9 May 2016Jurisdiction reportsMichiel Rijsdijk

Netherlands: walking the walk on claims of infringement

In the Netherlands, this is called a ‘wapperverbod’, which can be roughly translated into a ‘ban on waving around (with claims)’. Waving in this context has a negative connotation and refers to the way other parties are made aware of the claims. If a party claims that its IP rights are being infringed, there should be valid IP rights and the claim should also be acted upon.

Defendants can claim that the other party is giving false statements about its (lack of) IP rights or infringement of those rights. Defendants can ask a judge for a prohibition which will no longer allow the other party to give any information stating that they are infringing the party’s IP rights, especially to potential customers.

This is the so-called wapperverbod. It means that parties claiming infringement should also act on those claims.

In principle, it is not unlawful for an IP owner to give statements, send letters or express in any other way concerns in order to prevent or combat an infringement.

This is different if the IP owner is not acting in good faith. Then, the statements can be unlawful. In interlocutory proceedings, a request for a wapperverbod will be granted only in exceptional cases. In any event the party requesting a wapperverbod should have an interest in the ban. Without any interest the claim will not be granted.

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