You have invested considerable time, energy and expense in developing and protecting an invention, design, trademark or logo. At some point you discover that a third party enters the market with a method, product, design or trademark that appears to infringe on your intellectual property (IP) rights. The question is what action you can take.
Assessment
The first step is an assessment of the other party’s activities. After all, competing products, designs or trademarks do not always infringe your IP rights. Obtaining sufficient evidence of infringement is essential. If necessary, evidence can be seized or the court can be requested to order a preliminary witness examination.
Summons
If the assessment shows that your IP rights have been infringed and there is sufficient evidence of infringement, a common next step is to send a summons letter. This letter notifies the other party of the infringement. The other party may be summoned to cease the infringement immediately. Depending on the circumstances of the case, additional demands may be made. In certain cases, it may be more effective to have a stock of infringing goods seized rather than sending a summons letter.
Summary proceedings
If the infringing party does not comply with the summons letter, you can initiate proceedings in court. In summary proceedings, the interim relief judge is asked for a quick and provisional decision, under the condition of urgency. For example, the judge can impose an injunction prohibiting the infringing products from being placed on the market.
Summary proceedings are started with a subpoena. After that, the hearing takes place as soon as possible. The defendant is then given the opportunity to respond to the plaintiff’s arguments and can file a counterclaim if desired. After the hearing, the judgment is usually rendered within a few days or weeks, depending on the urgency of the case.
Proceedings on the merits
In proceedings on the merits, the court may issue a final judgment. These proceedings also begin with a subpoena. The defendant is given the opportunity to present a defense. Often the parties are given the opportunity to further explain their positions during an oral hearing.
An advantage over summary proceedings is that during proceedings on the merits, it is possible to claim damages in addition to an injunction. Moreover, the parties will have the opportunity to explain their claims in detail and provide extensive evidence. Also, the judge will issue a final judgment instead of a preliminary ruling.
A disadvantage of proceedings on the merits is that longer deadlines are given for, for example, the filing of pleadings and the delivery of a judgment. As a result, proceedings on the merits take longer. Finally, it should be noted that in the Netherlands the possibility of accelerated proceedings on the merits exists especially for patent cases. However, accelerated proceedings on the merits will still take considerably longer than summary proceedings.
