European Union: The Dutch Docket No Longer A Rocket

Last Updated: 8 June 2012
Article by Richard Price

We have assembled a lot of materials and statistics comparing the leading European patent litigation jurisdictions. This variations between these courts has lead to widespread forum shopping. There have been fewer opportunities to compare the passage of cases in leading jurisdictions in trade mark cases.

Our group has now had the experience of being able to compare the progress of two trade mark cases, essentially about the same subject-matter, in the English and Dutch courts, to the highest level in each case. The outcomes were similar. The timelines to the final decision in each country were starkly different.

The cases concerned the words BACH, BACH REMEDIES and BACH FLOWER REMEDIES used in practice in relation to complementary medicines, and in registration for pharmaceutical and homeopathic remedies and services related to them.

The story started back in the 1930s. Dr Edward Bach was a well-renowned physician practising in Harley Street, London. Dr Bach became convinced of a link between emotional and physical health and, from 1930 onwards, devoted himself entirely to finding natural remedies that would combat poor health by introducing harmony and peace into the lives of patients. With this in mind he developed remedies manufactured from plant flowers and blossoms of trees and shrubs. Each of these remedies was attuned to specific emotions and frames of mind.

Dr Bach described his remedies in a book that appeared in 1933 entitled "The Twelve Healers and Other Remedies". This book also contained precise indications of how the remedies should be prepared, and two methods were described for this. He was, and remained, very keen to ensure that as many people benefitted from the remedies and that they should know how to make them. The book also gave the details of two firms of London chemists who would supply the remedies for people who could not make their own.

Whether, Dr Bach's prescription for a healthy life benefitted him I had rather doubted. In 1936, Dr Bach died prematurely. He was only 50 years old. He had moved to a small village in Oxfordshire to carry on his complementary medicine work. However, I have recently learnt that he was diagnosed as having cancer in 1917 and so to survive another nearly 20 years, and to continue his philanthropic work to the end, was a significant achievement.

After his death, his assistants (disciples even) carried on his philanthropic work. In 1979, a successor to those disciples, but not Dr Bach's business because there never was one, set up a business and registered Bach as a trade mark for relevant goods. In 1988, Julian Barnard, a devotee of Dr Bach's original teachings, set up a company called Healing Herbs Limited to spread the gospel of Dr Bach and to provide flower remedies, made in accordance with Dr Bach's original directions, for those who could not make them themselves.

His company, and many other practitioners, were harried by trade mark agents for the registered proprietor, a company confusingly called Bach Flower Remedies Limited. By this time, so the evidence showed, the products – whoever made them – had become known as Bach remedies or Bach flower remedies out of respect for Dr Bach and his work, and as the convenient and natural way to refer to these products. Likewise, the practitioners had become known as Bach practitioners.

The situation reached such a pitch that Julian Barnard's company issued High Court proceedings against Bach Flower Remedies Limited ("Flower Remedies") asking the English High Court to revoke the latter's UK trade mark registrations for Bach and a stylised signature version of that word.

To cut a long – but extraordinary – story short, after scores of witnesses were cross-examined at the trial in London, the trial judge, now Lord Neuberger (the former Law Lord and now Master of the Rolls – President of the Court of Appeal), held that the word registration was descriptive of the goods it was applied to, was generic, should not have been registered and was invalid. The stylised signature mark was allowed to remain on the register, but subject to the exclusion that the registration gave no proprietary rights to the word Bach itself.

The Court of Appeal robustly upheld the trial judge's decision and refused the Defendant's request to refer the case to the European Court of Justice.

The further application for permission to appeal led to a hearing in the House of Lords. The application was refused. The Defendant was ordered to pay all the Claimant's legal costs. That was in 2000.

A similar, but not identical, situation had all this time prevailed in the Netherlands. After a short pause to recover its energy for further significant litigation, Healing Herbs and its indefatigable Managing Director, Julian Barnard, applied to revoke the word registration and the signature registration there. Paul Steinhauser (now of Arnold Siedsma) was the lead lawyer for Healing Herbs; Charles Gielen of Nauta Dutilh led for Flower Remedies.

At the trial, the Dutch court ordered all of the registrations to be revoked. The Dutch Court of Appeal agreed that the Bach word marks were generic and had not acquired distinctiveness through use and should be expunged from the Benelux Trade marks Register, but spared the signature registration, holding that it had a sufficiently distinctive nature so as not to suffer the same fate.

The Dutch Supreme Court has just upheld the Court of Appeal's decision.

The case was unusual in a way different from its unusual subject-matter. As I trailed at the start, the different periods of time the English case and the Dutch case took to reach their conclusions were remarkably different.

The English case had started in 1996, the first instance decision was delivered on 22 May 1998, the Court of Appeal decision as given on 21 October 1999, and the House of Lords refused permission for a further substantive appeal in a hearing on 4 July 2000. So the English case took no more than four years from start to finish.

The Dutch case took ten years.

It started in 2002. The trial decision was on 30 June 2004. The Court of Appeal's final judgement was given on 23 February 2010. The Supreme Court handed down its decision on 20 January 2012.

For Healing Herbs, it was worth waiting for – just !


Paul Steinhauser, now of Arnold Siedsma was lead advocate for Healing Herbs in the Netherlands; Charles Gielan of Nauta Dutilh lead for Flower Remedies. Richard Price lead the UK team for Healing Herbs throughout.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.