Hollanda yasalarına göre lisans sözleşmesi: Neleri düzenlemelidir?

A licence agreement (licentieovereenkomst) gives someone permission to use your intellectual property right on your terms, while you keep ownership of the right itself. Under Article 2 of the Dutch Copyright Act (Auteurswet), an exclusive copyright licence must be granted by a written deed, just like a transfer of the right; a non-exclusive licence has no formal requirement, but should still be put in writing.

The agreement should cover three things: the type of licence (exclusive, sole, non-exclusive or open), its scope (which right, for which products, in which territory and for how long) and the fee: a lump sum, a royalty per unit or a share of turnover, with audit rights that make a royalty verifiable.

Fikri mülkiyet olarak ne sayılır?

Intellectual property rights protect the results of creative or technical work. Copyright follows from the Copyright Act, trademarks from the Benelux Convention on Intellectual Property (BVIE), patents from the Patents Act 1995 (Rijksoctrooiwet 1995) and trade names from the Trade Names Act (Handelsnaamwet).

Each right lasts for a different period. Copyright runs until 70 years after the death of the author (Article 37 Copyright Act), a Benelux trademark registration lasts ten years and can be renewed, and a patent lasts at most 20 years. A licence cannot run longer than the right it covers, so check the remaining term before you agree on the duration.

What these rights have in common is that only the holder may use them, unless it gives someone else permission. A licence is how you give that permission without giving up the right.

Taraflar kimler ve davanın kapsamı nedir?

The licensor (the holder of the right) and the licensee (the party that obtains the licence) must be named in full, with the registered names shown in the Chamber of Commerce (KVK) register. A licence to one group company does not automatically extend to its affiliates, so decide which entity may use it.

Describe the scope in detail: which right is licensed (for example a trademark, software or a patent, including its registration or application number), how the licensee may use it (use only, or also sub-licensing and exploitation), in which territory (the Netherlands, the Benelux or the whole of Europe) and for how long.

Hangi lisans türü sizin durumunuza daha uygun?

The agreement must state clearly what kind of licence it is. For an exclusive copyright licence, the written deed required by Article 2 of the Copyright Act is the only reliable evidence of exclusivity.

• Özel: Bu hakkı yalnızca lisans alan kişi kullanabilir veya bundan faydalanabilir; lisans veren kişi bu hakkı başkasına lisanslayamaz ve aranızdaki anlaşmaya bağlı olarak kendisi de kullanamaz.
• Münhasır olmayan: the licensor may still license the right to others and keep using it.
• Tek: one licensee and the licensor may both use the right, but no one else.
• Açın: Belirtilen şartları yerine getiren herkes lisans alır.

An exclusive licence often commands a higher fee, but it can leave your right unused for the full term if the licensee does not commercialise it. Agree on minimum obligations, such as a minimum royalty or minimum sales effort, and a right to terminate if nothing happens within, for example, twelve months.

Anlaşmaya başka neler dahil edilmeli?

Arrange payment, enforcement and transfer explicitly, because the statutory rules give the licensee fewer rights than many expect. Under Article 2.32 BVIE, a trademark licensee can only take action against an infringer with the consent of the trademark holder.

• MKS ücret: a fixed periodic amount, a royalty or a lump sum, the consequences of late payment and, for a royalty, your right to audit the licensee’s figures.
• Geçerli hukuk ve uyuşmazlık çözümü: which law governs the agreement, which court has jurisdiction, or whether arbitration applies.
• Gizlilik of the information exchanged, during the term and after it ends.
• İhlale karşı yaptırım: who may act against third parties and who bears the costs.
• Aktarılabilirlik: if the licensee may not pass the licence on, say so explicitly.
• Know-how and improvements: whether unpatented know-how is included, and whether improvements by the licensee come back to you, for example through a non-exclusive licence back.

Exclusivity and territorial restrictions must also comply with competition law: Article 101 of the Treaty on the Functioning of the European Union (TFEU) and Article 6 of the Dutch Competition Act (Mededingingswet).

Lisans sözleşmesi nasıl sonlandırılır?

Set a fixed term, an indefinite term with a notice period, or a fixed term that renews automatically unless either party gives notice. If you agree nothing, a court will assess termination of an open-ended agreement under the general rules of reasonableness and fairness (Article 6:248 of the Dutch Civil Code, BW).

Also agree on what happens to stock, sub-licences and confidential information once the licence ends. If the licensee breaches the agreement, you can claim damages under Article 6:74 BW or dissolve the agreement under Article 6:265 BW, unless the contract regulates this differently.

What should you check as a licensor?

As licensor you want your right to be used, paid for and protected. Check these points before you sign.

• Is an exclusive copyright licence laid down in a written deed signed by both parties?
• Does the agreement contain a minimum royalty or minimum sales effort, with a right to terminate if it is not met?
• Can you audit the licensee’s sales figures, and what is the interest on late payment?
• Is sub-licensing and transfer of the licence excluded unless you consent?
• Does the term end no later than the protection of the underlying right?

Lisans sahibi olarak neleri kontrol etmelisiniz?

As licensee you want certainty that you may use the right for the full term and can defend it. Check these points before you sign.

• Is the licensor registered as the holder of the trademark or patent in the relevant register?
• Does the scope cover all products, channels and countries in your business plan?
• May you act against infringers yourself, with the consent required by Article 2.32 BVIE given in the agreement?
• Is the licence registered in the trademark or patent register, so that you can invoke it against third parties?
• What happens to your stock and customer contracts when the licence ends?

What can we do for you with a licence agreement?

Ürettiğimiz şirket avukatları draft and review licence agreements for licensors and licensees.

• We draft the licence agreement, including the written deed for an exclusive copyright licence.
• We review a licence offered to you and identify risks in scope, fee and termination.
• We check exclusivity and territorial clauses against competition law.
• We arrange registration of a trademark or patent licence in the relevant register.
• We act for you in a dispute about payment, breach or termination of the licence.

ÖZET

• Lisans sözleşmesi, birinin fikri mülkiyet hakkınızı sizden izin almadan kullanmasına olanak tanır.
• An exclusive copyright licence requires a written deed under Article 2 of the Copyright Act.
• Set out the type of licence, its exact scope, the duration and the fee, with minimum obligations for an exclusive licence.
• Decide who may act against infringement, whether the licence can be transferred, and what happens to improvements.
• Anlaşmanın nasıl ve ne zaman sona ereceği ve sonrasında ne olacağı konusunda önceden anlaşın.

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