Inhoud
What is Intellectual Property?
Intellectual property is a product of the human mind. That sounds fairly abstract, but refers to an idea, a product, a process, a shape (e.g. a logo) or some other type of creation. You can protect these forms of expression by intellectual property rights. This is a collective name for the following intellectual property rights:
- Patent rights
- Trademark rights
- Design rights
- Plant breeder's rights
- Copyright
- Trade name rights
- Chip rights
- Database rights
Intellectual property is abbreviated to IP.
If an invention, a product design, a trademark, a piece of music or software, a text or photograph is subject to intellectual property rights, the owner has the exclusive right to use it on a commercial basis.
It is generally possible to establish several intellectual property rights on a product or service alongside each other. You could, for example, have an exclusive design right on the design of the casing of a 3D printer, while the trademark is registered in the trademarks register and the operation of the printhead is protected by a patent.
Intellectual property rights
Intellectual property rights (IP rights) give the owner of these the exclusive right to do the following with the invention or creation:
- make it;
- use it;
- put it into circulation;
- lease it;
- supply or trade in it;
- offer it on a commercial basis;
- implement it;
- and/or keep it in stock.
The owner of an IP right therefore determines who may use it. This can be the owner themselves, but it can also be other parties if they obtain a licence for the right from the owner. This means that intellectual property rights create a (temporary) monopoly position. This is inherent to IP law and is intended to enable an entrepreneur to recoup his or her investment in an innovation.
Establishing intellectual property rights
The various types of intellectual property rights are established in different ways. For the majority of intellectual property rights, you will need to take action yourself to establish them, but some of them arise automatically.
Registered rights for which you have to apply include:
- Patent rights
- Design rights
- Trademark rights
- Plant breeder's rights
- Chip rights
Unregistered rights for which you do not need to apply. These intellectual property rights arise automatically without you having to apply for them.
- Copyright
- Trade name rights
- Database rights
Registered rights
Patents
APPLICABLE TO
Inventions of a technical nature. A patent can be used to protect a solution to a technical problem. A patent may be focussed on a product, a process, a chemical composition or a use.
OBTAINABLE BY
Filing a patent application. This is a legal document in which the invention is explained with the aid of text and generally a number of images. The so-called claims at the end of the document are a summary of the essence of the invention.
REQUIREMENTS
When it comes to obtaining a patent, the two most important criteria are the novelty and inventive step of the invention. Novelty means that the invention must not have been made public anywhere when the patent application is filed. Inventive step means that the innovation is not obvious for a person skilled in the art.
PERIOD OF PROTECTION
Subject to the payment of renewal fees, a patent right can remain valid for a maximum period of 20 years, excluding a possible priority year. In the case of patents on drugs it is possible to obtain protection for a longer period. Read this blog by Thomas for more information on a priority year and the period of protection of a patent.
INDICATION OF THE COSTS OF A PATENT
Depending on the complexity of the invention, the costs of having a Dutch patent application drawn up and filed by a patent attorney range from € 6,500 to € 8,500. This includes the compulsory filing fees and a novelty search. Renewal fees are payable after a certain number of years. The costs involved in expanding patent rights to countries outside the Netherlands depend on the countries in which protection is required and the strategy being followed to obtain that protection.
Design protection
APPLICABLE TO
Innovations in product design. A design registration can be used to protect the appearance of an item (2D or 3D).
OBTAINABLE BY
Filing a design registration. This is a legal document in which a design attorney lays down the design with the aid of drawings or photos. Just like when drafting the claims of a patent, it is important to carefully consider how we do this when laying down a design. After all, when you lay details down in a design registration it means that you are claiming them
REQUIREMENTS
The most important criterion for obtaining a valid design right is that the design has an 'individual character' compared to known designs. In many countries, including those in the EU, a design must be registered within 12 months after it was first disclosed. We nevertheless recommend that you register the design prior to disclosure.
PERIOD OF PROTECTION
A design registration is valid for a maximum period of 25 years after payment of renewal fees.
INDICATION OF THE COSTS OF A DESIGN REGISTRATION
The costs of preparing and filing a single European design registration, valid in the 27 countries of the European Union, is €1,340. This includes the compulsory filing fees. For a design registration in other countries the costs very much depend on the countries you choose and the strategy we pursue to obtain that protection.
TRADEMARK PROTECTION
APPLICABLE TO
Among other things, words, logos, spelling, packaging, colour combinations, sounds or any combination thereof that are used to make the origin of products or services stand out from the competition.
OBTAINABLE BY
Registration for specific goods or services in the trademarks register.
REQUIREMENTS
A new registration may not result in consumers confusing it with earlier registered trademarks. Moreover a trademark needs to be distinctive as opposed to descriptive for the goods or services in question.
PERIOD OF PROTECTION
A trademark registration is valid for ten years and can be renewed for ten years at a time in return for payment.
INDICATION OF THE COSTS OF A TRADEMARK REGISTRATION
The costs of a trademark registration in the Benelux amount to € 800. The costs of a trademark registration in the 27 countries of the European Union amounts to € 1,750. The costs of trademark protection in other countries very much depends on the countries you choose and the strategy followed to obtain that protection.
Plant breeder's rights
APPLICABLE TO
Varieties belonging to the plant kingdom and mushrooms..
OBTAINABLE BY
Filing a plant breeder's rights application. When applying, we make the propagation material of the variety available to the Board for Plant Breeders' Rights, which stores it in a physical database.
REQUIREMENTS
The application must comply with novelty, distinctness from all generally known varieties, uniformity and stability. Novelty and distinctness relate to the type of crop, whereas uniformity and stability relate more to the quality of the new variety.
PERIOD OF PROTECTION
The plant breeder's rights for a variety are valid for a period of 25 or 30 years, depending on the type of variety
INDICATION OF THE COSTS OF PLANT BREEDER'S RIGHTS
Depending on the type of crop (vegetables, agriculture, ornamental horticulture, fruit, forestry).
Chip rights
APPLICABLE TO
The specific design or topography of (computer) chips, semiconductors, semiconductor products or micro-processes.
OBTAINABLE BY
Filing an application, accompanied by a drawing of the topography and a copy of the semiconductor.
REQUIREMENTS
The design must not be commonplace in the semiconductor industry, so it must relate to a new semiconductor design. It must be the product of the creator's (own) intellectual effort.
PERIOD OF PROTECTION
Chip rights are valid for a period of ten or fifteen years, depending on when the design was first placed on sale and whether it was utilised or an application was filed.
INDICATION OF THE COSTS OF CHIP RIGHTS
A chip rights application is subject to a one-off official fee of € 79. This does not include the assistance of an advisor, such as a patent attorney.
Unregistered rights
In addition to protection by means of a registration, you can, under certain circumstances, also claim certain unregistered rights, such as copyright, trade name rights and database rights.
Copyright
APPLICABLE TO
Literary works, science, software programming code, the design of industrial products, design products or art.
OBTAINABLE BY
Creating the work. The writing of a text or creation of a product automatically carries with it a copyright.
REQUIREMENTS
It must be possible to distinguish the creator's input in the product. It is about the author's creative input.
PERIOD OF PROTECTION
In most countries this is up to 70 years after the author's death. If the copyright belongs to a legal entity, the work is protected for a period of 50 years after it was published.
INDICATION OF THE COST OF COPYRIGHT PROTECTION
Apart from the creation of the work, no additional steps are required to obtain the copyright on it. In order to have evidence to substantiate a future claim to a copyright, it is possible to file a so-called i-DEPOT. This costs around € 100.
Trade name protection
VAN TOEPASSING OP
Company names.
OBTAINABLE BY
Using your trade name. The protection extends to the territory in which your trade name is known. This could be locally, for example in a specific village or a certain region, but also throughout the Netherlands. In many cases it is recommended that you protect your trade name as a trademark. Trademark protection immediately extends to the Benelux or the EU, while trade name protection often only extends gradually. In the meantime others are free to use your trade name or to register it in territories in which you do not yet operate. This can stand in the way of you expanding your business.
REQUIREMENTS
A trade name may not be in conflict with earlier trade names or trademarks. In addition a trade name may not be misleading.
PERIOD OF PROTECTION
Trade name rights are valid as long as a company continues to use the name.
INDICATION OF THE COSTS OF TRADE NAME PROTECTION
None unless you opt to register your trade name as a trademark.
Database rights
APPLICABLE TO
Data or information contained in a database. This right gives limited protection to the creator of generic databases, where that creator cannot invoke copyright.
The structure of the database is protected by copyright.
OBTAINABLE BY
The creation of a database, which may or may not be electronic.
REQUIREMENTS
The data must be arranged systematically and independently retrievable. In addition, a substantial investment must have been made in the development of the database.
PERIOD OF PROTECTION
Up to fifteen years after the creation of the database. When significant quantitative and qualitative changes are made, the fifteen years starts again.
INDICATION OF THE COSTS OF DATABASE RIGHTS
None.
Costs of establishing intellectual property rights
Some forms of intellectual property right are granted automatically. You do not have to do anything or pay anything for these. Copyright, trade name rights and database rights are all examples of this.
The following costs are involved in establishing a trademark, design, patent or plant breeder's right:
Costs of establishing a trademark
From € 600.
Costs of establishing a design right
Single European design registration in 27 countries, € 1,370 incl. first 5 years of protection, incl. consultancy fees of a design attorney. Registration of extra models cost € 670 each.
For more information on design rights, please visit this page.
Costs of establishing a Dutch patent:
| Costs of applying for a Dutch patent. | ||
|---|---|---|
| Conducting a search | € 1,750 to € 2,500 |
|
| Costs of engaging a Patent Attorney | € 6,500 to € 8,500 |
|
| Filing fees | € 750 or € 1,500 |
|
| Advice novelty report | € 1,000 to € 1,500 | |
| Renewal fees first 5 years |
€ 140,- |
Costs go up each year |
For more information, please visit this page.
Costs of establishing plant breeder's rights
This depends on the type of crop (vegetables, agriculture, ornamental horticulture, fruit, forestry).
Transferring intellectual property
Intellectual property rights are transferable. If you want to transfer your rights, the arrangements must be laid down in a deed by the two parties involved. It is usually optional to record the transfer in the relevant registers, such as the EUIPO and the EPO register. It is advisable to also inform third parties of such transfer.
Your patent, design or trademark attorney can arrange the transfer for you.
Checking intellectual property rights
If you want to put a product or service on the market, it is important to know whether it is subject to intellectual property rights. This prevents you from committing an infringement. How can you check this?
- Patent right check
In the patent database Espacenet or Google Patents, you can check to see if any patent rights have been established on a product or process. - Check for design rights and trademarks
In the EUIPO database, you can search for designs and trademarks that have already been registered in the EU. - Trade name check
In the Commercial Register of the Chamber of Commerce you can search for existing trade names in a certain geographical area. - Plant Breeders' Rights check
In the Dutch Varieties Register you can search by name, breed or date of establishment of plant breeders' rights.
It goes without saying that your patent attorney can help you with this, for example with a Freedom to Operate search. This makes it clear if others have any patents that could present a problem for you.
Intellectual property lawyers
Our patent and design attorneys are often referred to as intellectual property lawyers. This is hardly surprising, because a patent and design attorney also deals with the legal aspects of protecting intellectual property. Patent and design attorneys also conduct legal proceedings when it comes to disputes in the field of intellectual property rights. However, in our profession we use the term 'attorney' instead of 'lawyer'.
Benelux Office for Intellectual Property
The Benelux Office for Intellectual Property - also known as BOIP - is the official body that registers trademarks and designs and records ideas via i-DEPOT in the Benelux. When we talk about registering trademarks, we refer to the name of your company or product, or the relevant logo. Design rights can be established on the design of your product. If you would like to know more about establishing design rights, please visit this page.
In addition to the BOIP, there is the EUIPO, the European Union Intellectual Property Office. This is where trademarks and designs are established for the whole of the EU. It is not possible to establish these rights for the Netherlands only.
