18 May 2018Jurisdiction reportsMichiel Rijsdijk

Netherlands jurisdiction report: Trademark reform for the Benelux countries

This new step in harmonising the European market in the field of trademarks requires multiple changes in the legislation of the Benelux region; these changes are formalised in a special protocol to amend the Benelux Convention on Intellectual Property. Independently of the protocol for the implementation of the trademark reform package, the Benelux countries have agreed on other procedural changes regarding Benelux designs and trademarks.

Notable changes on a procedural level

The directive obliged the member states to introduce within seven years an efficient administrative procedure at their trademark offices, so that it will no longer be necessary to enforce a declaration of invalidity or nullity through a judicial procedure.

An administrative procedure is meant to provide a lower threshold to initiate action. The Benelux Office for Intellectual Property (BOIP) will offer such an administrative procedure in addition to the already existing judicial procedure.

In addition the appeals filed against decisions of the BOIP are centralised at the new Second Chamber of the Benelux Court. This increases the harmonisation and further prevents differing decisions between the courts of the Benelux countries. A commonly-heard complaint was that the court in Brussels appeared to be more flexible than the court in The Hague, which adhered to the strict refusal policy of the BOIP.

Other changes

The requirement of ‘graphical representation’ is abolished. A trademark won’t have to be represented graphically as long as it is represented in a manner that enables the subject matter of protection to be determined with ‘clarity and precision’.

This means that certain types of trademarks that can be represented in electronic format only are now acceptable; it will be possible to register a sound or a smell as a trademark if it meets the requirements of ‘clear and precise representation’.

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