Newsletter February 2008
CORPORATE
LITIGATION
Supreme Court: Loyal Investor May Still Receive Extra
Reward
According to the Supreme Court, companies may hold out the
prospect of extra dividend to shareholders who have registered
themselves at the company as long-term investors. The Supreme Court
also ruled in this case that the Enterprise Section
(Ondernemingskamer, "OK") can only take immediate
measures if there are compelling interests, before an investigation
is ordered.
read more
EMPLOYMENT
No Permanent Appointment of Employee with Chronic Illness is
Discriminatory
An employee works through a temporary employment
agency as facilities assistant in the post room of the Dutch Tax
and Customs Administration. She suffers from a disorder that causes
her recurrent cysts in the groins. In two meetings, her superior
promised her that if she performed well she would be recommended
for a fixed appointment of one year. But the management did not
appoint the employee, the reason for the rejection was connected to
her sickness absence.
read more
INTELLECTUAL
PROPERTY
Supreme Court Follows Lidl Judgment in Ruling on
Non-Use
In a recent judgment on lapse of a trademark because of non-use,
the Supreme Court has followed the line taken by the European Court
of Justice in Haupl/Lidl. As a result, a valid reason for non-use
will be assumed more easily than under the former Benelux case law.
read more
The Use of Ad Words When Selling Trademark Products on
the Internet
On 9 January 2008 the Court of The Hague passed
judgment in a case regarding Ad Words. The central question in this
case concerned the extent to which it is allowed to use the
trademark of another party in an Ad Word, which is used in search
engines to call up an ad. In general this concerns the use of a
third-party trademark for advertising purposes.
read more
MEDIA
Press Law: Dutch Supreme Court Sets New Standards
The discussion about the liquidation of Oettinger, a jew in
hiding, by movie maker Van Gasteren in 1943 has led to a second
important press law judgment of the Dutch Supreme Court. After the
Supreme Court ruling of 1995, in which a publication in newspaper
Het Parool on the role of Van Gasteren was considered
unlawful, in this instance the Supreme Court found that the online
"open letter" on the subject of journalist Pamela
Hemelrijk was a lawful publication. The Supreme Court has made a
number of fundamental statements.
read more
New Directive on Audiovisual Media Services
At the end of 2009 the successor of the Television
Directive will have to be implemented in the Netherlands. The
classic channels will profit from this, because the advertising
rules will be relaxed. As a result, providers of on demand services
will have to comply with more rules in the near future.
read more
PERSONAL DATA PRIVACY
Sending Spam to Legal Persons Now Also Prohibited
Until recently, the mere sending of 'SPAM' to natural
persons was prohibited. On 22 January 2008 the amendment of the
Telecommunications Act (Telecommunicatiewet
("TW")) was realized. As a result of this amendment,
sending SPAM to legal persons is also prohibited. What are the
consequences for practice?
read more
Promusicae versus Privacy: Right of Providers to Remain
Silent Relying on Privacy Is Possible
On 29 January 2008 the European Court of Justice
("ECJ") decided that Member States do not have to include
a provision into their national law under which ISPs are obliged to
disclose name and address details to organizations managing
collective rights. The judgment emphasizes the importance of the
protection of privacy of natural persons.
read more
REAL PROPERTY AND
CONSTRUCTION
Termination of Rental Agreement Because of Abuse of
Caretaker of Apartment by Tenant's Son?
A tenant is liable towards his landlord for his own
behavior as well as for the behavior of third parties who use the
rented property with his consent. This provision is an elaboration
of the tenant's obligation to use the rented property as a good
tenant. The judgment of the Dutch Supreme Court which is discussed
below relates to the question of whether the assault of the
caretaker of an apartment by the son of a tenant living with her
constitutes a failure that justifies the termination of the rental
agreement.
read more