19 February 2018Jurisdiction reportsMichiel Rijsdijk

Netherlands jurisdiction report: Director liability in trademark cases

It was already known that directors can be a party in trademark infringement proceedings in addition to the company they are directing. In 2002 the Dutch Supreme Court ruled that an order to cease and desist trademark infringing use can be made towards a company and also towards its directors.

This is the case when the trademark infringement occurred under the supervision of the director, ie, with knowledge and approval of the director. By promoting the trademark infringement or by not preventing it the director acted unlawfully towards the trademark owner. It must be likely that the director could have prevented the infringement and by not doing so he has acted unlawfully towards the trademark owner. In that case the liability of the company was not considered to be a sufficient deterrent; liability of the directors would be.

In the current case several companies had the same director. Those companies were offering clothes for sale, acts which constituted trademark infringement on the Tommy Hilfiger trademarks. The trademark infringement was established, and the liability of the companies, but what remained was the liability of the directors.

Court ruling

In a separate judgment the court ruled on this matter. The specific details of the case are shown below as the court takes a very practical approach to establishing liability and takes many factual circumstances into consideration.

The director knew or ought to have known he was selling products which were brought onto the market without the permission of the trademark owner. In emails he mentioned that the clothes were ‘cheap’ and ‘backdoor’. Furthermore he was personally involved in the sale of the goods and therefore the trademark infringement; when bailiffs came to seize the products he was on the premises where the infringing goods were found.

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