PROTECTING THE iPHONE TRADEMARK UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Much ado about iPhones and trademarks
Last week at the much-anticipated Macworld event in San Francisco, Apple launched a new handheld mobile phone device under the name iPhone. The launch of Apple’s iPhone has been long awaited. The iPhone combines different products, a mobile phone; a widescreen iPod with touch controls; and an Internet communications device, into one small and lightweight handheld device.
But now another well-known company, Cisco Systems, is suing Apple for trademark infringement in a US federal court, for using the name iPhone. What the ultimate outcome of this infringement case will be depends of course on all pertinent specific facts and circumstances. This is no different under Netherlands Antilles law.
Netherlands Antilles law provides for legal means to enable natural and legal persons to protect their intellectual property (often divided into two categories: industrial property, which includes inventions (patents), trademarks, industrial designs; and copyright) adequately and in accordance with national and also international standards; a number of international agreements with respect to intellectual property rights are in force in the Netherlands Antilles. The law governing the right to use trademarks for the purpose of distinguishing goods and services from those of others is set forth in the Trademarks Ordinance.
Briefly stated, based on his exclusive right and without prejudice to the application of ordinary civil law concerning liability in respect of unlawful acts, the mark holder can oppose a variety of uses of the mark or a corresponding symbol, e.g. if as a result thereof the possibility exists for the public to make an association between the symbol and the mark or if through such use unjustified benefit can be derived from the distinguishing ability or the reputation of the mark, or its distinguishing ability or reputation can thus be harmed.
As in most jurisdictions, the rights in a mark may lapse in certain cases, e.g. through the voluntary cancellation or the expiration of the validity of the registration of the filing. In addition, the rights in a mark may be declared null and void, e.g. insofar as, without valid reasons, during an uninterrupted period of five years no normal use was made of the mark in the Netherlands Antilles for the goods or services for which the mark has been registered; in a lawsuit, the judge can order the mark holder, in whole or in part, to prove the use. The rights in a mark may also be declared null and void insofar as, after having been duly acquired, the mark has become the common designation of a product by the mark holder’s doing or through his omission; or insofar as the mark, as a result of the use being made thereof for the goods for which it has been registered, can mislead the public, particularly as regards the nature, the capacity or the geographic origin of these goods or services.
Karel Frielink / Ursus van Bemmelen
Curacao-based Attorneys (Lawyers)
