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24 January 2011
Intellectual property rights

Constitutional changes in the Kingdom of the Netherlands; practical consequences for trade mark owners and businesses

Until October 10, 2010 the Kingdom of the Netherlands consisted of three separate countries: The Netherlands in Europe, and in the Carribean The Netherlands Antilles, as well as Aruba. On October 10, the Kingdom was reorganized and the Netherlands Antilles ceased to exist. As a result the Kingdom is now formed by four constituent countries: The Netherlands, Aruba, Curacao, St. Maarten.

The islands of Bonaire, St. Eustatius and Saba, which used to be part of the Netherlands Antilles are now special municipalities (officially “public bodies”) of the Netherlands.  The islands are often referred to as the BES islands. The more official name is the Caribbean Netherlands.

It is intended to implement as much Dutch legislation as possible, but sofar separate legislation for the BES islands still applies.

Benelux and European trade marks (CTMs) do not cover the BES islands. The Benelux Office for Intellectual Property (BOIP) is appointed by the Dutch government as the trade mark office for the BES islands. Existing trade mark registrations of the former Netherlands Antilles will during a transitional period until October 10, 2011 also cover the BES islands. Before that date it will be required to file a confirmative application.

However, even your business never gives you the pleasure of doing business on the BES islands, the constitutional changes may still impact your business in Europe.

Imagine you are selling LCD televisions in your European webshop and you have a localized Dutch webshop. Imagine you are offering free home delivery in the Netherlands. This may imply that you also have to deliver the television to Bonaire if a consumer from the island orders this television. Also a sweepstake offering a romantic weekend in Paris with free travel from any place in The Netherlands to Paris may become very costly for the organizer.

But also in B2B agreements this expansion of The Netherlands may have serious consequences and it is recommended to make an assessment whether contracts and general terms & conditions need to be changed. If you want to define the Netherlands without the BES islands, you can include in your documents “The Netherlands (with the exception of the Carribean Netherlands)”.

More information

Willem Leppink

M +31 6 2021 0504
E w.leppink@ploum.nl

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