Infringement & enforcement
If you believe that your rights are being infringed or if you are accused of infringement, various claims can be brought by or against you.
Some claims that are frequently filed:
- incremental penalty (per breach or unit of time), committal for failure to comply with a judicial order
- property surrender claim, recall, destruction, rectification/letter to
- disclosure of supplier and further information
- publication of the judgment
- advance on damages
- a full cost award according to new legislation concerning the enforcement of IP rights
- and, possibly, also a surrender of profit claim and/or damages, annulment or cancellation
A great many IP cases are settled out of court. And if a court has to render a decision, it is often in ‘preliminary relief proceedings’ (kort geding), followed by a settlement agreement.
Further, infringing goods can be attached. The customs authorities may be asked to intercept infringing products at the border. And for some time now, it has been possible to attach documents and other items in order to gather proof of a potential infringement.
In the Netherlands, the general rule in ordinary court proceedings is that the unsuccessful party is ordered to pay a fixed cost amount. The European legislator has created another legal costs system for IP cases. This system has been enshrined in Dutch law. In cases involving intellectual property rights, it is now possible to claim the actual costs incurred. In many cases, costs are awarded in the range of €15,000 or much higher.
The flip side is that the system of condemnation in the full costs has increased litigation risks in IP cases for both parties.