More strategic options for IP owners in the Netherlands

The latest newsletter from the team at Steinhauser
foreshadows some interesting developments in the Netherlands
from 1 July 2006.

Take home

Factors including relatively low cost and good prospects of
success have meant that the Netherlands is one of the most
popular jurisdictions in which to enforce IP rights. The latest round of amendments to the
civil procedure will support this trend.
They include:

interim injunction proceedings.
(An injunction without the defendant having the opportunity to be heard on
the application — see below).

Descriptive seizure.
(This is basically a civil search and is similar to (but not the same as) Anton Piller Orders as discussed in
the my article of 5 May 2006.)

The patentee may take possession of
equipment used to commit patent infringement or demand that they be removed
from circulation or have them destroyed.

The patentee may require middlemen who
are being used by third parties as part of the infringing activities to cease
undertaking such activities.

The new provisions will only
apply to proceedings commenced after 1 July 2006.


interim injunction proceedings.

procedure has been used in Germany for some years and to great effect. Under the German system, the defendant has
the opportunity to challenge the grant of the interim injunction within a set
period. As pointed out in the Steinhauser Hoogenraad newsletter,
the Netherlands
version provides for compensation to the defendant should the injunction be

Descriptive seizure.

This sounds
very similar to the Saisie Contrefaçon which
is almost always granted at the commencement of patent litigation in France (Belgium
and Italy
have similar procedures). Click here
for a great summary of European procedures for obtaining evidence prior to
commencing litigation. (The article is
by Jochen Bühling of Krieger Mes
& Graf v der Groeben
and appeared in iam’s ‘IP
Value 2006’).

Possession, removal from circulation
or destruction of equipment.

These are
common remedies in many countries today.

Remedies against middlemen

This presents
an intriguing possibility as the Court may in many circumstances be ordering
a prohibition (or injunction) against a person (or company) who is not party
to the proceedings.

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