When is it illegal to use a logo without permission

To use a logo without permission is unlawful in the Netherlands when the logo is protected as a trade mark and your use falls within one of the three grounds set out in article 2.20 of the Benelux Convention on Intellectual Property and article 9 of the EU Trade Mark Regulation: an identical sign on identical goods or services, a similar sign creating a likelihood of confusion, or use of a mark with a reputation that takes unfair advantage of it or damages it. Outside those grounds, referential use of a logo is permitted, provided it is in accordance with honest commercial practices.

What actually protects a logo

A logo can be covered by more than one right at the same time, and which one you are dealing with changes the answer to almost every practical question.Trade mark law is the main one. In the Benelux, trade mark rights arise only from registration; there is no such thing as an unregistered Benelux trade mark. Registration is done either with the Benelux Office for Intellectual Property (BOIP) for the Netherlands, Belgium and Luxembourg, or with the European Union Intellectual Property Office (EUIPO) for an EU trade mark covering all member states. A registration lasts ten years and can be renewed indefinitely, but it can be revoked if the mark has not been genuinely used for an uninterrupted period of five years. Checking the register before you assume anything is the first step, and both registers are public and free to search.Copyright is the second. Under the Dutch Copyright Act (Auteurswet) a logo is protected automatically, without any registration, if it is an original work bearing the personal stamp of its maker. A simple word in a standard typeface will not qualify; a distinctive graphic design usually will. Copyright lasts for seventy years after the death of the maker, which means an old logo can still be protected by copyright long after a trade mark registration has lapsed.Trade name law is the third and it is regularly forgotten. The Trade Names Act (Handelsnaamwet) protects the name under which a business is actually operated, and it protects it without registration. Article 5 of that Act prohibits using a trade name that is so similar to an existing one that confusion is likely, given the nature and the location of the two businesses.Finally, where none of those rights applies, the general tort provision in article 6:162 of the Civil Code can still bite. Slavish imitation of a product or a get-up that causes avoidable confusion has been held unlawful, and misleading or unlawful comparative advertising is separately regulated in articles 6:194 and 6:194a of the Civil Code.

The three grounds of trade mark infringement

Shelves of branded products in a supermarket, showing logos as indicators of origin

The grounds are cumulative alternatives: the owner needs only one of them. All three require use in the course of trade, which is why a private drawing in a notebook is not an infringement and a printed T-shirt offered for sale is.

Identical sign, identical goods

Where the sign is identical to the registered mark and is used for goods or services identical to those for which the mark is registered, infringement is established without any need to prove confusion. This is the counterfeiting case: putting a registered logo on your own handbags and selling them. The protection here is absolute because the mark cannot perform its essential function of indicating origin at all.

Similar sign, likelihood of confusion

This is the ground that decides most real disputes. Where the sign is identical or similar and the goods or services are identical or similar, infringement requires a likelihood of confusion on the part of the relevant public, including the likelihood of association.The assessment is global. Courts compare the signs visually, aurally and conceptually, taking the overall impression rather than dissecting the elements, and weigh that against the similarity of the goods and the distinctiveness of the earlier mark. Interdependence matters: a high degree of similarity between the signs can compensate for a lower degree of similarity between the goods. The reference point is the average consumer of the goods concerned, reasonably well informed and reasonably observant, who rarely has the chance to compare the marks side by side and relies on an imperfect recollection.Intent is not a requirement. You can infringe a mark you had never heard of. Bad faith, where it exists, tends to influence the outcome on damages and costs rather than on liability.

Marks with a reputation

The third ground protects marks that have acquired a reputation in the Benelux or in the European Union. Here the owner does not have to show confusion at all. It is enough that the use of a similar sign, without due cause, takes unfair advantage of the distinctive character or repute of the mark, or is detrimental to it.Two forms of detriment are recognised. The first is harm to the distinctive character of the mark, where its capacity to identify a single source is weakened by use on unrelated goods. The second is harm to its repute, where the mark is associated with goods or a context that damage its image. Free-riding is a third variant: deriving commercial advantage from the pull of a famous mark without contributing anything. Importantly, this protection is not limited to dissimilar goods; it applies whether or not the goods are similar.

When you may use another company’s logo

An independent garage sign displaying the marques of the cars it services

There is no doctrine of fair use in Dutch or European trade mark law. That is an American concept and importing it produces bad advice. What European law has instead is a set of limitations on the effects of a trade mark, in article 2.23 of the Benelux Convention and article 14 of the EU Trade Mark Regulation, plus the exhaustion of rights and the rules on comparative advertising.The limitation that matters most in practice is referential use. A trade mark owner cannot prohibit a third party from using the mark to identify or refer to goods or services as those of the proprietor, in particular where that is necessary to indicate the intended purpose of a product or service, such as accessories or spare parts. This is what allows an independent garage to state which marques it services, a shop to say which brands it stocks, and a journalist to identify the company a report is about.Every one of these limitations is subject to the same condition: the use must be in accordance with honest practices in industrial and commercial matters. The Court of Justice has given that condition real content. The use must not suggest a commercial connection with the trade mark owner, must not take unfair advantage of the distinctive character or repute of the mark, must not discredit or denigrate it, and must not present the goods as an imitation. In practice this means keeping the reference proportionate: use the word mark rather than the figurative logo where the word will do, do not make the other party’s logo more prominent than your own branding, and do not use it in a way that looks like an official partner badge.Exhaustion is the second important limitation. Once genuine goods have been put on the market in the European Economic Area by the trade mark owner or with its consent, the owner can no longer rely on the mark to oppose their further commercialisation, and a reseller may use the mark to advertise the resale. The exception is where there are legitimate reasons to oppose it, in particular where the condition of the goods has been changed or where the advertising seriously damages the reputation of the mark.Comparative advertising is the third. Article 6:194a of the Civil Code permits a comparison that names or depicts a competitor, but only on strict cumulative conditions: it must not be misleading, it must compare goods meeting the same needs, it must compare objectively one or more material, relevant, verifiable and representative features, it must not discredit the competitor or its marks, and it must not present goods as imitations. A comparison that fails one condition fails altogether.Finally, parody and criticism. Trade mark law has no express parody exception, unlike copyright law, which does. What protects a parody is the requirement of use in the course of trade, the absence of a likelihood of confusion, and, for marks with a reputation, the concept of due cause read in the light of freedom of expression under article 10 of the European Convention on Human Rights. Genuine commentary on a brand is usually safe; a joke printed on merchandise for sale usually is not, because the commercial purpose reintroduces both the trade use and the free-riding.

Logos online: keywords, marketplaces and profiles

A search results page and an online marketplace listing shown on a laptop screen

Most disputes now start online, and the online rules are more nuanced than the confident advice circulating on the subject.Search advertising is the clearest example. Bidding on a competitor’s trade mark as a keyword is not automatically an infringement. The Court of Justice has held that the decisive question is whether the advertisement enables a reasonably well informed and reasonably observant internet user to tell whether the goods advertised originate from the trade mark owner, from an undertaking economically connected to it, or from a third party. An advertisement that names your own business clearly and does not suggest a link is generally permitted; one that is vague about who is advertising, or that reproduces the competitor’s logo in the ad, is not. Using the competitor’s logo in the advertisement or on the landing page is a different matter and is far harder to defend.On marketplaces and social platforms, the operator is in principle not liable for the listings of its users, but that protection depends on the operator not playing an active role and on it acting expeditiously once it has been notified. Since the Digital Services Act, platforms must operate a notice and action mechanism, which makes a properly substantiated notice the fastest and cheapest route for a brand owner and a real risk for a seller who thinks a listing will go unnoticed. Marketplaces that present listings in a way that suggests the goods are their own have been held liable in their own right.Two further online points recur. Using a logo as a profile picture or in a company account name can amount to trade mark use and can breach trade name law at the same time. And a domain name that incorporates a mark can be attacked through the ordinary courts or through the dispute resolution procedure for .nl domain names; the latter is faster and much cheaper, but it can only order transfer or cancellation of the domain, not damages.

What happens when the owner takes action

Enforcement of intellectual property rights in the Netherlands is fast, and it is expensive in a way that surprises people who assume the ordinary costs rules apply.It usually begins with a letter of formal demand, a sommatie, requiring the recipient to stop, to sign an undertaking to refrain (onthoudingsverklaring) reinforced by a contractual penalty, to disclose supplier and customer details and numbers sold, to recall goods, and to pay costs. Signing such an undertaking is a contract, and its penalty clause can be enforced without any further finding of infringement, so it should never be signed without reading it properly.If the demand is ignored, interim relief proceedings follow. A prohibitory injunction reinforced by a penalty payment can be obtained within weeks, and in urgent cases article 1019e of the Code of Civil Procedure allows an ex parte injunction, granted without hearing the other side at all. Evidence can be secured in advance by an evidentiary attachment under articles 1019b to 1019d of the Code, and goods can be seized. Where counterfeit goods cross the external border, customs can detain them under Regulation (EU) No 608/2013 on the basis of an application for action filed by the rights holder.The remedies on the merits go beyond an injunction. Under article 2.21 of the Benelux Convention the owner can claim compensation for damage suffered and, in addition or as an alternative, surrender of the profits made through the infringing use, with an account of those profits. Destruction or recall of infringing goods can be ordered, and the court can order publication of the judgment at the infringer’s expense.The costs rule is the one that changes the economics. In intellectual property proceedings article 1019h of the Code of Civil Procedure requires the unsuccessful party to pay the reasonable and proportionate legal costs actually incurred by the successful party, rather than the modest standard scale that applies in ordinary civil cases. Indicative maximum rates are applied by the courts depending on the complexity of the case. A losing defendant in a straightforward trade mark case therefore pays not only its own lawyer but a large part of the claimant’s, which is the single strongest reason to take a demand letter seriously on the day it arrives.Deliberate dealing in counterfeit goods is also a criminal offence under the Criminal Code, and the fiscal and customs authorities have their own powers. Prosecution is reserved for commercial-scale infringement, but it is not theoretical.

Using another logo without getting it wrong

Most disputes are avoidable, and the steps that avoid them are cheap.Search the registers before you adopt anything. The BOIP and EUIPO registers are free, and a search for similar marks in the relevant classes takes an hour. Where a design agency delivers a logo, make sure the contract transfers the copyright in writing, because under Dutch law copyright does not pass to the client automatically: an assignment must be in writing and signed, and without one you may have a licence at best.Ask for permission where you need it, and get it in writing. A customer logo wall, a partner badge or a press quote next to a logo all suggest a relationship, and most companies publish brand guidelines setting out what they allow. Permission granted informally by a contact who has since left the company is worth very little.Keep referential use referential. Name the brand rather than reproducing its logo where the name will do the job, keep your own branding dominant, avoid any wording that suggests approval or an official status, and never modify a logo you are entitled to display.

Portfolios, CVs and job advertisements

A question that reaches us regularly concerns former clients and employers. A freelancer who displays the logos of past clients in a portfolio, or an agency that lists the brands it has worked for, is using those marks in the course of trade. Naming the client factually is normally defensible referential use. Reproducing the logo, presenting it as a partner badge, or arranging a wall of logos in a way that suggests an ongoing relationship goes further, and it is also frequently caught by a confidentiality clause in the contract that ended. Check that clause before the logo goes on the website; the contractual claim is usually easier for the other side to bring than the trade mark one.The same applies to recruitment material and to resellers who describe themselves as official. Words such as official, authorised, certified or approved make a factual claim about a relationship. If that relationship does not exist in the terms stated, the use is misleading under articles 6:194 and 6:194a of the Civil Code as well as being a trade mark issue, and both the brand owner and a competitor can act on it.And re-check periodically. Registrations lapse and change hands, businesses are acquired, and a permission given for one campaign does not carry over to the next. Our guide on håndheving av immaterielle rettigheter i Nederland sets out how these rights are asserted in practice, and our article on whether hashtags can be trade marks deals with the adjacent question of signs that are not logos at all.

If a claim lands on your desk

Do not reply the same day and do not sign anything. Establish first whether the mark relied on is actually registered, for which goods and services, and whether it is still in force; a claim based on a lapsed or vulnerable registration is a different negotiation. Check whether your use falls within referential use or exhaustion. Preserve the evidence of how you have used the sign and since when, because your own earlier use may itself give you rights, and a trade mark applied for in bad faith can be attacked.Then answer in writing and within the deadline set, even if only to say that the matter is being examined. Silence invites interim proceedings, and once an ex parte injunction has been granted the burden of undoing it is yours. Where the infringement is clear, a negotiated undertaking with a proportionate penalty and a sensible transition period is almost always cheaper than the alternative. Where it is not clear, say so precisely and early, because the costs rule in article 1019h works in both directions. Brand protection sits alongside the protection of confidential business information, dealt with in our guide to the Nederlandsk lov om beskyttelse av forretningshemmeligheter.

Ofte stilte spørsmål om bruk av logo

Kan jeg bruke en partners logo på nettstedet mitt?

Du kan, men bare med deres uttrykkelige tillatelse . Det er en vanlig feil at bedrifter antar at det å være kunde eller samarbeidspartner automatisk gir dem rett til å vise en partners logo på nettstedet sitt. Det er rett og slett ikke tilfelle.

Displaying a logo without consent can create a false impression of a formal endorsement or a deeper partnership than actually exists, which can easily mislead your audience. Purely referential use, such as naming the brands whose products you genuinely service or resell, is permitted under article 2.23 of the Benelux Convention on Intellectual Property and article 14 of the EU Trade Mark Regulation, provided the use is in accordance with honest commercial practices. A wall of client or partner logos goes beyond that, because it asserts a relationship rather than referring to a product. The proper way to go about it is to look for the company’s official brand guidelines or media kit. If you can’t find one, reach out to their marketing or legal team and get permission in writing before you even think about using their logo.

Hva er forskjellen mellom opphavsrett og varemerke for en logo?

While both can apply to a single logo, copyright and trademark law protect entirely different things. Getting this distinction right matters, because logo misuse is usually a trade mark issue. In the Benelux, trade mark rights arise only from registration with the BOIP or the EUIPO, whereas copyright arises automatically once the design is an original work. A logo can therefore be protected by copyright even though nobody ever registered it as a trade mark.

opphavsrett beskytter logoen som et originalt kunstnerisk verk. Tenk på det som å beskytte selve det kreative designet mot å bli kopiert eller reprodusert uten tillatelse.
varemerke beskytter logoens rolle i markedet. Dens jobb er å hindre andre bedrifter i å bruke et lignende merke på en måte som vil forvirre kunder.

Så når du spør: «Når er det ulovlig å bruke andres logo?», går du nesten alltid inn i varemerkelovens sfære . Det er det juridiske skjoldet som hindrer en konkurrent i å for eksempel bruke en lignende logo for å lure kunder til å tro at de kjøper fra det originale merket.

Den enkleste måten å huske det på er: opphavsrett beskytter kunsten, mens varemerke beskytter merkevarens identitet i handel. Begge deler er viktig, men brudd på varemerket er det vanligste juridiske problemet ved misbruk av logoer.

Er det trygt å bruke en logo fra et nedlagt selskap?

Dette er en svært risikabel antagelse og en overraskende vanlig fallgruve. Bare fordi et selskap har stengt dørene, betyr det ikke at dets immaterielle rettigheter plutselig er tilgjengelige for salg.

Når et selskap går konkurs eller blir oppkjøpt, blir eiendelene – inkludert verdifulle varemerker – ofte solgt til en annen bedrift. Denne nye eieren arver alle rettighetene til å håndheve varemerket. Bruk av logoen uten tillatelse kan føre til juridiske problemer med et selskap du aldri visste eksisterte.

A registration also lapses if it is not renewed after ten years, and it can be revoked if the mark has not been genuinely used for an uninterrupted period of five years, so the answer is sometimes yes. Copyright in the design may nevertheless still subsist, because it runs for seventy years after the death of the maker. Before you consider using a logo from a defunct business, you must do your homework. That means thoroughly researching the trademark’s current ownership status in official databases, like those managed by the Benelux Office for Intellectual Property (BOIP) eller EUs kontor for immaterielle rettigheter (EUIPUS).

Kan jeg bruke logoer til et skoleprosjekt eller fan art?

Dette området kan være et juridisk minefelt, der kontekst er alt. Å bruke en logo til en privatskoleoppgave som bare læreren din vil se, medfører ekstremt lav risiko for juridiske reaksjoner.

Spillet endrer seg imidlertid fullstendig i det øyeblikket penger eller bred distribusjon kommer inn i bildet. Å selge fan art med en beskyttet logo er nesten helt sikkert varemerkekrenkelse. Hvorfor? Fordi du driver en kommersiell aktivitet og tjener på anerkjennelsen og velviljen til et etablert merke.

Selv deling av ikke-kommersiell fan art på nett kan være problematisk. Hvis kreasjonen din utvanner merkets identitet eller antyder en offisiell forbindelse som ikke eksisterer, har varemerkeeieren grunnlag for å iverksette tiltak. For å være på den sikre siden er det alltid best å unngå å bruke offisielle logoer direkte i verk som skal selges eller deles bredt.

Law and More advises brand owners and businesses accused of infringement on trade mark, trade name and copyright matters in the Netherlands: register searches and filings, licence and co-branding agreements, demand letters and undertakings, interim relief and evidentiary attachment, oppositions and cancellation actions, and disputes over domain names and marketplace listings. If you want to use another party logo in your own communication, or you have been told to stop using one, contact us before you commit to a position.

Leter du etter noe annet? Vår indeks over nederlandske selskapsrettsveiledninger viser alt vi har skrevet om dette emnet, sortert etter emne.

Leter du etter noe annet? Vår indeks over nederlandske veiledninger om IT- og personvernlovgivning viser alt vi har skrevet om dette emnet, sortert etter emne.