Intellectual Property law (IP) and Advertising

Copyrights are intended to protect ‘literary, scientific and artistic works’. This definition is very broad, pertaining to any work in which original, creative choices are made. It covers works ranging from texts, music, photographs, videos and paintings to television formats, articles of clothing, furniture, jewellery, designs, scents and even taste. Software is subject to copyright protection, too (see the section on our IT practice). The copyright owner holds the exclusive right to disclose (publish) the work and to reproduce (copy, share and so forth) it. Copyrights arise automatically when the works are created and need not be registered.

Design rights and copyrights often go hand in hand. Design rights seek to protect the appearance of a product or design. To qualify for protection, a design must be new and unique (hence, in short, it must be different from what is already available on the market). To obtain the broadest protection, a design has to be registered -“ for example, in the Benelux or EU – within one year after it is disclosed. Even if it is not registered, though, the product, as an unregistered EU design, enjoys protection against copying for three years.

Dutch law is predicated on the notion that imitation is permissible, as long as IP rights are not infringed. Yet there is an important exception to this principle: Imitation is not allowed if the ‘imitator’ could have nonetheless taken another route to creation without undermining the product’s soundness or usefulness in certain respects and, by having failed to do this, has caused confusion among the public. In that situation, a wrongful act claim may be asserted.

Patents protect technical inventions which are novel, inventive and susceptible of industrial application. The protection applies for a specific period, and, after the patent expires, the technology may freely be used by anyone. Patents pertain to technical products or methods. Thus, unlike with copyrights, design rights and the doctrine of slavish imitation, the design is completely irrelevant.

A trademark is a ‘sign to distinguish goods and/or services’. It may be a word, logo, colour, or certain combination of letters or numbers, as well as a product or package design. Businesses can distinguish themselves from their competitors through their trademarks. A trademark right arises when the trademark is registered. It is critical, then, that a trademark be registered as soon as possible, preferably, even before the trademark starts to be used. Registration of the trademark will prevent third parties from using the same or a similar sign for identical or comparable goods or services (and, in some cases, for totally different goods or services, too).

A trade name right protects a company’s name against a risk of confusion which may occur if another company engages in similar activities under a similar name in the same territory. Trade name rights are protected as soon as the name is used commercially. Merely registering the name at the Chamber of Commerce is insufficient. A trade name right offers less protection than a trademark.

Although domain names are not IP rights, they are often the subject of IP disputes. Typically, the registration or use of a domain name conflicts with a third party’s trademark or trade name, or the domain name was registered in bad faith. Such bad faith may be found if, say, the domain name holder trades in domain names on a large scale, systemically registers trademarks as domain names or seeks to impede a competitor’s operations through the registration.

Advertisements are a major tool which companies use to profile themselves and to make consumers and relevant market parties aware of their products or services. In their advertising campaigns, companies regularly push the boundaries of what is permissible and try to hook on to their competitors’ campaigns. IP rights often come into play. We provide advice on and litigate matters relating to all types of advertising, such as deceptive advertising, using others’ names or trademarks in advertising, promotional games of chance and unfair trade practices. Traditional advertising is also a focus, of course, along with advertising through social media and on the internet (Adwords, for instance).