The Netherlands: Cost awards in Dutch enforcement cases

From now on, a defendant in preliminary Dutch IP enforcement cases can also obtain a cost order against the claimant if the case is withdrawn by the claimant before the oral hearing, for example after a defendant's written rebuttal. For (full) proceedings on the merits, this has always been clearly the case, but the procedural framework is not exactly the same for the famously quick preliminary proceedings (kort geding).

Such kort geding proceedings are a very attractive procedure for conducting IP infringement cases quickly and before a single judge. For example, the Dutch pemetrexed case – about a blockbuster medicine – recently went from writ to full written decision within one month and two days (Eli Lilly v Sandoz, ECLI:NL:RBDHA:2017:1907) and the stipulated costs were €50,000, to be awarded to the winning party. The issue of cost awards is pressing, even in the event of a relatively fast withdrawal, because preparing a defence quickly is critical in these kort geding infringement procedures.

The Supreme Court has decided that the defendant can reopen the proceedings by requesting a cost award (Wieland v GIA Systems, ECLI:NL:HR:2016:1087). The decision of the Supreme Court was given in a trade mark case. The District Court of The Hague has now applied the new rules to a patents case as well, in its decision of of March 9 2017 (Putkast v CBM, ECLI:NL:RBDHA:2017:22850). In that case, the writ was issued on October 23, and the case was withdrawn on November 10. Nevertheless, costs were awarded to the amount of about €11,000.

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