ALTIUS updates

Parallel import of medicinal products
ALTIUS
  • Intellectual Property
  • Belgium
  • November 06 2017

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.

Administrator liability in bankruptcy framework
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • November 03 2017

Parliament recently voted into law the federal government's proposal to introduce a new chapter on insolvency into the Code of Economic Law. Among other things, the new chapter concerns the potential liability of former directors of a bankrupt company. Some of the new principles already partially existed in Belgian law, but have been amended by the new chapter, which also broadens certain concepts which will thus apply to a wider range of entities.

Reorganisation plan: position of secured creditors
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • July 21 2017

The Business Continuity Act aims to enable debtors in difficulty to continue their activities by restructuring their debts. One of the proceedings that the act introduced is the reorganisation of debt pursuant to a restructuring plan. The restructuring plan may consist of several measures, including the waiver of certain debts. However, none of these measures (with the exception of a temporary stay on the enforcement of claims) may be imposed on secured creditors, unless they expressly agree to it.

Changes to insolvency regime proposed
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • May 12 2017

The government recently undertook steps to modernise and broaden its insolvency legal framework and submitted a proposal to Parliament intended to introduce a new chapter to the Code of Economic Law. The proposal will update the Bankruptcy Act and the Business Continuity Act. The government proposal will be discussed in Parliament in the coming weeks and could be accepted before the summer recess.

Court issues decision on parallel importation of debranded Mitsubishi forklift trucks
ALTIUS
  • Intellectual Property
  • Belgium
  • April 10 2017

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.

Insolvency in franchising relationships
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • February 17 2017

Franchisees are often unable to fulfil their payment obligations. The special cooperative relationship between a franchisor and its franchisee usually leads to negotiations and contractual agreements between the parties regarding the repayment of accumulated debts. However, the franchisee may still become insolvent. A key question is whether showing leniency in the context of insolvency proceedings will be beneficial or detrimental to a franchisor.

Reorganisation proceedings: access and possibilities
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • December 02 2016

The Business Continuity Act of January 31 2009, amended in 2013, provides for specific (court-supervised) restructuring proceedings, during which the company (or debtor) is protected against its creditors' claims so that it can reorganise its business. For debtors, one of the act's major advantages is its 'open-gate' approach. In essence, this approach means that court protection is granted if the company's continuity is threatened and the debtor files a request in this regard.

Reservation of title: legal guidelines and practical tips
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • September 16 2016

Suppliers are often surprised by their customers' insolvency and only at that moment discover that the goods that they delivered are unpaid. Even when a reservation of title has been inserted into the contract, the repossession of goods can be difficult in practice. Measures that can help the recovery process include ensuring that a reservation of title clause is clearly drafted and that each single good is identifiable.

Broadening scope of insolvency legislation
ALTIUS
  • Insolvency & Restructuring
  • Belgium
  • July 01 2016

Historically, Belgian insolvency legislation has applied only to entities involved in commercial activities. However, recent jurisprudence and upcoming legislative changes will result in important amendments that are intended to broaden the scope of existing legislation. As a result, entities that are involved in commercial or entrepreneurial activity will be eligible to benefit from bankruptcy legislation.

Court rules on use of competitor's trademark as AdWord
ALTIUS
  • Intellectual Property
  • Belgium
  • May 02 2016

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.

Supreme Court defines online patent-infringing offer
ALTIUS
  • Intellectual Property
  • Belgium
  • April 04 2016

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.

Potpourri I: patents and suspensive effect of appeals
ALTIUS
  • Intellectual Property
  • Belgium
  • January 25 2016

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.

Uncertainty over protection of famous bag under copyright law
ALTIUS
  • Intellectual Property
  • Belgium
  • January 18 2016

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.

Court decides on protection afforded to greyscale trademark
ALTIUS
  • Intellectual Property
  • Belgium
  • July 13 2015

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.

An inappropriate parody
ALTIUS
  • Intellectual Property
  • Belgium
  • April 13 2015

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.

Change ahead for Belgian patent litigation
ALTIUS
  • Intellectual Property
  • Belgium
  • March 09 2015

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.

Brussels Commercial Court bares its teeth and protects shape of dog food
ALTIUS
  • Intellectual Property
  • Belgium
  • January 26 2015

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.

Parody versus moral integrity right: ECJ to the rescue?
ALTIUS
  • Intellectual Property
  • Belgium
  • October 27 2014

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.

Gucci's international GG marks revoked following 'harsh' decision
ALTIUS
  • Intellectual Property
  • Belgium
  • October 20 2014

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.

Saisie-contrefaçon: duty of full and accurate disclosure in ex parte phase
ALTIUS
  • Intellectual Property
  • Belgium
  • June 23 2014

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.

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