In a recent decision of the Court of Appeals of The Hague, the Court ruled in general about the requirements of protection of foreign trade names in the Netherlands.
The underlying conflict was between two Dutch companies MAIN FREIGHT CARRIERS and MAINFREIGHT. The latter, defendant, pleaded in short that it had older trade name rights than applicant, stating that it took over commercial activities by an older New-Zealand company named Mainfreight Limited which name also enjoyed protection in the Netherlands.
In its ruling, the Court follows the Dutch doctrine and jurisprudence on the protection of foreign trade names in the Netherlands. In this respect, the Court of Appeals has ruled:
“The protection of a foreign trade name in the Netherlands does not require that the company is vested in the Netherlands and that the trade name is used in the Netherlands. It is sufficient that the name enjoys a reputation in the Netherlands with the relevant public worthy of protection (such reputation that likelihood of confusion is to be feared).”(office translation)
Since the defendant did not show that it actually acquired older trade name rights from Mainfreight Limited and since there was no reputation in the Netherlands of an older trade name it could invoke, before applicant started using its trade name in the Netherlands, the defendant lost the case.
The Court ruled that the name MAINFREIGHT is only slightly different from applicants name (it only differs with regard to the descriptive element ‘CARRIERS’) and that actual confusion took place between the trade names of parties. Therefore the request by applicant to change defendants name in such a way that it is no longer a combination of the words main and freight is awarded.
Defendant is also ordered to pay applicant € 10.691,16 and € 19.990,71 lawyers and costs for the procedure in first instance and for the appeals proceedings.
J. Becker
