A cease and desist letter is a formal written demand that an infringer stop using your intellectual property, confirm in writing that it will not resume, and settle the consequences of the infringement so far. Under Dutch law it is called a sommatie or ingebrekestelling. It is not a court order and has no direct coercive force, but it fixes the date on which the infringer was warned, it puts the other party in default, and in practice it resolves the majority of infringement files without proceedings.
What a cease and desist letter does under Dutch law
The letter has three legal functions and it is worth being clear about which one you are relying on. First, it is the notice of default required by article 6:82 of the Dutch Civil Code before an obligation to compensate delay damages arises. Second, it interrupts the limitation period under article 3:317 of the Civil Code, provided it contains an unambiguous reservation of the right to performance; a vague complaint does not interrupt anything. Third, it creates evidence of knowledge, which matters because an infringer who continues after a well-founded warning is acting deliberately, and Dutch courts weigh that when assessing an injunction, a penalty and the allocation of costs.
What the letter does not do is create rights you do not have. A Dutch court will look at the underlying entitlement, not at the confidence of the letter. If the trade mark was never registered for the goods concerned, or the copyright work fails the originality requirement, the letter is worthless and may itself be unlawful. The preparation therefore matters more than the drafting.
Establish the right and the evidence before you write
The first question is which right is being infringed, because each right has its own basis, its own scope and its own proof requirements. Copyright arises automatically under the Auteurswet as soon as a work with an own original character bearing the personal stamp of the maker is created; there is no registration and no register, so ownership is proved with dated files, contracts and delivery records. Trade marks and designs in the Netherlands are Benelux rights under the Benelux Convention on Intellectual Property, registered with the Benelux Office for Intellectual Property in The Hague, or EU rights registered with the EUIPO; without registration there is no trade mark right, only the residual protection of the general tort provision. Patents follow the Rijksoctrooiwet 1995 or the European route, and the scope of protection is determined by the claims. Trade secrets are protected under the Wet bescherming bedrijfsgeheimen, which implements the EU trade secrets directive, and that protection only exists if you can show that you took reasonable steps to keep the information secret.
Where none of those rights applies, the fallback is article 6:162 of the Civil Code. Copying a product that is not protected by an IP right is in principle permitted, but it becomes unlawful where the imitation needlessly causes confusion about origin. That doctrine, known as slaafse nabootsing, is narrower than most claimants assume and it does not save a weak file.
Evidence is collected before the letter goes out, not after. Screenshots with a visible date and URL, purchases of the infringing product with an invoice, printouts of advertising, and where the stakes justify it a notarial record. Once the infringer has been warned, the listing disappears within the hour and the proof disappears with it. For a broader overview of the rights themselves, see our guide to intellectual property law in the Netherlands.
Spotting infringement of each type of right
Copyright infringement is the reproduction or communication to the public of a protected work, or of a part of it that is itself original, without the consent of the rights holder. Adaptation counts as well: a redrawn illustration or a translated text remains an infringement if the protected elements are recognisable. A design that follows purely from a technical function is not protected, so a defence that the similarity is functional has to be taken seriously.
Trade mark infringement covers three situations that are often confused. Identical sign for identical goods requires no proof of confusion at all. A similar sign for similar goods requires a likelihood of confusion for the average consumer, assessed globally on the visual, aural and conceptual similarity together with the distinctiveness of the earlier mark. A mark with a reputation is also protected against use for dissimilar goods where the user takes unfair advantage of, or damages, the reputation or distinctive character. Use as a company name, as a domain name or as a keyword in search advertising can all constitute use in the course of trade.
Patent infringement is assessed against the claims as read by the skilled person in the light of the description and drawings. This is technical work and it is normally settled with a written opinion before any letter goes out, not least because the recipient will very often respond with an invalidity attack on the patent. Anyone considering enforcement should understand the strength of the granted right first; our article on applying for a patent in the Netherlands explains what the examination does and does not establish.
Trade secret misappropriation typically surfaces when a former employee joins a competitor and that competitor launches a comparable product with unusual speed. Here the letter has a second addressee: the new employer, who can be liable for using information it knew or ought to have known was obtained unlawfully. The file needs to show what the secret is, that it has commercial value because it is secret, and which measures protected it.
What the letter must contain
A letter that is going to be used in later proceedings has a fixed skeleton. It identifies the parties by their full legal names and, for companies, their Chamber of Commerce number. It identifies the right relied on with the registration number and the classes or claims, or with a precise description and proof of creation where the right is unregistered. It describes the infringing acts concretely, with dates, and attaches the evidence rather than referring to it. It states the legal basis. It then sets out the demands, and it sets a deadline.
The usual demands are cumulative: cease the infringement immediately and permanently; provide a written statement of the quantities produced, purchased, sold and still in stock, with the names of suppliers and business customers; hand over or destroy the remaining stock and the promotional material; recall goods already delivered to business buyers; and compensate the damage together with the legal costs. A deadline of a few days is normal for the cessation and a slightly longer one for the information. There is no statutory minimum period, but a deadline so short that compliance is impossible weakens the letter if it is later shown to the court.
The tone should be factual. Dutch judges read these letters, and an aggressive letter full of superlatives and threats of criminal complaint does not help the claimant. State the right, the facts, the demand and the consequence of non-compliance, and stop there.
The abstention undertaking and the penalty clause
The instrument that gives a Dutch cease and desist letter its teeth is the onthoudingsverklaring, an abstention undertaking that the recipient is asked to sign and return. In it the infringer undertakes to stop and to keep away from the right, and agrees to pay an immediately due contractual penalty for each breach and often for each day the breach continues. Because it is a contract, breach afterwards is a simple contractual claim rather than a fresh infringement action, which is far quicker and cheaper to enforce.
Two drafting points decide whether the undertaking is worth anything. The scope must describe the prohibited conduct precisely enough to be enforceable but broadly enough to cover the obvious variations, because an undertaking limited to one specific product invites a redesign. And the penalty must be set at a level a court will not moderate; Dutch law allows a judge to reduce a contractual penalty where its application would be manifestly unfair, so a disproportionate figure is a false comfort. A signed undertaking that also covers the information, the recall and the costs closes the file properly.
The risks of sending a letter
A cease and desist letter is not a free move. Dutch law recognises that brandishing an intellectual property right can itself be an unlawful act: a rights holder who warns an infringer, and above all who warns that infringer customers and distributors, while knowing or having to understand that the right does not hold up, is liable for the damage that follows. In patent practice this is known as wapperen, and an injunction against further warnings is a standard counter-claim. The greater the commercial effect of the warning, the more solid the underlying right has to be.
The second risk is that the recipient takes the initiative. Nothing prevents a party who has received a letter from starting proceedings for a declaration that it is not infringing, or from applying to have the trade mark revoked for non-use or the patent invalidated. That turns the rights holder into a defendant in a forum and at a moment chosen by the other side. It is one reason to check the strength and the maintenance of the right, including genuine use of the trade mark in the last five years, before the letter leaves the office.
The third risk is delay. A proprietor who knowingly tolerates the use of a later registered trade mark for five successive years can no longer act against it, and in preliminary relief proceedings any unexplained delay undermines the urgent interest that the procedure requires. Waiting a year and then demanding an injunction within 48 hours is a contradiction the judge will notice.
Reading the reply
Replies fall into four categories and each has its own follow-up. Full compliance should be recorded in a signed undertaking, with the information and the recall actually delivered and checked; a promise in an email is not enforcement. A partial acceptance usually opens a negotiation, and in trade mark and patent matters a licence or a coexistence agreement with defined territories, goods and signs is frequently the commercially better outcome than an injunction.
A reasoned denial deserves a genuine reassessment. Counsel on the other side may point out that the sign is used descriptively, that the goods are exhausted because they were put on the EU market with consent, that the patent claim does not cover the variant, or that the work is not original. If any of that is right, the file stops there and continuing is the expensive mistake. Silence, finally, is a decision in itself: it means the next step has to be procedural, and it should follow quickly, because a warning that is never followed up teaches the market that the right is not enforced.
If the letter is ignored: the Dutch enforcement routes
Dutch civil procedure has a dedicated chapter for intellectual property enforcement, and it is unusually effective. Preliminary relief proceedings, kort geding, before the voorzieningenrechter deliver an enforceable injunction with a penalty payment within weeks, and in genuinely urgent cases within days. The claimant must show an urgent interest and must accept that the judge decides on a provisional assessment without witness evidence.
Where the infringement is obvious and any delay would cause irreparable harm, article 1019e of the Code of Civil Procedure allows an ex parte injunction: the judge grants the order without hearing the other side, which then has the right to apply for its revision. Evidence can be secured in advance through a bewijsbeslag under articles 1019b to 1019d, a seizure of evidence carried out by a bailiff with the leave of the preliminary relief judge, after which separate proceedings are needed to obtain inspection of what was seized. Any provisional measure lapses if proceedings on the merits are not started within the period the court sets under article 1019i, so the provisional route always needs a plan for the substantive case.
Counterfeit goods entering the country are dealt with through customs. Under Regulation (EU) No 608/2013 a rights holder files an application for action with the Douane, after which suspected consignments are detained and, in the simplified procedure, destroyed if the declarant does not object. Jurisdiction is concentrated for the technical rights: the district court in The Hague has exclusive jurisdiction over Dutch patent disputes and acts as the EU trade mark and design court, and since 2023 European patents with unitary effect and unitary-effect infringement claims can be brought before the Unified Patent Court, which has a local division in The Hague. Our overview of intellectual property enforcement in the Netherlands sets out how these routes compare in cost and speed.
For infringements hosted online there is a parallel, cheaper route. A notice to the hosting provider or the marketplace under the notice and action mechanism of the Digital Services Act can remove a listing far faster than any court, and the provider loses its liability exemption once it has actual knowledge and does not act expeditiously. That route removes the listing; it does not give you damages or the identity of the seller, for which a court order is generally still required.
Costs, damages and time limits
Intellectual property is the exception to the Dutch rule that the losing party pays only a modest fixed contribution to legal costs. Under article 1019h of the Code of Civil Procedure the unsuccessful party pays the reasonable and proportionate legal costs actually incurred, within the indicative rates published by the judiciary for each category of IP case. That changes the economics of a cease and desist letter completely: a recipient who takes advice usually learns that losing means paying both sides.
On the claim itself, Dutch law offers the choice between compensation of the damage suffered, which may be calculated as lost profit or as a reasonable licence fee, and surrender of the profit the infringer made, which the Auteurswet, the Benelux Convention and the Rijksoctrooiwet each allow in addition to the injunction. The two cannot simply be added together. There is no such thing as statutory damages in the Netherlands, and there are no punitive damages; a letter that announces a fixed multiple of the licence fee as an automatic penalty is quoting a foreign system.
Time limits are strict enough to matter. A claim in damages for infringement is subject to the five year limitation period of article 3:310 of the Civil Code, running from the day after the injured party became aware of both the damage and the liable person, with an absolute limit of twenty years from the event. Because infringement is often continuing, each day can start its own period, but recoverable damage still shrinks as the years pass. A properly drafted letter interrupts the running period; a complaint on social media does not.
What to do now
If you suspect that your work, brand or invention is being used without permission, secure the evidence the same day, verify what you actually own and for which goods and territories, and only then decide on the letter. Consider whether the commercial objective is to stop the use, to be paid for it, or to obtain a licence, because that decision determines the tone and the demands. Weigh the route as well: for a marketplace listing a takedown notice may achieve more in a day than a letter achieves in a month, while for a competing product launch a preliminary injunction with a penalty payment is the only thing that stops the sales. If you trade across borders, check the position for each country separately; a Benelux registration gives you nothing in Germany.
Law & More advises rights holders and recipients of these letters on Dutch and European intellectual property matters, from assessing the strength of a right and drafting the sommatie and the abstention undertaking to preliminary relief proceedings and proceedings on the merits before the court in The Hague. If you have received a letter, do not sign anything before the underlying right has been checked. Contact Law & More B.V. or read our note on handling intellectual property disputes to see how a file is built.
