Intellectual property (IP) encompasses rights to trademarks, patents, designs, copyrights, and trade secrets. Protection and enforcement vary widely internationally. In our practice, we see that IP is often a company's most valuable asset and, at the same time, its most vulnerable. A good contract is your first line of defense. Without clear agreements, your IP becomes fragmented, claimed by third parties, or worthless upon termination of a collaboration.
What is the legal problem?
IP protection is regulated per right (copyright, patent law, trademark law, design law, trade secrets). Internationally, rules regarding creation, registration, ownership, and enforcement vary. In collaborations, questions arise regarding who owns foreground IP, how background IP is licensed, and what happens upon termination. Unclear agreements lead to loss of rights.
What does the law say?
Copyright arises by operation of law under Article 1 of the Copyright Act (Netherlands) and the Berne Convention. For trademarks, Regulation (EU) 2017/1001 (EU Trademark) and the Madrid Protocol (1989) apply to international registration. For patents, the European Patent Convention (EPC, 1973) and the Patent Cooperation Treaty (PCT, 1970) apply. The Unitary Patent has been in force since 1 June 2023.
Protection of trade secrets follows from Directive (EU) 2016/943 and the Dutch Trade Secrets Protection Act (2018). The TRIPS Agreement (1994) provides minimum standards for WTO members. Freedom of contract and competition rules apply to licenses under Regulation 316/2014 (Technology Transfer Block Exemption).
What risks do companies face?
Unprotected IP in new markets can be claimed by third parties (trademark squatting in China under first-to-file). Upon termination of cooperation, a former partner may compete with your IP. Unclear ownership rules lead to legal disputes over reports, software, and designs. Without confidentiality and non-aggression clauses, trade secrets are lost. Damage to IP is often irreversible.
Practical example from our practice
We assisted a Dutch design studio in collaborating with a Vietnamese production partner. No NNN agreement, no Vietnamese trademark registration. The partner registered the design locally and blocked export by third parties. Our client temporarily lost Vietnam as a market. For contract renewal, we incorporated: trademark registration via the Madrid Protocol with designation of Vietnam, an NNN agreement under Vietnamese law, and structured IP transfer. Subsequent extensions proceed without issues.
What can you do?
Register trademarks, patents, and designs in a timely manner in all relevant markets via the Madrid Protocol or PCT. Conclude NNN or NDA contracts for production and cooperation. Define background, foreground, and sideground IP. Clearly regulate ownership transfer and licensing. Incorporate audit and enforcement rights. Combine contractual protection with technical measures (security, watermarks). See also our article on Registering Trademarks Internationally.