Netherlands, AKD NV updates

Intellectual Property

Contributed by AKD NV
Supreme Court addresses confusion between descriptive, non-distinctive trade names
  • Netherlands
  • 05 April 2021

Under the Trade Names Act, descriptive trade names can enjoy protection against the use of identical or similar trade names if such use is likely to confuse the public. However, case law suggested that this would be the case only where additional circumstances resulted in unlawfulness. A recent Supreme Court decision resolves the discrepancy between the legal framework and the case law.

Hema crocodile takes bite out of Lacoste trademark
  • Netherlands
  • 18 February 2019

The Hague District Court recently issued a preliminary ruling in which it held that Lacoste could not invoke its famous crocodile trademark in order to prohibit the use of a crocodile motif on children's underwear. This preliminary judgment is one of only a few examples in which the use of a sign has been considered purely decorative (and thus could not be perceived as trademark use). Typically, the courts are restrictive in accepting such a defence.

No copyright protection for taste of food
  • Netherlands
  • 24 December 2018

The European Court of Justice (ECJ) recently rendered its decision in the dispute between Dutch parties Levola and Smilde concerning Levola's cream cheese product. The Arnhem-Leeuwarden Court of Appeal had referred a number of prejudicial questions to the ECJ – in particular, whether a taste can be eligible for copyright protection. Among other things, Levola argued that disallowing copyright protection for the taste of foodstuffs would be contrary to Dutch Supreme Court case law.

adidas knocked out in trademark infringement case: McGregor IP maintains right to use Conor McGregor's name
  • Netherlands
  • 26 November 2018

The Hague District Court recently rendered an interim judgment in a matter between Dutch limited liability company McGregor IP BV and adidas. The key question in this case was whether adidas – in using the name of a sports hero on items such as hoodies, shorts and jerseys – had infringed McGregor IP's trademark rights. Notably, the outcome of this matter could have been different had the design and display of the signs at issue been different.

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
  • Netherlands
  • 24 September 2018

In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.


Litigation

Contributed by AKD NV
Supreme Court addresses confusion between descriptive, non-distinctive trade names
  • Netherlands
  • 06 April 2021

Under the Trade Names Act, descriptive trade names can enjoy protection against the use of identical or similar trade names if such use is likely to confuse the public. However, case law suggested that this would be the case only where additional circumstances resulted in unlawfulness. A recent Supreme Court decision resolves the discrepancy between the legal framework and the case law.


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