Registering a trademark in the Netherlands
Oct 1, 2020
Registering a trademark can be a very good idea. To many starting entrepreneurs, a trademark sounds like something reserved only to the big boys. It is not. In this article we will explain how this legal tool can be used to your advantage.
Remind me: what is a trademark again?
In essence, your trademark is the name, brand and reputation of your company all condensed into one exclusive right. A trademark can be a word, a logo or a combination of those two. A trademark is not the same as your company name (see below) and can be separated from it. You know the famous examples of the big brands like Coca Cola, Nike, Apple. Their trademarks are the names and logos you know so well. These embody the values they want to represent and the reputation they have built up. They are very valuable and therefore also feature on a company’s balance sheet. For example, the Coca Cola brand was valued at USD 84 billion in 2020.
That sounds like light years away for me. Why would I need a trademark now?
A trademark has a lot of advantages straight from the get-go. Let's sum them up.
A trademark usually embodies what you want to be as a company. It is what you want to stand for, usually in combination with the message of “quality” or “good moral standing”. For example: colourful, high-quality scooters with a dose of naughtiness. Voilá, Vespa. If you have developed a distinct name and identity and your products or services can easily be copied, sooner or later people will start copying you. A trademark registration will make it very easy to act against them.
Are you starting up your business and want to look serious towards your investors? They will want to know you take yourself seriously and that you have protected yourself. For them it’s a no-brainer, considering the low cost of investment and the benefits it offers.
Are you looking at expanding your business? Then it’s a good idea to start separating your assets from your risks. Most companies nowadays opt for a holding structure, where there is an extra holding company above the business-operating company. This holding company functions as a holder of assets, like the name suggests. These assets can be real estate, domain names, machinery and of course also your trademark. You let the operating company use the trademark from the holding company, via a license agreement. Welcome to the big boys.
Speaking of license agreements, why not let third parties operate under your brand? This is how most companies choose to expand internationally, without getting distracted too much by their international wanderlust. They hire a local company to work under their name, obviously under strict (franchise) conditions, and let them pay a licensing fee for it. This can be very beneficial for all parties involved. If you didn’t register your trademark, chances are those local companies are already working under your name. But not paying you.
Do you want to set up a webshop and become a reseller on one of the big online platforms (bol.com, coolblue.nl or amazon.com) they will ask you for a trademark registration of your online webshop.
Last but not least : you get to use the famous ® in your brand. That stands for “registered” trademark. Nice.
Are there any other “rights” I should be aware of?
First off, there’s your company’s name. You have a right to that name under the Dutch Chamber of Commerce act (Handelsregisterwet), which protects you from others using that exact same name. Of course there will occur overlaps in names sometimes. For example, a lot of people are called Janssen in the Netherlands, so a lot of companies carry that name. That’s not a problem. Only when your company has a more specific name that overlaps with an existing company’s name and you two offer the same products or services, you could be in trouble. But when you start your business, the incorporating notary will notify you when this occurs.
Then there’s copyright (in Dutch: “Auteursrecht”) . A copyright is an exclusive right to use your own creation. A creation means that it needs to be unique and coming from your own hands and mind. For example, I hold the copyright to the text of this article. It is unique (not that unique, but unique enough) and came from my own hands and mind. So if anyone copies this text and uses it for their own advantage, I will be coming to get them :). Seriously, I can sue them for unauthorized use and demand compensation. A copyright comes into existence automatically. You don’t need to register it anywhere. That’s very nice and easy, but it can also cause troubles. If you haven’t registered it anywhere, that means it’s difficult to prove it’s yours. You can use a papertrail, e-mail and online history or witnesses to prove that.
Then there are patents (in Dutch : “Octrooien”). In the case of Coca Cola, their patents are the exclusive legal rights to the technical or chemical characteristics of their products (soft drinks), their packaging (cans and bottles), or anything else they have created. That means you cannot copy or use those for your own benefit, even when you manage to find out the secret composition on your own.
Can I register any trademark I want to?
No you cannot, of course. Here are some basic rules for registering a trademark.
The trademark needs to be distinctive. This means it cannot exist already, or have strong similarities with an existing trademark.
The trademark needs to be non-descriptive. This means you cannot start a fruit brand under the name “Apple”. But you can start a computer brand under that name. At least, if it didn’t exist already. Avoid generic words and descriptions of the goods or services you are offering.
Trademarks need to be connected to one or more categories of goods or services, so called “Nice classification” after the (confusingly also very nice) place on the French Riviera. You can read a bit more about that here.
There is always room for interpretation. Are you still uncertain whether your trademark ambitions are viable? Just ask us.
Are there any different types of trademark registration I need to be aware of?
Yes there are. For most Dutch SME companies, a Benelux trademark registration will suffice. This means the trademark will be registered at the Benelux trademark bureau, and will henceforth offer protection throughout the Netherlands, Belgium and Luxembourg. You receive substantial protection outside the Benelux as well. For example, your Benelux trademark can be used to oppose similar trademark registrations started anywhere in the EU. If a conflicting trademark holder from outside the EU is offering his goods or services in the Benelux region, you can take action against them as well.
If you really want to, you can register an EU trademark or a worldwide trademark. Mind you that in these cases as well, a Benelux trademark is always taken as a starting point and then expanded into EU or worldwide trademarks. Your Benelux registration is therefore never made superfluous.
What can I expect in terms of costs and timeframe?
You can register your Benelux Trademark with us for € 499 in one Nice classification. Sometimes one or two additional classes may be necessary. Each additional classification costs € 99 extra. These costs include the registration costs at the Benelux Bureau and a research into the viability of your trademark. Once started, a registration can be performed within days. After the registration, a period of 2 months will start during which any older trademark holders can oppose your registration for being too similar. After this period, your registration will become definite and you will receive a certificate. After the definitive registration, the Benelux trademark will last for 10 years! After this period it needs to be renewed.
If you want an EU or worldwide registration, or are looking into registering a patent, let us know. We will get you sorted.
Recap
A trademark registration is basically a good idea for any serious business out there. The only impediment to registration is having a name or logo that does not meet the requirements. Do you want to get started with your trademark registration?
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