AKD updates

Use of customs information in relation to parallel imports
AKD
  • Intellectual Property
  • Netherlands
  • 06 July 2020

The Hague District Court recently had to answer the question of whether information acquired during a customs seizure under the EU Anti-piracy Regulation may be used for an unauthorised parallel import claim. The regulation provides an effective means and procedure for IP rights holders to request Customs to intercept consignments suspected of containing counterfeit or pirated goods and to have said goods destroyed.

DPA fines social media platform for data processing during referral programme
AKD
  • Tech, Data, Telecoms & Media
  • Belgium
  • 03 July 2020

The Belgian Protection Authority (DPA) recently fined a social media platform €50,000 for processing personal data during the scope of a referral programme without an appropriate legal basis. This decision is particularly relevant because it was rendered on the basis of the one-stop-shop mechanism and all of the national authorities concerned validated the DPA's reasoning.

Debt collection during COVID-19
AKD
  • Litigation
  • Netherlands
  • 02 June 2020

The COVID-19 outbreak is greatly affecting legal matters and company wellbeing. Some companies can no longer comply with their contractual obligations, while others have become financially distressed. To ensure that creditors do not make improper use of the measures available to collect a debt or ensure recourse, the question has arisen as to whether the courts should change the way in which they assess such measures.

Dutch court of appeal diverges from German appellate court in G-Star case
AKD
  • Litigation
  • Netherlands
  • 21 April 2020

In 2019 The Hague Court of Appeal overruled a first-instance court decision even though that court had followed an earlier German higher court decision based on the principle of loyalty under EU law. The Dutch judgment demonstrates that trademark law specifics can easily stand in the way of the EU principle of loyalty. It is also a useful reminder that, in the context of trademark infringement assessments, a trademark's level of distinctiveness is a substantial aspect, but one which can change due to evolving market circumstances.

Dutch court of appeal diverges from German appellate court in G-Star case
AKD
  • Intellectual Property
  • Netherlands
  • 20 April 2020

In 2019 The Hague Court of Appeal overruled a first-instance court decision even though that court had followed an earlier German higher court decision based on the principle of loyalty under EU law. The Dutch judgment demonstrates that trademark law specifics can easily stand in the way of the EU principle of loyalty. It is also a useful reminder that, in the context of trademark infringement assessments, a trademark's level of distinctiveness is a substantial aspect, but one which can change due to evolving market circumstances.

Burden of proof remains with shipowner in proving terminal operator liability
AKD
  • Litigation
  • Netherlands
  • 31 March 2020

The loading and unloading of cargo from ships is a key element in the transport chain. However, ships are sometimes damaged during these operations. This raises the question of whether – and on what grounds – a terminal operator can be successfully held liable for such damage. A recent Rotterdam District Court decision upheld the standard of liability established in Dutch case law, confirming that the burden of proof lies with the shipowner when it comes to demonstrating terminal operator liability.

Burden of proof remains with shipowner in proving terminal operator liability
AKD
  • Shipping & Transport
  • Netherlands
  • 25 March 2020

The loading and unloading of cargo from ships is a key element in the transport chain. However, ships are sometimes damaged during these operations. This raises the question of whether – and on what grounds – a terminal operator can be successfully held liable for such damage. A recent Rotterdam District Court decision upheld the standard of liability established in Dutch case law, confirming that the burden of proof lies with the shipowner when it comes to demonstrating terminal operator liability.

Application of principle of effectiveness could lead to exclusion of national limitation rules
AKD
  • Litigation
  • Netherlands
  • 24 March 2020

The Amsterdam Court of Appeal recently rendered a landmark judgment that the claims brought by claim vehicle CDC against Kemira Chemicals Oy were not time barred. The court's judgment provides additional legal certainty in the field of private antitrust enforcement. If upheld before the Supreme Court, this ruling will set a new standard wherein (Dutch) courts will be able to extend or even set aside applicable limitation rules from national regimes in follow-on proceedings.

Injunction against 'foreign' director for IP infringement based on Dutch law on liability of directors
AKD
  • Litigation
  • Netherlands
  • 10 March 2020

In preliminary proceedings, The Hague District Court recently assessed whether an injunction could be granted against an Irish director of a company based in Ireland in relation to a copyright infringement in the Netherlands. This judgment is a useful reminder that company directors who are not domiciled in the Netherlands can be liable under Dutch law on directors' liability when offering infringing products in the Netherlands.

Injunction against foreign director for IP infringement based on Dutch law on directors' liability
AKD
  • Intellectual Property
  • Netherlands
  • 09 March 2020

In preliminary proceedings, The Hague District Court recently assessed whether an injunction could be granted against an Irish director of a company based in Ireland in relation to a copyright infringement in the Netherlands. This judgment is a useful reminder that company directors who are not domiciled in the Netherlands can be liable under Dutch law on directors' liability when offering infringing products in the Netherlands.

Competence of district courts in summary proceedings relating to EU Community designs
AKD
  • Litigation
  • Netherlands
  • 18 February 2020

The Supreme Court recently requested a preliminary ruling from the European Court of Justice (ECJ) concerning the competence of district courts in summary proceedings relating to EU Community designs. An immediate consequence of the ECJ's decision is that district courts other than the one in The Hague will be unable to provide provisional measures in cases relating to EU trademarks.

New class actions act promotes efficient and effective settlement of large-scale damages cases
AKD
  • Litigation
  • Netherlands
  • 28 January 2020

The Netherlands has always been at the forefront of the European Union in enabling collective redress for affected parties in mass damages cases. Since 1994, claims organisations have been able to pursue legal action on behalf of affected parties. However, the Civil Code prohibited claims organisations from pursuing damages claims. This practice has now changed significantly following the entry into force of the Act on the Resolution of Mass Claims in Collective Action.

Competence of district courts in summary proceedings relating to EU community designs
AKD
  • Intellectual Property
  • Netherlands
  • 13 January 2020

The Supreme Court recently requested a preliminary ruling from the European Court of Justice (ECJ) concerning the competence of district courts in summary proceedings relating to EU community designs. An immediate consequence of the ECJ's decision is that district courts other than the one in The Hague will be unable to provide provisional measures in cases relating to EU trademarks.

The Netherlands – a hotspot for provisional and conservatory measures
AKD
  • Shipping & Transport
  • Netherlands
  • 04 December 2019

Ports in the Amsterdam, Rotterdam and Antwerp region are historically known as ship arrest paradises. However, there are developments in connection with conservatory measures which are less well known and that have not been extensively reported on. These developments concern securing evidence following a landmark Supreme Court ruling in 2013, which has served as a starting point for several cases.

Court rules on inventor's failure to transfer a patent
AKD
  • Litigation
  • Netherlands
  • 29 October 2019

The Hague District Court recently rendered a judgment regarding an inventor's failure to cooperate with the exploitation of his patents. The claimant had alleged that the defendant's refusal to cooperate with the transfer of the patent to a foundation (which would have subsequently granted the claimant a licence) had prevented it from exploiting the patent, including sub-licensing it to third parties.

Flying the Dutch flag: opportunities for shipowners
AKD
  • Shipping & Transport
  • Netherlands
  • 23 October 2019

Flying the Dutch flag has unfortunately become less popular with shipowners over the past 10 years. Although the exact reasons for this fall in popularity are unknown, the presumption that flying the Dutch flag is limited by the location of the vessel's owner may be a contributing factor. However, although on the face of it only European shipowners appear to be able to obtain a nationality certificate, the scope for flying the Dutch flag is actually much wider.

Locating pure financial damage in cross-border securities class actions: clarity on the horizon?
AKD
  • Litigation
  • Netherlands
  • 22 October 2019

Determining a court's jurisdiction in cross-border class actions involving pure financial damage has proven difficult in practice. This is particularly true when jurisdiction is based on the special competence rules set out in the recast EU Brussels Regulation. The Dutch Shareholders Association v British Petroleum is a good example of the confusion surrounding this matter. After two lower court rulings, the Dutch Supreme Court has applied to the European Court of Justice for a preliminary ruling to gain further clarity.

Court rules on inventor's failure to transfer patent
AKD
  • Intellectual Property
  • Netherlands
  • 21 October 2019

The Hague District Court recently rendered a judgment regarding an inventor's failure to cooperate with the exploitation of his patents. The claimant had alleged that the defendant's refusal to cooperate with the transfer of the patent to a foundation (which would have subsequently granted the claimant a licence) had prevented it from exploiting the patent, including sub-licensing it to third parties.

Court removes need for bailiffs to board ships to execute arrests
AKD
  • Litigation
  • Netherlands
  • 01 October 2019

The Netherlands has long been considered one of the most favourable jurisdictions in which to arrest a ship. A recent Aruba Court ruling is set to enhance this reputation by further liberalising the procedural rules, removing the need for a bailiff to board a ship in order to execute an arrest. The decision is expected to play a role in ship arrest cases throughout the Kingdom of the Netherlands where bad weather conditions, or even deliberate obstruction, may prevent bailiffs from boarding ships.

Court removes need for bailiffs to board ships to execute arrests
AKD
  • Shipping & Transport
  • Netherlands
  • 25 September 2019

The Netherlands has long been considered one of the most favourable jurisdictions in which to arrest a ship. A recent Aruba Court ruling is set to enhance this reputation by further liberalising the procedural rules, removing the need for a bailiff to board a ship in order to execute an arrest. The decision is expected to play a role in ship arrest cases throughout the Kingdom of the Netherlands where bad weather conditions, or even deliberate obstruction, may prevent bailiffs from boarding ships.