Netherlands: Are Your IP Rights Being Infringed?

A trademark owner in the Netherlands has the right to lodge on the basis of the regulation (EC) no. 3295/94 of the an application in writing, with the customs authorities requiring them to keep a watch for counterfeit goods. This is on the basis of EU regulation 1367/94 (December 1994, 22) and EU regulation 1367/95 (June 1995, 16) which both came into force on July 1, 1997. On the basis of this application, custom authorities are allowed to detain or to suspend the release of a suspicious consignment for a brief period, during which the trademark holder can initiate legal measures.

To obtain the best results, the trademark owner should provide the Dutch Custom Authorities with as many details as possible so that they can effectively recognize the infringing goods. The customs should be given the following:

• information concerning any trademarks;
• information about the cargo;
• if available, any information about the company that is importing the counterfeit goods;
• information about the place of embarkation.

The Dutch Customs authorities will provide the trademark owner or its legal representative with the means to make an application. This must then be lodged at the competent District Customs office in Groningen. After the application has been lodged, the Customs authorities will make a decision and inform the trademark owner in writing whether it will allow the application. If the Customs Authorities reject the application, the trademark owner has the right to appeal this decision in writing within 6 weeks. If the Customs Authorities agree to the application and accept that the imported goods are identical to the goods and/or rights as described in the application, the Customs Authorities will inform the trademark owner and/or the legal representative. From the notification date, the Dutch Customs Authorities will hold the goods for a maximum period of 20 days (the first term of 10 days can be extended for another 10 days, if a request is filed on behalf of the trademark owner). During this period, the company that has imported the counterfeit goods can be provided with a cease and desist letter containing the following information

• A request to deliver the counterfeited goods so that they can be destroyed in the tax-free zone (it is advisable to request one sample of the counterfeit goods. If the trademark owner would have more samples of the counterfeited goods, taxes would have to be paid, when the goods are exported out of the Tax Free Zone into Dutch Territory).
• A request for acknowledgment of the fact that the trademark owner is the rightful owner of the counterfeit goods.
• A request for the name and address of the supplier, and possibly also the dates of shipment (shipment bills, etc.)
• A request for acceptance of a cease and desist undertaking as regards (future) infringement (with details of penalties).

It is worth noting that this cease and desist letter can only be sent to the company in case the Customs Authorities know the name and address of the infringing company and if it has forwarded this to the trademark owner or its legal representative).

In practice, the trademark owners are mostly interested in preventing the goods from entering the Dutch market by reaching a settlement out of court. If a settlement out of court has been reached within the (maximum) period of 20 days, it will not be necessary to initiate legal proceedings.

The Dutch Customs authorities are obliged to release the goods as soon as the 20 days (max) period of expires. In order to prevent the goods from entering the market, the trademark owner should make a civil seizure of the goods which will be followed by preliminary proceedings or proceedings on the merits.

Initiating preliminary proceedings before the expiry date will normally be sufficient to get hold of the counterfeited goods. In this respect the Netherlands law offers a trademark owner sufficient legal ways to protect her intellectual property rights against counterfeited goods.