Netherlands: Protection of designs with technical features

Managing IP is part of Legal Benchmarking Limited, 4 Bouverie Street, London, EC4Y 8AX

Copyright © Legal Benchmarking Limited and its affiliated companies 2024

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Netherlands: Protection of designs with technical features

In The Netherlands there are two theories concerning the scope of protection of designs with technical features, more specifically the scope of protection of their technical elements. The first one is the so-called apparaat gerichteleer (apparatus-focused doctrine). According to this theory, every design element of a product which is technical or functional should be excluded from design protection. The other one is the so-called resultaat gerichteleer (result-focused doctrine). This theory holds that design protection of technical or functional elements of a product is possible as long as there are alternative technical or functional elements at hand to achieve the same result.

It strongly depends on the product at hand, or even the court determining the scope of protection of a design, which doctrine is followed. On March 29 2016, the Court of The Hague took an appeal decision, on the basis of a possible new doctrine.

In this case a producer of cable clamps, and owner of a registered EU design for these clamps, objected to a design used by a competitor for similar cable clamps.

registered.jpg
objected.jpg

registered design

objected design

In first instance the court of The Hague decided that the design used by the defendant did not infringe the design rights of the applicant, mainly because there is a serious chance that the design registration at hand will be declared invalid for lack of individual character.

Just as in first instance the technical elements of the design were comprehensively discussed. With regard to these elements the appeal court stated that an element of a design which is defined by technical function is only exclusively defined by technical function:

1. if there is only one or a limited number of alternative technical solutions by which the same technical effect can be achieved, or

2. if there is only one or a limited number of real alternatives for the design element by which the same technical solution can be achieved. Such an alternative is not real if it concerns:

a. an addition of an element which is (from a technical point of view) meaningless, such as a decoration or thickening of the technical element; or

b. a deviation of the design of the technical element which is so marginal that it does not have its own individual character compared to the design at hand.

In this case the technical features of the registered design were considered to be exclusively defined by their technical function. This means that the registered design was not infringed. Although this possible new standard did not help the appellant in this case, it could be helpful in other cases in which a (registered) design includes one or more technical/functional features.

Witteman

Maaike Witteman


V.O.Johan de Wittlaan 72517 JR The HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67 99info@vo.euwww.vo.eu

more from across site and ros bottom lb

More from across our site

A UK government consultation on AI and copyright, a patent blow for Lenovo and a trademark row over cider were among the big talking points this week
Our most popular stories of the year included a rundown of the 50 most influential people in IP, our in-house ones to watch, and UPC news
Awards
It is time to submit nominations for the sixth annual Life Sciences Awards EMEA
Keejeong Kim, who returned to Yulchon after a four-year gap, said he was intrigued by the opportunity to work on neighbouring areas of law to IP
The IP consulting firm hopes to expand its services and outreach with the support of investors VSS Capital Partners and Century Equity Partners
This update includes a ruling from the Court of Appeal, a judgment of the Paris Local Division, news of upcoming hearings, and predictions for 2025
US counsel review the key copyright and trademark trends of 2024, including generative AI disputes and SCOTUS cases
If 2024 is anything to go by, the next 12 months could see more IP firms seek investment opportunities while IP lawyers are increasingly likely to work alongside other functions
Practitioners reflect on the impact of USPTO guidance, as well as PTAB and litigation trends
We discuss Managing IP’s 50 most influential people in IP list and look back on the biggest talking points in the last month
Gift this article