Netherlands: Protection of designs with technical features

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Netherlands: Protection of designs with technical features

In The Netherlands there are two theories concerning the scope of protection of designs with technical features, more specifically the scope of protection of their technical elements. The first one is the so-called apparaat gerichteleer (apparatus-focused doctrine). According to this theory, every design element of a product which is technical or functional should be excluded from design protection. The other one is the so-called resultaat gerichteleer (result-focused doctrine). This theory holds that design protection of technical or functional elements of a product is possible as long as there are alternative technical or functional elements at hand to achieve the same result.

It strongly depends on the product at hand, or even the court determining the scope of protection of a design, which doctrine is followed. On March 29 2016, the Court of The Hague took an appeal decision, on the basis of a possible new doctrine.

In this case a producer of cable clamps, and owner of a registered EU design for these clamps, objected to a design used by a competitor for similar cable clamps.

registered.jpg
objected.jpg

registered design

objected design

In first instance the court of The Hague decided that the design used by the defendant did not infringe the design rights of the applicant, mainly because there is a serious chance that the design registration at hand will be declared invalid for lack of individual character.

Just as in first instance the technical elements of the design were comprehensively discussed. With regard to these elements the appeal court stated that an element of a design which is defined by technical function is only exclusively defined by technical function:

1. if there is only one or a limited number of alternative technical solutions by which the same technical effect can be achieved, or

2. if there is only one or a limited number of real alternatives for the design element by which the same technical solution can be achieved. Such an alternative is not real if it concerns:

a. an addition of an element which is (from a technical point of view) meaningless, such as a decoration or thickening of the technical element; or

b. a deviation of the design of the technical element which is so marginal that it does not have its own individual character compared to the design at hand.

In this case the technical features of the registered design were considered to be exclusively defined by their technical function. This means that the registered design was not infringed. Although this possible new standard did not help the appellant in this case, it could be helpful in other cases in which a (registered) design includes one or more technical/functional features.

Witteman

Maaike Witteman


V.O.Johan de Wittlaan 72517 JR The HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67 99info@vo.euwww.vo.eu

more from across site and SHARED ros bottom lb

More from across our site

With rankings for Western Europe set to be published on June 25, we sat down with our research lead to find out what practitioners and law firms can expect
Peter O’Sullivan, a professional services executive, says he is looking forward to helping Pearce IP become the leading life sciences firm in Australia and New Zealand
Matteo Di Lernia, advocate at LCA Studio Legale, unpicks the CJEU’s ruling in M.M. Ristorazione v Villa Ramazzini, including its impact on litigation strategies
Leaders at IP boutique say the decision to pursue sponsorless partnership with the specialised investment arm of a private equity firm comes at a time of ‘profound transformation’ in the profession
Patrick Zhang, formerly of Atlassian and TiVo, will become Via’s vice president of licensing and commercial strategy, tasked with helping expand client partnerships and licensing deals
IP services firm says new platform will cut patent portfolio analysis from months to minutes and optimise monetisation efforts
New role for the High Court judge will leave a gap for an IP specialist judge at the first instance
Laura Achával, founder of Achával IP in Argentina, shares how an evolving vision led her to launch her own practice
Monetisation is standing at the forefront of patent development, and one firm says AI is increasingly being deployed
Data centres are being built across the US, prompting patent disputes, but Texas’s thriving tech industry and patent-ready courts make the state particularly ‘ripe’ for litigation
Gift this article