Protect your work with intellectual property

Have you discovered misuse of your work? Then act as soon as possible. First determine which IP rights you can draw on. You get certain rights automatically, while you must register for others. Then estimate if it is worth countering the abuse. Even if you have an exclusive right, such as patent right, procedures are costly and time-consuming. It is often wise to engage a specialist to determine the best course of action.

Read more below about the most common IP rights, laws that protect you and the actions you can take in case of abuse.

• Copyright
• Design rights
• Trademark rights
• Patent
• Trade Names Act
• Trade Secrets Protection Act 
• Protecting ideas and concepts

Copyright

If you write a text, create an illustration or, for example, a photograph, it is automatically copyrighted. You do not have to do anything or register anything for that to happen. You have copyright only if the work is original and if characteristics of the creator can be recognised. Copyright is valid until 70 years after the death of the creator.

Infringement

Is someone using your photo on a website or copying all or part of a publication written by you? If so, this may infringe your copyright.  Because no one is allowed to publish or copy your work without your permission. This applies even if someone makes minor adjustments to your work.

This is what you can do

• Contact the party who is using your work without permission. Request that the copied work be removed or rectified. Specify exactly what text, music, photo or illustration is involved. Also specify a deadline by which you want the work removed. You can also claim damages or compensation in such a situation.

• Negotiate with the abuser to find a financial or other solution without involving the court. For example, you might transfer the copyright in return for payment, or grant the right of use.

• Are written materials on websites involved? Report this via Google Search Central. If the notification is justified, Google may remove the text that has been copied from its search results. You can also report infringement to Centraal Meldpunt Nederland, the reporting centre.

• Ask for compensation through the court for the income you are loosing if those who are misusing your work refuse to work with you to come to a settlement. Make sure you substantiate properly the amount you have lost. A legal process costs a lot of money and time. Get legal help to assess whether litigation is feasible.

Prevention

Once your work is public, it is difficult to prevent someone from misusing it. When publishing, include your name and date to discourage misuse. Indicate that the work may not be used without permission or acknowledgement of its source. This is how you report that you are the creator of the work. You can also use the copyright sign ©. This has no legal basis in the Netherlands but it serves as a deterrent.

Registering your work in the i-DEPOT of the Benelux Office for Intellectual Property gives you proof that you are the first. Doing that will help if you get into a legal dispute with the party who is misusing your work.

Plagiarism and copyright infringement

Using or copying someone else’s work, thus giving the impression that it is yours, is known as plagiarism. This may also be copyright infringement. Copyright is valid until 70 years after the death of the creator. In that case there can be no copyright infringement. But it is plagiarism. Plagiarism is not a legal term. You are most likely to succeed if you act when copyright is infringed. If this is not the case, start a conversation with the party who plagiarised your work.

Copyright online

European rules (in Dutch) protect online copyrights and apply across Europe. Anyone who uses someone else’s copyrighted work has an obligation to be transparent. This means that the user provides information on how they use the work, what their income is, and how payment to the copyright holder is done.

It gives press publishers a better bargaining position. Online news services are not allowed to use newspaper articles and news reports just like that, for example. A news service must first obtain permission for this and pay publishers for their use. Posting hyperlinks or snippets of text without permission is allowed. This protection applies for one year after publication of the newspaper or news article.

For educational institutions, the rules are a bit more flexible. If you share copyrighted work in the classroom or in a private educational network to which only students and teachers have access, no permission is needed. Libraries and museums can digitise all paper-based work and make it available online. This does not require permission from the rights holders.

Online platforms whose purpose is to allow users to post digital material are liable if copyrighted work is posted. YouTube and various forums are examples. These services must sign licences with rights holders in advance, or make every effort not to post such material. They should also set up complaint and grievance procedures for anyone who feels their rights have been infringed upon. These strict rules do not apply to platforms that have fewer than 5 million visitors per month, take in less than €10 million in turnover per year, and are less than three years old.

Citation or quote

Also pay attention when using quotes. If a quote has its own original character or a personal stamp of the creator, it may also be copyrighted. You can also register a quote as a wordmark at the Benelux Office for Intellectual Property (BOIP). If you do, it may not be used by others for commercial purposes. You cannot register a citation. You may use a citation without permission, as long as you include the source and the author’s name. A citation must be substantively relevant, and you should not cite more than strictly necessary. The citation right is an exception to copyright law.

Design rights

Design rights protect styling, design and conception. One condition is that it is new, has its own character and is not defined by technology. A model, such as a pattern for clothes or the design of a utensil, is two- or three-dimensional. It is purely about looks. That is, about colour, outline, shape, the use of materials, and so on.

To protect styling, a design, or a concept, you need to register it. The protection is not automatic. After you have registered the design with the BOIP, you have the exclusive right to use it. You then hold that right for an initial term of 5 years. After that, you can renew it up to 4 more terms of 5 years each. This applies within the Benelux. You can also register the design so that it is protected Europe-wide or globally.

Design rights are only about appearance. Technical function is covered, not by design rights, but by patent law.

Infringement

If someone markets something that has a look that is almost the same as the one you have protection for, they are infringing on your exclusive right. It is just as if the product is giving the impression that it is the original.

This is what you can do

• Engage in negotiations with the party that has misused your work. As the design holder, you can transfer your design right for a fee. You can also license your design right for a fee. That means that someone will pay to use the model for a certain period.
• Go to court to ban use of your model. The court will look at whether the designs are similar, and whether they make a different overall impression. If the court determines that there are just a few differences, it will usually find that there has been an infringement. If it determines that there is a different overall impression in each case, it will usually not rule in your favour.

Whether there has been an infringement is often about the details. This makes things more complicated. Engage an intellectual property lawyer.

Trademark rights

A trademark is a sign that you use to distinguish products or services from those of your competitors. It can comprise words (wordmarks), but also a logo (a pictorial mark), a certain colour or shape, or even a sound.

Trademark rights do not arise automatically: you must register them with the BOIP. You register them for the Benelux, but possibly also for Europe, or globally. The more extensive the protection, the higher the cost. You have the exclusive right to use your trademark within the territory for which you have registered it. That right lasts for 10 years. You can extend this indefinitely. You register a trademark for different classes of goods and services. The more classes you do this for, the more extensive the protection, and the higher the cost. You can also use the services of specialised trademark agencies to register your trademark. They will help see to it that the trademark is recorded in the right way.

Infringement

Trademark rights are laid down in the Benelux Convention on Intellectual Property (BCIP). Infringement occurs when a sign is identical or similar to the registered trademark and is used for the same products or services; if use of the sign is detrimental to the brand, damages its reputation, or creates false associations; or if someone benefits from association with the brand for no good reason.

This is what you can do

• Try to reach an out-of-court settlement with the party who has misused your work. Make a mutual financial settlement or get the other party to withdraw the goods, supplies, or renditions in question.
• If you fail to reach a settlement, you can enforce a ban on using the trademark with a penalty through the court. You can also demand other measures through proceedings. You might have goods attached, for instance, or claim damages. If there is infringement, bring in a specialist.

Patent

Patent rights help you protect a technical product or production process. You prohibit someone else from using your invention commercially for a certain period of time. You have an exclusive right to what you have developed. A patent is applicable after registration, and patent protection is granted if the invention meets three criteria. It must be new, inventive, and original. In addition, you need to be able to apply it industrially.

Once you apply, it takes about 18 months until you have a patent. From then on, your invention is protected for up to 20 years. You apply for patents on a country-by-country basis. For the Netherlands, you apply for a patent at Octrooicentrum Nederland. You can also apply for aEuropean patent, protecting the ownership of your innovation and enforce it in 17 EU countries.

Infringement

If someone copies your patent-protected invention, they are infringing on your exclusive rights.

This is what you can do

• Ask them to stop. Let them know what you will do if they persist. More often than not that will already serve as a deterrent. Take action as soon as possible if you discover or suspect infringement.
• Negotiate together to come to a resolution. That will obviate the need for a time-consuming and costly procedure. Perhaps you can work together with whoever has infringed on your rights.
• Grant them a licence to use your patent, so they can continue to use the invention for a fee. This can benefit both parties.
• In the worst case, you can start legal proceedings. You can require the abuser to stop the infringement, destroy the stock or withdraw the products from sale. You can also claim damages.

Are you unsure whether there has been an infringement? Seek advice from a patent or other specialised lawyer. To conduct infringement proceedings, you must go to a patent lawyer.

Revision of European patent system

The European patent system has been revamped 1 June 2023. You can now opt for a European patent with self-selected countries or a unitary patent. The unitarypatentis a new patent valid in 17 member European countries.
To enforce the unitary patent, you can go to the new European Patent Court (Unified Patent Court) with a division in The Hague. The advantage is that you no longer have to deal with different national patent offices and national courts for registration and enforcement.

Trade Names Act

You use a company name to distinguish your business. A company name is officially known as a 'trade name'. This act protects trade names. It also sets out rules that your company name must comply with.

The right to your trade name takes effect from the moment you start actually using it. For example, when you use it in advertising, on invoices you send, or on business cards you hand out. Merely registering it in the Business Register at KVK is not enough.

Infringement

A person or company may not use a company name that, because it is similar to your existing company name, may be confusing to members of the public, such as customers or suppliers. Whether confusion arises depends on the similarity in the name, the extent to which the activities are similar and the overlap of the field of activity (the area in which the company operates).

This is what you can do

Do you think another company’s name is too similar to yours, or that that similarity could be misleading or cause confusion? And does that impact you? Try to resolve the matter between yourselves first. Get in touch or send a message, perhaps through a lawyer. If that does not do the trick, start court proceedings.

Trade Secrets Protection Act

If your product or production process is not technical in nature, secrecy is a good alternative to patenting. The Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen, Wbb) affords entrepreneurs protections so they can act against infringements on their trade secrets. A trade secret must satisfy 3 conditions to count as such:

• The information in question is actually secret. It is not widely known or easily accessible.
• The information has trade value. It gives the owner a commercial advantage by virtue of being secret.
• You have taken sufficient measures to keep the trade secret confidential.

With trade secrets, there is no time limit to protection.

Infringement

A person infringes trade secrets if they underhandedly steal trade secrets or knowingly try to obtain protected information or files.

This is what you can do

If you can prove that someone has obtained, used, or disclosed your trade secret unfairly, you can petition the court for:

• A ban on someone else’s disclosing your trade secret, for example during legal proceedings.
• A ban on producing or trading in products that are made based on your trade secret.
• The recall, withdrawal, seizure, or destruction of these products.
• Compensation for damages
• Publication of the court’s decision.

Protecting ideas and concepts

If you have an idea, it cannot be protected as intellectual property. Do you often have ideas? In that case, it is handy to have a simple way to prove that a given idea is yours or that it already existed at some point. For instance, in a discussion you had with someone about it.

At the BOIP, you can register your idea or concept through an I-depot. This is a means of proof that you can use for different purposes and in relation to different intellectual property rights. It does not afford exclusive protection in the way that patent or trademark rights do, for instance. You just set the date.

Help

Do you have copyright questions that you are finding difficult to answer?  Just get in touch with KVK. Together, we can explore what your situation is and how we can help you along. Or visit the create, protect & benefit platform, which aims to make business owners aware of the benefits of intellectual property.