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E-commerce

Netherlands

The Ministry of Economic Affairs has taken receipt of the Notice and Takedown Code of Conduct, which is the result of a year of negotiations between market parties and government agencies. The purpose of the code is to enable the efficient removal of illegal or unlawful content from the Internet.

Intellectual Property

Netherlands

The Supreme Court recently considered the scope of patent protection for first time in five years. The court gave primacy to Article 69 of the European Patent Convention (EPC), opining on the relationship between Article 69 and the related protocol. Unfortunately, the court appeared to draw on national case law only, rather than considering the practice in other EPC jurisdictions such as Germany and the United Kingdom.

The Dutch Supreme Court recently referred questions to the European Court of Justice for a preliminary ruling on the interpretation of the absolute grounds for refusal of trademark protection for signs which consist exclusively of "the shape which gives substantial value to the goods" under Article 3(1)(e)(iii) of the EU Trademark Directive.

Recent decisions of the Dutch courts have confirmed that unless the European Court of Justice rules otherwise in the Solvay case - expected to be decided in Summer 2012 - patentees and trademark holders can obtain cross-border injunctions against Dutch defendants in The Hague in preliminary proceedings notwithstanding a foreign nullity defence.

The Internet enables brand owners to communicate with a global audience, but also enables infringement on a large scale. The use or depiction of protected brands and works in a virtual environment can be actionable just as much as in the real world, including the use or trading by gamers of virtual objects or services that use a brand, design or trade dress from the real world.

The Hague District Court has recently ruled that as of the European Patent Convention 2000 coming into force, the so-called ‘Spiro/Flamco doctrine’ for partial nullification or maintenance of a patent which was established in Dutch case law no longer applies to European patents.

Telecommunications

Netherlands

The auction of 2.6 gigahertz frequencies will take place in the first quarter of 2010. This is the fourth time that the date of the auction, which was initially set for 2007, has been postponed. The latest postponement is due to the addition of a sixth licence to the auction.

The Independent Post and Telecommunications Authority has published policy rules governing tariffs for access to fibre networks. The policy rules seek to strike a balance between promoting competition and encouraging innovation. They encourage efficient investment in fibre networks so as to allow competitors access to these networks without having to pay an excessive price.

The Dutch Telecommunications Authority (OPTA) published a draft market decision for wholesale fixed termination access (FTA) on August 15 2008. In the draft decision OPTA sets out the remedies for the regulatory period starting January 1 2009. In comparison to the current regulatory framework, the most significant change is the imposition of symmetric maximum termination rates.

The Dutch Telecommunications Authority (OPTA) has published draft market decisions covering the markets for fixed telephony, broadband and leased lines. In the draft decisions OPTA sets out the remedies for the regulatory period ahead. Notably, the decisions dispense with incumbent KPN's current retail obligations on the fixed telephony market.

The Radiocommunications Agency Netherlands has imposed an order for incremental penalty payments after finding that mobile telecommunications operator Telfort had violated the rollout obligations of its Universal Mobile Telecommunications System licence. Telfort faces a €5 million fine for every three-month period of non-compliance.