Disclosure in The Netherlands (2025): Identifying (IP) Infringers and Recovering Damages
June 8th, 2026
It often does not take long for a business to notice when its rights are being infringed. In the case of trademark infringement, this might involve monitoring by brand protection teams, reports from customers about counterfeit products, or online advertisements posted without permission. The question then is not only whether enforcement is necessary, but also who is behind the infringement and exactly how much damage has been caused. Until recently, too few tools existed to address these issues.
Anonymity in (IP) Infringements and Evidence Issues
Infringers regularly hide behind anonymity. Online stores use false information, advertisements are placed through intermediary accounts, and financial flows are difficult to trace. Takedown requests quickly feel like a drop in the bucket and incur costs that cannot be recovered. Even with OSINT research or external investigations, it not always possible to determine who is actually responsible, let alone how much they earned from the infringement. This makes it difficult to substantiate a claim for damages and difficult to effectively stop the infringement.
Information Position of Intermediaries (Platforms, PSPs, and Logistics)
In addition, rightsholders are often dependent on information from third parties. Online platforms, hosting providers, domain name registrars, payment institutions, and logistics service providers frequently possess crucial data. It is precisely these parties that know who is behind a webshop, who received the payments, how much was ordered, or who is responsible for the shipment or import of goods. In practice, however, it proved difficult to obtain this information, as intermediaries cited their internal policies or privacy laws (GDPR) and sometimes cooperated only if the rightsholder obtained a court order.
New Dutch Evidence Law (2025): Expanded Right of Access
With the Act on the Simplification and Modernization of Evidence Law, which entered into force on January 1, 2025, the right of access has been strengthened in the Netherlands. Under certain conditions, information can now be requested without first having to initiate legal proceedings. This may pertain to data from the opposing party itself, but also to information from third parties such as intermediaries who have access to the relevant information. In addition, parties in possession of the requested information are legally obligated to provide it, unless an exception applies, such as a statutory privilege or “compelling reasons” (only if those reasons outweigh the need ’to establish the truth’ in a specific case).
What if there is a lack of cooperation?
If a party fails to provide information despite a valid request for access, the court may still be called upon. The prevailing line in Dutch case law regarding the new right of access is: “disclose, unless.” Not only the infringer themselves, but also intermediaries may be ordered to pay litigation costs if they refused to cooperate with a request for access that meets the legal requirements prior to litigation. At the same time, diligence remains essential: particularly in IP cases, the existence of the (imminent) infringement must be sufficiently substantiated, all the more so because a rejection in an IP case also entails litigation risks for the requesting party.
Effective enforcement starts with information
The new right of access can be a powerful tool for identifying the source of an infringement and better assessing the damage. This makes the enforcement of (IP) rights less dependent on assumptions and more based on reliable information. For rightsholders, this offers a significant advantage: quick transparency and a stronger position in recovering damages.
A well-drafted request makes the difference between effective enforcement and a costly rejection. Are you unsure whether your situation meets the conditions of the New Right of Access in The Netherlands? Our attorneys will assess your case and draft the request for out-of-court disclosure.
Dillinger Law assists various companies in identifying infringers and determining and obtaining compensation for damages. For questions, please contact Leonie Kroon (kroon@dillingerlaw.nl) and Xavier Koehoorn (koehoorn@dillingerlaw.nl ).