Merck Sharp & Dohme (MSD) recently sued PI Pharma before the Brussels Commercial Court for the parallel import and repackaging of one of MSD's medicinal products. MSD based its claim on the alleged violation of the first, third and fourth Bristol-Myers Squibb conditions. Although this is not the first time that the Brussels Commercial Court has been involved in a dispute over the parallel importation of medicinal products, the judgment further refines the scope of certain Bristol-Myers Squibb conditions.
In a recent judgment, the Brussels Court of Appeal ordered two parallel traders to pay provisional compensation of €3 million to the Mitsubishi Corporation for illegally importing hundreds of Mitsubishi forklift trucks which had been on the Asian market into the European Economic Area via parallel trade routes. The court held that the parallel traders had failed to provide conclusive evidence that Mitsubishi, the proprietor of the Benelux and EU trademarks, had consented to the parallel trade.
The Mons Court of Appeal recently issued a judgment in a dispute between Verabel, holder of a complex trademark, and Verandas Confort, which used the word VERABEL as a Google AdWord. The court found that the AdWord VERABEL created likelihood of confusion between the goods concerned and infringed the trademark's function of origin. As a result, Veranda Confort was ordered to cease using the AdWord.
The Supreme Court recently issued a judgment in a dispute between a European patent holder and Swiss-based medical and dental equipment manufacturer Nouvag. The court confirmed that Nouvag had failed to comply with an order not to offer an infringing product in Belgium, as the product was presented on its website as being available throughout Europe. The judgment provides clarity on 'offering' as an act of patent infringement in Belgium.
The Potpourri I reform of civil procedure has made the suspensive effect of an appeal the exception rather than the rule. This could change the stakes of first-instance patent revocation cases. A literal reading of the relevant provisions suggests that, as a rule, a first-instance judgment revoking a patent is now enforceable pending an appeal. It thus makes sense to request the first-instance court to exclude the provisional enforcement of patent invalidity decisions.
A number of Belgian IP cases have involved the famous Le Pliage handbag. The majority of case law to date has recognised that this product can be protected under copyright law. However, the Ghent Court of Appeal recently decided that the handbag was not eligible for copyright protection as it had resulted in a trend. The court argued that the basic features of a style or trend are not eligible for protection under copyright law.
The Antwerp Commercial Court recently ruled that when assessing the similarity of trademarks and signs in an infringement claim, account may be taken of the trademark only as registered. Trademark owners are advised to file their trademarks in black and white, but also in the signature colour or colour combinations under which the trademark is recognised to obtain the broadest possible protection.
A Belgian court recently held that a painting by Luc Tuymans, entitled A Belgian Politician, was an unauthorised reproduction of photographer Katrijn Van Giel's image. The case illustrates the blurred lines between parody and copyright infringement, especially regarding appropriation art.
January 2015 brought two potentially significant developments for patent litigation in Belgium. The first was the consolidation of jurisdiction to hear patent cases in the Brussels Commercial Court. The second was a referral to the European Court of Justice regarding the statutory cap on the recovery of lawyers' fees by the prevailing party. In time, both may contribute to Belgium's rise to respectability as a patent jurisdiction.
The Brussels Commercial Court has held that the X shape of Mars's Dentastix dog food constituted a valid three-dimensional Community trademark and a valid Benelux design. Both IP rights had been invoked cumulatively against a Belgian company commercialising similar X-shaped chew sticks for dogs on the European market.
The front cover of a popular Belgian comic book was recently the subject of a preliminary ruling by the European Court of Justice (ECJ). The ECJ defined the concept of parody for the first time and clarified that the application of the parody exception is subject to striking a fair balance between the rights of the copyright holder and the party that invokes the exception.
A trademark is often the first contact that a consumer has with a product or service, and must therefore be attractive and adapt to the latest trends. In order to endure, a trademark must be continually modernised. A rights holder must also maintain the attractiveness of its trademarks by refreshing them and ensuring that each modified sign retains its distinctive character. A recent case, involving Gucci and Gerry Weber, considered this issue.
The Antwerp Court of Appeal recently confirmed the withdrawal of an ex parte order awarding a saisie-contrefaçon, a measure to obtain evidence of IP rights infringement, because the petitioner had withheld material facts from the court in the ex parte phase. According to the judgment, a court must be able to rely on the accuracy and completeness of the information provided to it in an ex parte request for a saisie.
The Supreme Court has confirmed that in the framework of criminal proceedings, the investigating magistrate may order all national operators and internet service providers to block access to websites which infringe IP rights. The ruling provides rights holders with an important tool to fight online piracy, since it seems to pave the way for easily adaptable and 'open' blocking orders.
A Supreme Court decision has reduced the legal certainty for licensors on whether a licensee can retroactively claim reimbursement of licence fees paid. Such retroactively reimbursable royalties can seriously endanger the licensor's position. The Supreme Court appears to have misread the lower instance decision, leaving it intact but on the basis of false assumptions.
A recent case came before the courts in which the Royal Belgian Football Association (RBFA) claimed that a book cover photo infringed the image rights of the Belgian national football team. The courts confirmed that the two conditions under which images of public figures may be used without prior consent had been met. It thus remains to be seen whether the RBFA will be able to stop any further attempts to use the players' images.
The Brussels Court of Appeal recently dealt with an interesting trademark infringement case pertaining to the abstract colour mark blue owned by Belgian beer brewer Alken-Maes. Maes had sought injunctive relief for alleged infringement of its colour mark, which it claimed to be well known, by InBev Belgium, which is part of the world's largest brewing conglomerate.
EU Regulation 1383/2003 allows member states to use a simplified procedure to enable their customs authorities to destroy counterfeit goods without formal IP infringement proceedings. However, the regulation is unclear as to whether the rights holder must undertake any specific action to inform the declarant of its intention to use the simplified procedure. A Belgian court decision has provided welcome clarity on the matter.
The Arlon Court of First Instance recently ruled that Belgian law did not grant organisers of sporting events the exclusive right to use photos taken at such events. It is settled case law in Belgium that IP rights, insofar as they are an exception to the principle of freedom to do business, must be strictly interpreted.
A pharmaceutical company requested a preliminary injunction against a generic manufacturer based on one of its invalidated supplementary protection certificates. An appeal court granted the injunction, but the generic manufacturer appealed to the Supreme Court. The court's decision is notable for its distinction between the authority and the force of res judicata, and the implications of this distinction for rights holders.