Restructuring of The Dutch Kingdom and consequences for trademark owners

The Kingdom of the Netherlands (“Koninkrijk der Nederlanden”) currently consists of three constituent countries: the Netherlands, the Netherlands Antilles and Aruba. The current Kingdom of the Netherlands was constituted with the proclamation of the Charter for the Kingdom of the Netherlands in 1954. From 1964 through the end of 1985 the Dutch Kingdom was comprised of two constituents the Netherlands and the Netherlands Antilles. The Netherlands Antilles up until the consisted of 6 islands: Aruba, Bonaire, Curacao, St. Maarten, Saba, St. Eustatius. The IPO office of the Netherlands Antilles was based in Curacao and registration there covered all 6 islands. On January 1st 1986, Aruba obtained a separate status (“status aparte”) and became a separate constituent within the Dutch Kingdom. The IPO office of Aruba was created to cover the registrations in Aruba under its own Trademark Act.

Restructuring
As of January 1st, 2009 further constitutional changes are scheduled to take place. Through date not all details are known and there are still some discussion going regarding certain matters.

Curacao and Sint Maarten
The islands of Curacao and Sint Maarten will each obtain a separate status (“status aparte”) and become individual constituents within the Dutch Kingdom.I expect in any event for Curacao to keep the current IPO office and that the registrations will cover, in any event Curacao. I don’t know if Sint Maarten will choose to either create its own IPO office or share this resource with Curacao.

Bonaire, Saba, and St. Eustatius
The islands of Bonaire, Saba, and St. Eustatius “BES-islands”, will resort directly under the Netherlands as sui generis special municipalities (“gemeentes”), which will resemble in many was the regular Dutch municipalities. Since Dutch law will (gradually) be introduced in the BES-islands, I expect the Dutch/EU-IP regulations to be applicable to these islands, so that these territories would be covered via EU trademark registrations. 

Outlook & recommendation

From discussions with governmental authorities, constitutional experst and political analysts I have learned that there is not much clarity on what will happen with the IP regulations once the restructuring begins effective January 1st, 2009.

I recommend the respective governments and legislators to make a decision on the subject matter promptly and to enact some mechanism of grandfathering or grace period in order to make sure that trademark owners are not harmed in any way. 

About the author: Lincoln D. Gomez is managing partner of Gomez & Bikker law, with offices in Aruba and the Netherlands Antilles. He heads the firm’s IP Practice Group and is a member of the www.inta.org.