Procedure

Netherlands

Preliminary injunction proceedings. In cases of (special) urgency, a trade mark owner can file preliminary injunction (PI) proceedings, both on an inter partes and ex parte basis, with the competent regional (civil) court of law. The condition of urgency implies that the proceedings must be started within a short time frame of the trade mark owner becoming aware of the infringement, but there is no strict deadline under Dutch (case) law like in some other EU Member States.

Proceedings on the merits. If the infringer doesn’t acknowledge the PI as final and binding, the trade mark owner will have to file proceedings on the merits before the competent main (civil) court of law. If there is no (special) urgency, proceedings on the merits can be started directly. Proceedings on the merits can also be filed simultaneously with PI proceedings. Remedies available in preliminary proceedings are generally limited to injunctive relief. Damages for infringement, as well as revocation or invalidity of a trade mark can only be claimed in proceedings on the merits.

Warning letter. Before initiating infringement proceedings, the claimant should first send a cease and desist letter to the defendant, requesting a declaration in which the defendant agrees to stop using the conflicting sign immediately and subject to a contractual penalty payment. Following a warning letter, conflicts can often be settled out of court in a cost and time-efficient manner.

First instance. The Hague District Court has exclusive jurisdiction over cases on the merits based on the European Union Trade Mark Regulation (eg for infringement of an EUTM). Proceedings on the merits and PI proceedings based on national (Benelux) trade mark law (eg for infringement of a Benelux trade mark) are subject to national jurisdiction rules, meaning a claimant can usually go to the court of its choice. Trade mark disputes are heard by the competent regional (civil) courts, where they are often handled by specialised civil chambers or commercial chambers by judges specialising in IP.

Court of Appeal. An appeal may be lodged within three months of the first instance decision (in case of proceedings on the merits), or within four weeks of the PI decision. Filing an appeal does not suspend the effect of the first instance decision. The decision of the Court of Appeal may be appealed to the Dutch Supreme Court on two grounds only: infringement of the law or a breach of procedural rules.

In PI proceedings, the statutory rules of evidence do not apply. Therefore, any means of evidence is admissible. The (one panel) judge is free to decide whether sufficient allegations have been made and whether the facts have been established sufficiently to either grant or deny the relief sought. Witness and expert hearings will not take place as part of PI proceedings.

The admissibility of evidence in proceedings on the merits is dictated by the doctrine of judicial discretion in assessing evidence and assigning the burden of proof. Therefore, unless the law states otherwise, evidence can be provided by any means as long as brought forward in the procedure. Unlike PI proceedings, proceedings on the merits offer parties the possibility of hearing witnesses and experts and, under certain conditions, filingcertain additional evidence, if the existence of such evidence was claimed and offered.

A party claiming or relying on legal consequences of facts or rights will bear the burden of proving these facts or rights, unless a particular rule or the requirements of reasonableness and fairness call for a different allocation of the burden of proof.

Claimed facts not disputed by the other party are considered established facts. Judicial discretion in assessing evidence regarding the remaining contentions exists. In PI proceedings, the court must determine whether allegations and facts have been established sufficiently to either grant or deny the relief(s) sought.

Preliminary injunctions start with a (front loaded) writ of summons and planning of an oral hearing, which will usually take place within three to ten weeks of the service of the writ of summons. A decision is usually granted within two weeks of the hearing, with minor exceptions of three to four weeks. In cases of special urgency, a decision may be given at the hearing or within a few days. Ex parte injunctions are available provided the application substantiates that the matter is so urgent that delay would cause irreparable harm.

Proceedings on the merits also start with a (front loaded) writ of summons in which the claimant can chose an introduction date for the case. After introduction, the defendant will get a deadline of six weeks to file a statement of defence and possible counter claim proceedings. After that, the court will plan an oral hearing and, if applicable, a deadline for the defendant in the counter claim proceedings to file a statement of defence. Planning for an oral hearing usually takes around three to eight months. During or after the oral hearing, the court determines the time frame within which a decision will be given. The court generally strives to issue a decision within six weeks after the oral hearing. However, due to the current workload of many Dutch courts, a decision is rarely rendered after that first six-week period. There are no formal deadlines for the court to render its decision but in general a decision can be expected anywhere between 12 weeks and eight months after the oral hearing.

A decision before the Court of Appeal may be given in main proceedings within ten weeks of the hearing, whereas a decision regarding an appealed preliminary injunction decision may be given within six weeks. Again, due to the current workload of many Dutch courts, this time frame is usually exceeded.

In proceedings concerning the enforcement of intellectual property rights, Dutch procedural law provides that the losing party will be ordered to pay all reasonable and proportionate litigation costs of the winning party, unless fairness dictates otherwise. Dutch courts have imposed guidelines with indicative rates for such costs orders, which will only be deviated from in rare cases. In practice, the guidelines therefore contain maximum amounts of recoverable procedural costs. Depending on the complexity of the case, these costs range from EUR6,000 to EUR25,000 for PI proceedings and from EUR8,000 to EUR40,000 for proceedings on the merits, both at first instance.

In addition, court fees depend on the value of the case and are lower for natural persons than for legal entities. For example, cases with a value up to EUR100,000 incur courts costs of EUR2,889 for legal entities or EUR1,325 for natural persons. Cases with a value up to EUR1 million incur court costs of EUR6,617 for legal entities or EUR2,626 for natural persons.

Court fees must be paid within four weeks of the docket session (claimant) or within four weeks of the first appearance in proceedings (defendant).