Domain name disputes in the Netherlands: SIDN procedure or court?

A domain name dispute in the Netherlands is decided under trade mark law, trade name law or the general rule on unlawful acts (Article 6:162 of the Dutch Civil Code, BW); there is no separate domain name statute. For a .nl domain you can choose between the dispute resolution procedure of SIDN, which can only transfer the registration, and summary proceedings (kort geding) before the Dutch court, which can also order an injunction, penalty payments and costs.

The most important exception is a purely descriptive domain name: using it is in principle allowed, even if it causes confusion, unless there are serious additional circumstances. Many disputes are also not about squatting at all, but about an agency or former employee that registered the name in its own name.

How are .nl domain names registered?

The .nl domain is run by SIDN, which keeps the register but does not deal with the public directly; registrations go through registrars such as hosting providers and IT suppliers. SIDN registers names on a first come, first served basis and does not check whether a name matches someone else’s trade mark or trade name.

Only the party recorded as registrant can transfer the domain, move it to another registrar or restore it after cancellation. If your web agency put itself in that field, your company controls nothing.

Is a domain name your property?

Not in the classical sense: registration creates no intellectual property right, but a contractual position with SIDN under its terms and conditions for .nl registrants. Dutch courts nevertheless treat that position as a property right (vermogensrecht) under Article 3:6 BW, because it is transferable and has economic value.

The Court of Appeal of ‘s-Hertogenbosch allowed a seizure for delivery (leveringsbeslag) of a domain name on that basis (Gerechtshof ‘s-Hertogenbosch 17 January 2007, ECLI:NL:GHSHE:2007:AZ6522). Under Article 730 of the Code of Civil Procedure (Rv), anyone entitled to delivery of an asset can seize it to protect that right.

When does someone else’s domain name infringe your rights?

You need a legal basis: a trade mark, an earlier trade name, a contract or an unlawful act. Registration of your brand by someone else is not enough on its own.

Trade mark infringement

Benelux trade marks are protected under the Benelux Convention on Intellectual Property (BVIE); EU trade marks on equivalent terms under the EU Trade Mark Regulation. You must show that the sign in the domain name is identical or similar to your mark and used for similar goods or services with a risk of confusion, or, for a well-known mark, that the use takes unfair advantage of or harms its reputation.

Trade mark law requires use in the course of trade. A registration that leads nowhere is not automatically infringement; an active website, a redirect to a competitor, a parking page with advertisements or e-mail use usually is. The Supreme Court (Hoge Raad) confirmed in the dungs.nl case that a holder can only be ordered to transfer a domain name if legally obliged to do so, for example under a contract or because registration or use infringes the claimant’s trade mark (Hoge Raad 30 November 2018, ECLI:NL:HR:2018:2221).

Trade name infringement

A trade name (handelsnaam) used in the Netherlands is protected without registration. Article 5 of the Trade Name Act (Handelsnaamwet, Hnw) prohibits using a trade name that is identical or only slightly different from one lawfully used earlier by another business, where confusion is to be feared given the nature and location of both businesses. Article 5a Hnw prohibits a trade name that contains another’s trade mark where confusion about origin is likely.

A domain name only counts as a trade name if the business is actually conducted under it. For descriptive names, the Supreme Court held that Article 5 Hnw imposes no additional requirements; the low distinctiveness is weighed when assessing the risk of confusion (Hoge Raad 19 February 2021, ECLI:NL:HR:2021:269). Under Article 6 Hnw you can also petition the subdistrict court (kantonrechter) to order the other party to change its trade name.

Unlawful act under Article 6:162 BW

Without a trade mark or earlier trade name, the remaining route is the unlawful act. It is narrower than many expect: the Supreme Court held that using a purely descriptive domain name is not unlawful in itself, even if it causes confusion, unless additional circumstances make it so (Hoge Raad 11 December 2015, ECLI:NL:HR:2015:3554, Artiestenverloningen).

This route works best against conduct rather than a name: systematically registering competitors’ names, intercepting traffic, impersonating a business or misleading customers about a connection.

What are cybersquatting, typosquatting and hijacking?

These are commercial labels, not Dutch legal categories; the legal basis is still trade mark, trade name or unlawful act. Each calls for a different approach:

• Cybersquatting: registering a name matching someone else’s brand to sell or block it. Bad faith is often shown by an offer to sell far above cost or a portfolio of similar names.
• Typosquatting: registering predictable misspellings or other extensions, often combined with phishing or fake web shops.
• Hijacking: taking control of a name that is yours, through a hacked registrar account, a forged transfer or a supplier that refuses to hand it back. This is a contractual and sometimes criminal matter, handled through the registrar and the court.

How does the SIDN dispute resolution procedure work?

SIDN’s Dispute Resolution Regulations for .nl domain names offer a written procedure administered by the WIPO Arbitration and Mediation Center. A single panelist decides on the documents, usually within a few months, and the only possible outcome is a transfer of the registration to the complainant.

Who can use it, and what must you prove?

You must hold a name protected under Dutch law, such as a trade mark (including an EU trade mark), a trade name or a personal name; you do not have to be established in the Netherlands. You must prove three conditions:

• the domain name is identical or confusingly similar to your protected name;
• the registrant has no rights to or legitimate interest in the domain name; and
• the domain name was registered or is being used in bad faith.

The third condition differs from the international UDRP: under the .nl rules, bad faith at registration or in use is enough, while the UDRP requires both. That makes the .nl procedure easier where a name was registered innocently years ago and is now used against you.

Procedure, cost and outcome

You file the complaint with the WIPO Center, after which SIDN blocks any change of registrant. The registrant has a short period to respond, and SIDN can offer mediation before a panelist is appointed. The fee is set in WIPO’s schedule of fees for .nl cases and depends on the number of domain names; the complainant pays it and does not recover it, even when winning.

A successful complaint produces one remedy: transfer of the registration. There is no cancellation, no damages, no injunction against other use of the sign and no costs order. SIDN implements the decision after a short waiting period unless the registrant shows it has started court proceedings, and either party can go to court before, during or after the procedure. The current version of the Regulations and the fee schedule are published by SIDN and WIPO; check them before filing.

What about .com and other generic domains?

For .com, .net, .org and other generic extensions, the equivalent is ICANN’s Uniform Domain-Name Dispute-Resolution Policy (UDRP), also administered by WIPO among others. The main differences from the .nl procedure:

• Rights basis: a trade mark is required; a trade name alone is not enough.
• Bad faith: the domain must have been registered and be used in bad faith.
• Remedies: cancellation or transfer, but again no damages.
• Abusive complaints: a UDRP panel can declare reverse domain name hijacking where a complaint was brought in bad faith.

When should you go to the Dutch court instead?

Go to court when you need more than a transfer, or when the dispute is contractual. In summary proceedings under Article 254 Rv, the preliminary relief judge (voorzieningenrechter) can rule within days or weeks if the matter is urgent.

The court can do what a panelist cannot: prohibit use of the sign generally, impose penalty payments, award an advance on damages, and in intellectual property cases order the losing party to pay reasonable and proportionate legal costs under Article 1019h Rv. With leave under Article 700 Rv you can also seize the domain name for delivery. Disputes with a web agency or former employee who agreed to hold the name for you fall outside the SIDN procedure and belong in court.

What should you check as the party claiming the domain?

As a complainant, both routes depend on documents. Gather these before you file:

• proof of your right: trade mark registrations covering the Benelux or the EU, or dated evidence of trade name use such as invoices and a Chamber of Commerce (KVK) extract;
• the WHOIS record and the registration date of the disputed domain;
• dated screenshots of every page, redirect or parking page the domain leads to;
• correspondence, including any offer to sell and your cease-and-desist letter;
• evidence of actual confusion, such as misdirected e-mails or customer questions;
• for hijacking: registrar logs, transfer notifications and the contract naming the registrant.

What should you check as the domain holder?

Receiving a complaint does not mean you have done anything wrong. Check these points and respond on time, because a default effectively concedes the case:

• Did you use the domain, or prepare to use it, for a genuine offering of goods or services before you heard of the dispute?
• Are you commonly known by the name, or is the name descriptive and used descriptively?
• Did you register the name before the complainant’s trade mark or trade name existed?
• Do you operate in an unrelated sector, so that confusion is unlikely?
• Is the complaint abusive? Under the .nl rules there is no reverse domain name hijacking finding, so a declaration or costs must come from the court.

How do you prevent losing your domain name?

Most Dutch domain name losses are contractual failures, not squatting. The registrant field must name your company as legal entity, not an employee, the agency or the founder personally.

• Register the .nl of your core brand before launch, with obvious typo variants and the extensions your customers use.
• Use SIDN’s registry lock (.nl Control), which blocks changes without the registrant’s explicit consent, and monitor renewals on a company calendar.
• Register your trade mark: without one the UDRP is closed to you.
• In contracts with web agencies and IT suppliers, state that your company is and remains the registrant, that the supplier cooperates in any transfer on pain of a penalty, and that credentials and the authorisation code are handed over on termination.
• In employment contracts, confirm that domain names registered for work belong to the company and must be transferred on departure.

If a .nl domain is cancelled or not renewed, it enters a quarantine period during which only the former registrant can reinstate it; after that, anyone can register it. For a hijacked name, have the registrar freeze the record, notify SIDN, secure the e-mail accounts, consider a criminal complaint and prepare summary proceedings.

What can we do for you with a domain name dispute?

Our IT lawyers help businesses recover and defend domain names; our IT law guides set out the wider framework.

• We assess whether you have a trade mark, trade name, contractual or unlawful act claim.
• We send the cease-and-desist letter to the registrant or your former supplier.
• We draft and file the complaint under the .nl Regulations or the UDRP, or the response if you are the holder.
• We bring summary proceedings for transfer, an injunction and penalty payments, with a seizure where needed.
• We review your agency and employment contracts for domain name ownership clauses.

Summary

• Domain name disputes are decided under trade mark law, the Trade Name Act (Articles 5 and 5a Hnw) or Article 6:162 BW.
• A purely descriptive domain name may be used even if it causes confusion, unless serious additional circumstances exist (ECLI:NL:HR:2015:3554).
• The SIDN procedure only transfers a .nl registration; bad faith at registration or in use is enough.
• Summary proceedings offer an injunction, penalty payments, seizure and recovery of legal costs under Article 1019h Rv.
• Make sure your company is the registrant and that supplier contracts confirm this.

Frequently asked questions