under Dutch law?

The letter has three legal functions. It is the notice of default (ingebrekestelling) under Article 6:82 of the Dutch Civil Code (BW) where one is needed. It can interrupt the limitation period under Article 3:317 BW; for a damages claim the letter must then be followed within six months by a further step, such as a writ of summons (Article 3:317(2) BW). And it proves that the infringer knew, which weighs in the court’s assessment of an injunction, a penalty and costs.

The letter does not create rights. If the trade mark was never registered for the goods concerned, or the work is not original, the letter is worthless. Check your entitlement first; our guide to オランダの知的財産法 gives an overview of the rights.

Which right is being infringed?

Each right has its own basis and proof. Copyright arises automatically under the Dutch Copyright Act (Auteurswet) when a work with its own original character is created; there is no register, so ownership is proved with dated files and contracts. Trade marks and designs are registered with the Benelux Office for Intellectual Property (BOIP) in The Hague or with the EU Intellectual Property Office (EUIPO); without registration there is no trade mark right.

Patents follow the Dutch Patents Act 1995 (Rijksoctrooiwet 1995) or the European route, and the claims determine the scope of protection. Trade secrets are protected under the Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen) only if you took reasonable steps to keep the information secret. Where no right applies, copying a product is in principle allowed, unless it causes needless confusion about origin, which is unlawful under Article 6:162 BW (slaafse nabootsing).

How do you recognise infringement?

Copyright infringement is reproduction or communication to the public of a protected work, or of an original part of it, without consent; a redrawn illustration can still infringe. Trade mark infringement covers an identical sign for identical goods, a similar sign for similar goods with a likelihood of confusion, and unfair use of a mark with a reputation. Use as a company name, domain name or search keyword can all qualify.

Patent infringement is assessed against the claims as read by a skilled person, usually with a written technical opinion before any letter is sent; オランダで特許を申請する explains what the grant does and does not establish. In trade secret cases the letter often also goes to a new employer that uses information it knew or should have known was obtained unlawfully.

What should the letter contain?

A letter that may be used in court identifies the parties with full legal names and Chamber of Commerce (KVK) numbers, the right relied on (with registration number and classes or claims), the infringing acts with dates, and the evidence as attachments. Secure that evidence before sending: dated screenshots, test purchases with invoices and, where the stakes justify it, a bailiff’s record.

Usual demands are to stop immediately, provide information on quantities, suppliers and business customers, destroy or hand over stock, recall goods from business buyers, and pay damages and legal costs. There is no statutory deadline; a few days for stopping and somewhat longer for information is common. Keep the tone factual, because a Dutch judge will read the letter.

Why ask for an abstention undertaking?

The recipient is asked to sign an abstention undertaking (onthoudingsverklaring) with a contractual penalty for each breach. A later breach is then a simple contractual claim. Describe the prohibited conduct broadly enough to cover obvious variations, and set a realistic penalty, because the court can reduce a penalty if fairness clearly requires it (Article 6:94 BW).

What are the risks of sending a letter?

A rights holder who warns an alleged infringer, and especially its customers, while knowing or having to understand that the right does not hold up, is liable for the resulting damage under Article 6:162 BW. In patent practice this is called wapperen, and an injunction against further warnings is a common counterclaim.

The recipient may also take the initiative with a claim for a declaration of non-infringement, or by seeking revocation of the trade mark for non-use or invalidation of the patent. And delay hurts: a trade mark owner who knowingly tolerates use of a later registered mark for a long period can lose the right to act, and unexplained delay undermines the urgency needed for summary proceedings.

How should you read the reply?

Full compliance should be recorded in a signed undertaking, with the information and recall actually delivered. A partial acceptance often leads to a licence or coexistence agreement. A reasoned denial, for example descriptive use, exhaustion within the EU, or lack of originality, deserves a genuine reassessment. Silence means the next step must be procedural, and quickly.

Which enforcement routes exist if the letter is ignored?

In summary proceedings (kort geding) the preliminary relief judge (voorzieningenrechter) can grant an injunction with a penalty payment within weeks, or days in urgent cases. Under Article 1019e of the Dutch Code of Civil Procedure (Rv) an injunction can even be granted without hearing the other side where delay would cause irreparable harm.

Evidence can be secured in advance by a seizure of evidence (bewijsbeslag) with leave of the preliminary relief judge (Articles 1019b to 1019d Rv). The judge sets a period for starting proceedings on the merits; if they are not started in time, the provisional measure can lose its effect at the defendant’s request (Article 1019i Rv).

The District Court of The Hague has exclusive first-instance jurisdiction for patent validity and similar patent claims (Article 80 Rijksoctrooiwet 1995). Since 2023 the Unified Patent Court, with a local division in The Hague, also hears disputes on European patents. For counterfeit imports, rights holders can file an application for action with Dutch Customs (Douane). Online listings can often be removed faster through a notice under the EU Digital Services Act. Our overview of オランダにおける知的財産権の執行 compares these routes.

何を回復できますか?

In intellectual property cases the losing party pays the reasonable and proportionate legal costs actually incurred, unless fairness requires otherwise (Article 1019h Rv). The court applies indicative rates per type of case.

Besides an injunction you can claim damages, calculated as lost profit or a reasonable licence fee, or surrender of the infringer’s profit; the two cannot simply be added together. Dutch law has no statutory or punitive damages. A damages claim becomes time-barred five years after you knew of both the damage and the infringer, and at the latest twenty years after the event (Article 3:310 BW).

権利保有者として確認すべき事項は何ですか？

• Whether your right is registered for the relevant goods and territory, or proven by dated files.
• Whether the evidence of infringement is secured before the letter is sent.
• Whether the right is strong enough to withstand a revocation or invalidity attack.
• Whether you have acted without unexplained delay.
• Whether a platform notice or a customs application is faster than a letter.

What should you check as a recipient?

• Whether the sender actually holds the right invoked, for these goods and this territory.
• Whether a defence applies, such as descriptive use, exhaustion or lack of originality.
• Whether the demanded undertaking is limited to what is necessary and the penalty is proportionate.
• Whether warnings sent to your customers may be unlawful.
• Whether you should not sign anything before the right has been checked.

What can we do for you with a cease and desist letter?

We assist rights holders and recipients; see also our 法律家 ページ：

• We assess the strength and scope of your right before any letter goes out.
• We draft the cease and desist letter and the abstention undertaking.
• We review a letter you received and draft the reply.
• We apply for a seizure of evidence or an ex parte injunction.
• We conduct summary proceedings and proceedings on the merits.

製品概要

• A cease and desist letter puts the infringer on notice and can interrupt the limitation period, if followed up in time.
• Check the right and secure evidence before sending.
• An abstention undertaking with a reasonable penalty makes later enforcement simple.
• Unjustified warnings, especially to customers, can themselves be unlawful.
• In IP cases the loser pays reasonable legal costs under Article 1019h Rv.

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