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USLAW
SPRING 2025 USLAW MAGAZINE
Development, ownershipand exploitationofIPin theNetherlands andthebroader European Union Joost Becker, Mats Emonts, Christel Jeunink and Dennis Nijssen
INTRODUCTION Technological advancement and globalization have dramatically changed the world economy. These developments continue to have a material impact on value chains, also substantially increasing the relevance and contribution of intangible assets like technology, know-how and brand names to the commercial companies' overall market value. Although this has clearly contributed to economic growth, it also poses significant legal and tax challenges. Rules and regulations governing the development, ownership and exploitation of Intellectual Property (IP) make up a complex and very dynamic area of law. In this article, we will highlight legal and tax aspects of the development, ownership and exploitation of IP in the Netherlands and the broader EU. LEGAL ASPECTS Protection of IP In the EU, technology and know-how – often the result of research and development (R&D) activities – are mainly protected by patent rights and trade secrets. The importance of both is also acknowledged in the TRIPS Agreement (Trade Related Aspects of Intellectual Property Rights). Patents can be registered to protect new and innovative technologies and provide patent holders with a temporary monopoly to recoup their investments. In prin-
ciple, after the protection period of 20 years, the patented technology enters the public domain. Trade secrets, by their nature, will remain secret and allow businesses to apply their confidential information and know-how on an exclusive basis for themselves. The EU has adopted the Directive on the Protection of Trade Secrets, which has been implemented into legislation by EU member states. In doing so, owners of trade secrets are granted extensive protection for a long(er) period of time, provided that the trade secrets are actually secret, have commercial value and sufficient measures are in place to maintain the secrecy of the trade secrets. Other important IP rights relevant for the protection of products and services are trademark rights (for brand names) and copyright (for works such as software and product design). These areas of IP law continue to be a subject of EU harmonization, with effects in all member states, including the Netherlands. Ownership and Transfer of IP IP rights are generally territorial in nature, meaning they only apply within the jurisdiction where they are protected. For example, a European patent, trademark or copyright provides protection within the EU (or specific European countries if the rights are granted through national
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systems). When exploiting IP rights across borders (e.g., from the U.S. to Europe or vice versa), businesses must ensure that their rights are safeguarded within the respective territories. A European Patent or EU Trademark can be registered through the European Patent Office (EPO) or the European Union Intellectual Property Office (EUIPO), respectively. It is important that the registration processes are aligned with the business’s global strategy, as obtaining protection in multiple regions requires time, investments and resources. Transfer of IP rights is subject to different legal requirements as outlined in the law that governs the transfer agreement (which can be agreed upon by the transferring parties). Based on the Dutch Civil Code (DCC), for instance, the transfer of IP rights must meet three conditions: a valid title, a transfer action, and the transferor's authority to dispose of the rights. 1. Valid Title: The transfer can occur in exchange for payment, for instance, through a sale. 2. Transfer Action: The transfer must be done in writing, typically through a contract. A notarial deed is not required. Although registration of the transfer is not a requirement for the transfer as such, the registration in the relevant IP