अरू कसैको लोगो प्रयोग गर्नु: कहिले ट्रेडमार्क उल्लङ्घन हो?

Using someone else’s logo without permission is unlawful in the Netherlands when the logo is a registered trade mark and you use it in the course of trade in one of the ways listed in Article 2.20 of the Benelux Convention on Intellectual Property (BCIP, in Dutch BVIE) or the corresponding provision of the EU Trade Mark Regulation. The main exception is referential use: under Article 2.23 BCIP you may use a mark to identify or refer to the owner’s goods or services, provided you do so in line with honest commercial practices.

A logo can also be protected by copyright and trade name law, and by the general tort rule of Article 6:162 of the Dutch Civil Code (BW). This article explains which right applies, when use is allowed, and what happens when the owner takes action.

Which rights protect a logo?

A logo can be protected by trade mark law, copyright and trade name law at the same time. Which right applies determines almost every practical answer, so check that first.

ट्रेडमार्क कानून is the main one. In the Benelux, trade mark rights arise only from registration, with the Benelux Office for Intellectual Property (BOIP) for the Netherlands, Belgium and Luxembourg, or with the EU Intellectual Property Office (EUIPO) for the whole EU. Under Article 2.9 BCIP a Benelux registration lasts ten years and can be renewed. Under Article 2.27 BCIP it can be revoked if the mark has not been genuinely used for an uninterrupted period of five years. Both registers are public and free to search.

प्रतिलिपि अधिकार protects a logo automatically under the Dutch Copyright Act (Auteurswet) if it is an original design bearing the personal stamp of its maker. A plain word in a standard typeface will not qualify; a distinctive graphic design usually will. Under Article 37 of the Copyright Act protection lasts until seventy years after the death of the maker, so an old logo can still be protected after its trade mark registration has lapsed.

व्यापारिक नाम कानून is often forgotten. Article 5 of the Trade Names Act (Handelsnaamwet) prohibits using a trade name that is so similar to an existing one that confusion is likely, given the nature and location of both businesses. No registration is needed.

Where none of these rights applies, Article 6:162 BW can still apply, for example to slavish imitation that causes avoidable confusion. Misleading and comparative advertising are regulated separately in Articles 6:194 and 6:194a BW.

When does use of a logo infringe a trade mark?

Article 2.20(2) BCIP gives the owner three main grounds to stop use; one is enough. All of them require use in the course of trade (economisch verkeer), which is why a private drawing is not an infringement and a printed T-shirt offered for sale can be.

Identical sign on identical goods or services

If you use a sign identical to the registered mark for identical goods or services, infringement is established without proof of confusion. This is the counterfeiting case: a registered logo on your own handbags, offered for sale.

Similar sign with a likelihood of confusion

This ground decides most real disputes. If the sign and the goods or services are identical or similar, the owner must show a likelihood of confusion on the part of the relevant public, including a likelihood of association.

Courts make an overall assessment. They compare the signs visually, aurally and conceptually and weigh that against the similarity of the goods and the distinctiveness of the earlier mark. The reference point is the average consumer, reasonably well informed and observant, who rarely sees both marks side by side. Intent is not required: you can infringe a mark you had never heard of.

प्रतिष्ठाका साथ चिन्हहरू

For a mark with a reputation in the Benelux or the EU, the owner does not have to show confusion. It is enough that use of a similar sign, without due cause, takes unfair advantage of or is detrimental to the distinctive character or repute of the mark. This protection applies whether or not the goods are similar.

When may you use another company’s logo?

Dutch and EU trade mark law has no general fair-use doctrine of the American kind. What it has is a closed list of limitations in Article 2.23 BCIP, plus exhaustion of rights and the rules on comparative advertising.

Referential use matters most in practice. Under Article 2.23(1)(c) BCIP the owner cannot prohibit use of the mark to identify or refer to goods or services as those of the owner, in particular to indicate the purpose of accessories or spare parts. This allows a garage to state which car brands it services and a shop to name the brands it stocks.

Every limitation is subject to one condition: the use must be in line with honest practices in industrial or commercial matters. The Court of Justice of the EU has given this content. Your use must not suggest a commercial connection with the owner, take unfair advantage of the mark, discredit it, or present your goods as imitations. In practice: use the word mark rather than the logo where the word will do, keep your own branding dominant, and avoid anything that looks like an official partner badge.

थकावट is the second limitation. Once genuine goods have been put on the market in the European Economic Area by the owner or with its consent, the owner cannot use the mark to oppose their resale, and the reseller may use the mark to advertise them. The exception is where the condition of the goods has changed or the advertising seriously damages the reputation of the mark.

Comparative advertising is allowed under Article 6:194a BW only on strict cumulative conditions. The comparison must not be misleading, must compare goods meeting the same needs, must objectively compare material, relevant, verifiable and representative features, and must not discredit the competitor or present goods as imitations.

Parody and criticism have no express exception in trade mark law, unlike copyright law, where Article 18b of the Copyright Act allows parody. A parody is protected mainly because it is not use in the course of trade, or because there is due cause in the light of freedom of expression under Article 10 of the European Convention on Human Rights. A joke printed on merchandise for sale is usually not safe.

What are the rules for logos online?

Most logo disputes now start online. Bidding on a competitor’s trade mark as a search keyword is not automatically an infringement, but reproducing the competitor’s logo in the advertisement or on your landing page is much harder to defend.

The Court of Justice of the EU has held that the decisive question for keyword advertising is whether a reasonably well-informed internet user can tell whether the advertised goods come from the trade mark owner or from a third party. An advertisement that clearly names your own business and suggests no link is generally permitted.

Marketplaces and social platforms are in principle not liable for their users’ listings, as long as they play no active role and act quickly once notified. Under the EU Digital Services Act, platforms must offer a notice-and-action mechanism, which gives brand owners a fast route to have listings removed.

A logo used as a profile picture or in an account name can be trade mark use and can breach the Trade Names Act at the same time. A .nl domain name that contains a mark can be challenged in the ordinary courts or in the dispute resolution procedure for .nl domain names; that procedure can only order transfer or cancellation, not damages.

What happens when the trade mark owner takes action?

Enforcement usually starts with a letter of formal demand (sommatie), followed by interim relief proceedings (kort geding) if you do not comply. In intellectual property cases the losing party pays the winner’s reasonable and proportionate legal costs under Article 1019h of the Code of Civil Procedure (Rv), not the low standard scale.

The demand letter typically asks you to stop, to sign an undertaking to refrain (onthoudingsverklaring) with a contractual penalty, to disclose suppliers and quantities sold, and to pay costs. That undertaking is a contract: the penalty can be claimed without any court finding of infringement, so do not sign it unread.

In urgent cases the court can grant an injunction without hearing you first under Article 1019e Rv. Under Articles 1019b-1019d Rv the owner can obtain leave to attach evidence in advance. Counterfeit goods at the EU external border can be detained by customs on the basis of an application by the rights holder.

On the merits, Article 2.21 BCIP allows the owner to claim damages and, in addition or instead, the profits made through the infringing use. The court can also order recall and destruction of goods. Deliberate trade in counterfeit goods is also a criminal offence under the Dutch Criminal Code. Our guide on नेदरल्याण्ड्समा बौद्धिक सम्पत्ति प्रवर्तन explains these procedures in more detail.

What should you check if you want to use another brand’s logo?

Most disputes are avoidable with a few cheap checks. Do them before the logo goes on your website, packaging or advertising.

• Search the BOIP and EUIPO registers for the mark and check for which goods and services it is registered.
• Ask whether naming the brand in words is enough; use the logo only if you really need it.
• Get written permission for customer logo walls, partner badges and co-branding, and check the brand guidelines.
• Avoid words like “official”, “authorised” or “certified” unless the relationship really exists; otherwise Articles 6:194 and 6:194a BW apply as well.
• Check any confidentiality clause in a former client contract before showing that client’s logo in your portfolio.
• If a designer made your own logo, make sure the copyright was assigned to you by a written deed, as Article 2 of the Copyright Act requires.

ब्रान्ड मालिकको रूपमा तपाईंले के जाँच गर्नुपर्छ?

Your enforcement options depend on what you registered and how you use it. Check these points before you send a demand letter.

• Is the logo registered with BOIP or EUIPO, for the right goods and services, and is the registration still in force?
• Have you genuinely used the mark in the last five years, so that it is not open to revocation under Article 2.27 BCIP?
• Does the other party’s use fall within referential use, exhaustion or comparative advertising?
• Have you preserved evidence of the infringing use, with dates and screenshots?
• For online listings, have you used the platform’s notice-and-action procedure?

What should you do if you receive a demand letter?

Do not sign anything the same day, but do answer in writing within the deadline set. Silence invites interim proceedings, and once an ex parte injunction has been granted, the burden of undoing it is yours.

First establish whether the mark is registered, for which goods and services, and whether it is still in force. Check whether your use falls within referential use or exhaustion, and preserve evidence of how and since when you have used your sign, because earlier use can give you rights of your own. Where infringement is clear, a negotiated undertaking with a proportionate penalty and a transition period is usually cheaper than litigation; the cost rule of Article 1019h Rv works in both directions. Related questions are covered in our articles on whether ह्यासट्यागहरू ट्रेडमार्क हुन सक्छन् र मा व्यापार गोप्यताको संरक्षण सम्बन्धी डच कानून.

What can we do for you with logo and trade mark disputes?

हाम्रो कर्पोरेट वकिल advise both brand owners and businesses accused of infringement.

• We search the BOIP and EUIPO registers and assess whether your planned use is referential use or infringement.
• We draft licence, co-branding and logo-design agreements, including the written assignment of copyright.
• We assess a demand letter and the proposed undertaking and draft your response within the deadline.
• We draft demand letters and platform notices and conduct interim relief proceedings for brand owners.
• We file oppositions and revocation actions at BOIP and handle .nl domain name disputes.

सारांश

• Using another’s logo in the course of trade infringes a registered trade mark on the grounds of Article 2.20 BCIP: identical use, likelihood of confusion, or unfair advantage of a mark with a reputation.
• Referential use under Article 2.23 BCIP, exhaustion and lawful comparative advertising are allowed, if they follow honest commercial practices.
• Copyright (until seventy years after the maker’s death) and the Trade Names Act can protect a logo even without a trade mark registration.
• In intellectual property cases the loser pays the winner’s actual reasonable legal costs under Article 1019h Rv, so take a demand letter seriously.

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