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    Effectively securing evidence before litigation IP

    If an organization suspects its intellectual property rights are being infringed, or knows that someone holds evidence of an abuse of know how or trade secrets, they may seek a prejudgement attachment of evidence of this infringement or abuse. The attachment can serve as a simple, fast, inexpensive and effective solution to secure evidence. This is an overview of the possibilities provided by Dutch law.

    What is a prejudgement attachment of evidence?

    At the request of a rights owner or an organization holding an interest to secure evidence Dutch courts may grant permission for a prejudgement attachment on materials and evidence that are described in the request. The attachment freezes the (alleged) infringer's assets until a final, binding decision is obtained regarding the underlying claim. 

    What can be part of the prejudgement attachment?

    Nearly anything that can serve as evidence can be subject of a prejudgement attachment, including (i) digital or paper documents and other materials that in some way contribute to prove infringement or abuse of right, (ii) counterfeit or infringing products; (iii) materials used to produce counterfeit; (iv) assets held by a third party and owned by the alleged infringer; and (v) any property alleged to belong to the rights owner, regardless whether it is Dutch or foreign.

    When and how can a prejudgement attachment be obtained?

    The rights owner can submit his request for the prejudgement attachment independently of proceeding on the merits of his claim. For a Dutch court to have jurisdiction, the asset must be located in the Netherlands. Dutch courts may have jurisdiction regarding foreign entities and they may apply foreign law.

    The court will decide on the request within a few days, in principle without hearing the claimant or the defendant ("ex parte"). In certain cases, however, the court may wish to hear the parties before deciding.

    If the court decides to grant permission to carry out the requested attachment, the rights owner has a statutory obligation to initiate the proceeding against the (alleged) infringer in a relatively short period determined in the court's order. This proceeding aims to have a court decide whether or not the attachment was rightful and whether the evidence can in full or in part be handed over to the rights owner.

    If the rights owner fails to fulfil his obligation within the set time period, the attachment lapses automatically, and the rights owner can be held liable for the damages suffered by the (alleged) infringer due to the attachment. 

    The advantages of the prejudgement attachment

    The prejudgement attachment is almost immediately granted without in-depth review by the court. It remains in force until a decision is taken on the rightfulness of the attachment or until the proceeding on the merits ends with a final and binding decision. Hence, prejudgement attachment can serve as an effective, fast, relatively simple and inexpensive method to secure evidence. 

    The disadvantages and risks of the prejudgement attachment

    Permission to make an attachment is granted without in-depth court review of the underlying claim. The flipside of this system is that, under Dutch law, a rights owner is fully liable for any damages which the alleged infringer under the attachment suffers as a result of the attachment if the underlying claim is rejected.  In cases concerning intellectual property rights, the rights owner also runs a risk that it has to pay a significant part of the lawyers' costs of the alleged infringer.

    More information

    For more information about this subject, please contact Kriek Wille or visit our Intellectual Property page.