CMS Expert Guide on Preliminary Injunctions in IP in Netherlands

In a preliminary injunction, in the Netherlands so-called interim relief proceedings, the following can be claimed in the event of infringement of intellectual property rights (such as copyrights, patent, trademark, neighboring,  data base and trade name rights):

• A prohibition on the infringement;
• Information on the origin and distribution of the articles (requesting details about where the infringing products came from and how they have been distributed);
• Recall of the infringing products from the market;
• Rectification regarding the infringement (requesting a public correction or statement to address the infringement);
• Advance on damages towards the damages you have suffered due to the infringement;
• Reimbursement of all (reasonable) legal costs.

Yes. It is not permitted to summon a party/person to court without prior notice to the opposing party.

Additionally, filing an application before sending a prior notice can result in an order to pay the legal costs.

There is no strict time frame for initiating an injunction. The plaintiff must demonstrate an urgent interest. In IP cases, urgency is typically assumed as long as there is systematic infringement that causes ongoing damage. There is no specified minimum or maximum period. However, in most cases, if the plaintiff waits for more than 6 months, he will lose urgency.

The duration of interim relief proceedings can vary between a few weeks and several months, depending on various factors, such as the availability of the court, the degree of urgency, and whether the opposing party makes use of the postponement options. In most cases, the claimant will receive a PI judgment within 4-8 weeks.

Ex parte PI proceedings:

The interim relief judge aims to decide on the ex parte request within as short a period as possible (a few days at most) after the request is received.

Yes, PI proceedings can be suspended at the request of both parties. However, the claimant may lose their urgent interest.

The applicant must provide sufficient evidence to demonstrate its claim. This can include documents, witness statements, expert opinions, and other relevant materials.

Yes, it is possible to obtain an ex parte preliminary injunction. This is typically reserved for cases where immediate action is necessary to prevent significant harm. 

Further, the judge will only grant an ex parte PI if he finds that there is truly no time to hear the other party.

Urgency in ex parte cases is much stricter than in interim relief proceedings. Not only are high demands placed on the urgency of the matter, but the validity of the claimed right and the alleged infringement must also be highly plausible based on the available evidence. However, the higher the urgency of the requested injunction, the more leniently the plausibility of the infringement is assessed. These are interconnected factors.

If the PI is successfully granted, the costs incurred by the applicant, including court fees and legal services fees, are partially recoverable from the counterparty. 

No.

Yes. However, this does not automatically suspend the effect of the PI unless the court orders otherwise, e.g. after granting such a request of (one of) the parties.

The duration of appeal proceedings generally varies between one and two years, depending on various factors, such as the availability of the court of appeal, the degree of urgency, and whether the opposing party makes use of its postponement options.

The judge can declare a final decision enforceable immediately, either upon request or ex officio. "Enforceable immediately" means that a judicial decision can be executed right away, even if an appeal or opposition is still pending.

Various legal measures are available to enforce compliance with a preliminary injunction, including fines, seizure of goods, and other enforcement actions as claimed by the applicant and granted by the court.

Yes.

In a PI, the judge provides a provisional judgment on the infringement. For a definitive judgment, main proceedings must be initiated. However, this is not mandatory. It is common for the main proceedings to be omitted, and the preliminary injunction judgment is then accepted as the final judgment.