Imagine you’ve spent months developing a new product, come up with a catchy brand name, or taken a stunning photograph. Naturally, you don’t want anyone to just walk off with it. Understandable. But how do you make sure it’s protected? And what if you discover that someone is copying your name or design without permission — or if you’re the one being accused of doing that to someone else?
Intellectual property rights (IP rights) are rights that protect the products of the human mind. They don’t cover the physical object itself, but rather what you’ve created: the technology behind a product, a design, a company name, a brand name or logo, or a piece of text or a photograph. IP rights allow you to prevent others from simply copying or using your work, and to decide whether — and under what conditions — someone else may use it.
In this article, we explain the basics of IP law. What are the key rights, and when do you rely on which one?
1. Patent Law — for technical inventions
Patent law protects technical inventions. These can include entirely new products or processes, as well as improvements to existing ones. The invention must be new, inventive, and capable of industrial application.
A patent does not arise automatically; it must be applied for at the patent office, which then decides whether to grant it.
A patent holder can prevent others from commercially exploiting the invention (such as manufacturing, using, selling, or stockpiling it). In return, the invention is made public, allowing others to build on it — and to use it freely once the protection period expires.
The maximum term of protection is 20 years. For pharmaceuticals and certain other products, an additional five years of protection may be obtained through a supplementary protection certificate.
Examples: ibuprofen as a painkiller, the mRNA technology underlying certain COVID-19 vaccines, a new type of solar panel, the notch on a rusk that makes it easy to remove from the packaging.
2. Design Law — for the appearance of products
Design law protects the appearance (design) of a product — in other words, how something looks, not how it works. Protection usually applies to three-dimensional objects, but two-dimensional designs (such as patterns on fabric or wallpaper) can also qualify.
To obtain protection, the design must be new and have individual character. In brief: there must be no identical earlier design on the market, and it must look distinctly different from what already exists.
Protection generally requires registration, although within the EU there is also limited protection for unregistered designs (for a period of three years).
A registered design can be protected for up to 25 years (renewable in five-year periods).
Examples: the appearance of a bicycle basket, the design of a chair, the print on a garment.
3. Trade Mark Law — for distinctive signs
Trade mark law protects signs that distinguish products or services from those of others. This includes names, logos, and slogans, but also colours, shapes, or even sounds.
A trade mark must be registered to obtain protection (in the Benelux, this is done through the BOIP).
To be registrable, a sign must have distinctive character. This means, first and foremost, that the mark must not be descriptive: “Pure” as a name for chocolate, “Swift” as a name for a courier service, or “Supermarket” as a name for a supermarket would all be refused. In addition, the mark must not be too similar to one already registered for comparable products or services.
A trade mark can, in principle, remain protected indefinitely, as long as it is renewed on time and genuinely used.
Examples: the name “Apple”, Nike’s swoosh logo, the distinctive blue of Tiffany & Co.
4. Trade Name Law — for the name of a business
A trade name is the name under which a business presents itself to the outside world. Trade name law protects against confusingly similar names being used by competitors.
Protection arises through actual use of the name; simply registering a business (or its trade name) with the Chamber of Commerce does not automatically confer protection.
Note the distinction from trade mark law: a trade name refers to the business itself, whereas a trade mark distinguishes products or services. In practice these rights can overlap, but legally they are distinct.
Protection lasts, in principle, for as long as the trade name is actually in use.
Examples: “ARQUE Advocaten” as the name of a law firm, “Einstein” as the name of a restaurant.
5. Copyright — for creative works
Copyright protects original, creative works.
Importantly, unlike the rights described above, copyright arises automatically at the moment a work is created — no registration is required.
The creator receives the exclusive right to reproduce (in other words, copy) and publish the work. This right exists, in principle, for the creator’s lifetime plus 70 years after their death.
Examples: paintings and drawings, written works (such as a novel or blog post), photographs, videos, music.
Final thoughts
IP law regularly gives rise to tricky questions in practice. Are you actually allowed to bring that new product to market, or does it too closely resemble something a competitor is already doing? And if you receive a cease-and-desist letter alleging infringement — what then? Or the reverse: you discover that someone is using your work, your name, or your design without permission.
We are happy to assist in all of these situations. Whether you’re an entrepreneur looking to launch a new product line and wanting to make sure it doesn’t infringe existing rights, or a designer who has discovered that a major online retailer is selling your prints without authorisation — we’re here to help. We also advise on drafting and reviewing contracts containing IP provisions, such as licensing agreements.
Do you have a specific question, or would you simply like to talk things through? Feel free to get in touch.