ALTIUS is one of the largest Belgian independent law firms, consisting of approximatively 65 lawyers. Established in Brussels and Louvain-la-Neuve, we advise Belgian and international companies on the legal aspects of their transactions and disputes.Show more
Healthcare & Life Sciences
A legislative package aimed at fighting falsified medicines will enter into force in the European Union in early 2019. This EU legal framework was transposed into Belgian law through the Medicines Act and the Royal Decree concerning Medicines for Human and Veterinary Use. As a result, pharmaceutical companies will be required to affix a so-called 'anti-tampering device' on all prescription medicinal products to allow verification of whether the packaging has been tampered with.
Insolvency & Restructuring
In an insolvency situation, the fate of ongoing contracts is something to be discussed. Such contracts are often closely linked to the essence of a company's business. For example, for (commercial) leases, a lessor's bankruptcy or a tenant's judicial reorganisation will probably result in discussions about the agreement, its (forced) execution and rental payments. If a company's activities are based on patent or software licences, the effect on these agreements will also be of crucial importance.
The European Court of Justice appears likely to rule that the Belgian reorganisation framework infringes the EU Transfer of Undertakings Directive with regard to the transfer of personnel. If the option to transfer only a portion of staff is no longer available in Belgian reorganisation proceedings, companies will have no choice but to formally file for bankruptcy, which is exactly the issue that the legislature and the labour unions had hoped to avoid when introducing this mechanism into Belgian law.
The former Bankruptcy Statute of 1997 included a principle that a natural person could be discharged of their remaining and outstanding debts – a so-called 'waiver' – at the moment of a bankruptcy's closure. The discharge's beneficial effects were extended to the bankrupt person's spouse. However, for bankruptcies that have happened since 1 May 2018, and so fall under the new legal framework, this situation has changed.
The legislature recently took steps to improve the follow-up monitoring of companies in financial difficulty and strengthen the fight against inactive companies. To determine whether companies are in financial difficulty, the courts gather information from various (digital) sources. However, the focus remains on preventive mechanisms – namely, identifying companies in financial difficulty and following up with court action.
The Belgian insolvency law's scope was recently broadened. As of 1 May 2018, all entities that are involved in commercial or entrepreneurial activities can be declared bankrupt (or enter into court-supervised reorganisation proceedings). Discussion has started about whether company administrators can also be seen as being 'involved in an entrepreneurial activity' and thus declared bankrupt.
The digitisation of different insolvency proceedings (ie, bankruptcies, judicial reorganisations and company voluntary agreements) recently reached a new milestone. All new insolvency files must now be commenced through the Central Solvency Register (Regsol) and followed up on the same system. Regsol offers a number of new features, including the electronic storage of insolvency files and a new declaration of debt form.
If reorganisation proceedings are unsuccessful and lead to bankruptcy proceedings, creditors with new claims resulting from services performed during the reorganisation proceedings often find it difficult to receive payment of their privileged claims when they are in competition with a general pledge on the debtor's estate that is held by a bank. The Supreme Court's recent judgment in this regard will help such privileged creditors to receive payment from the bankrupt estate.
The legislature recently took steps to improve the follow-up monitoring of companies in financial difficulty and strengthen the fight against inactive companies. Companies that fail to pay their social security or value added tax debts, file their annual accounts or fulfil other administrative obligations on time will now appear on the radar of the Commercial Court's Investigative Services much earlier. The services' recently extended powers of action could lead to unfortunate surprises for some companies.
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.
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.
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.
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.
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.
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.
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.
Preliminary injunctions are rarely granted on an ex parte basis in Belgium and adversarial debates are considered a cornerstone of legal proceedings which can be deviated from only in cases of absolute necessity. However, ex parte interim measures have been granted in at least four patent disputes in Belgium in recent years, which helps to shed light on the circumstances under which patentees can consider them to be a measure of last resort to stop a threat of infringement.
On 30 July 2018 the Belgian legislature transposed the EU Trade Secrets Directive into domestic law via the Trade Secret Law. The Trade Secret Law is welcomed, as no general regulatory framework regarding trade secrets previously existed in Belgium. It remains to be seen how the law will be used and applied in practice, but it is an essential means in effectively appropriating, protecting and exploiting innovation by providing trade secret holders with the tools to protect valid trade secrets.
The long-awaited amendments to the Benelux Convention on Intellectual Property recently entered into force. The convention offers broader protection to reputed trademarks in opposition proceedings. In addition, an administrative procedure for invalidation and revocation before the Benelux Office for Intellectual Property (BOIP) is now available and the Benelux Court of Justice has become the sole jurisdiction for appeals against BOIP decisions.
In a high-profile trademark infringement case involving Moët Hennessey Champagne Services and a Belgian painter, the courts were asked to strike a balance between the right to property, including intellectual property, and artistic freedom of expression. The decision is expected to set an important precedent on how to strike a fair balance between freedom of speech and the protection of trademarks when these two concepts conflict.
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.
Embedding videos has become increasingly popular over the past few years, especially among users of social media networks. This raises the question of whether it is legal under copyright law to embed videos that contain copyright-protected material without the rights holder's consent. The Brussels Court of Appeal recently ruled on this question; however, certain related questions remain unanswered.
The Brussels Court of Appeal recently ruled that a parallel importer did not properly notify a pharmaceutical trademark holder when it provided a two-dimensional mock-up of the outer packaging, rather than an actual sample, of the repackaged pharmaceutical as it would be presented on sale. The decision provided much-needed clarity, as the first instance court had issued contradicting decisions on the matter.
In a criminal case involving Nintendo, a Belgian court examined for the first time the legal status of devices known as 'linkers', which circumvent technological protection measures. The court held that the sole function of linkers is to circumvent such measures - dismissing the defendants' argument that they were intended for other purposes - and that these devices therefore breach IP laws.
A recent decision of the Mons Court of Appeal confirmed that where no IP right protects a product or service, unfair competition law may not be used to fill the gap. Although the court found that in principle, an assortment of products may be freely copied in the absence of IP protection, the related circumstances of the offer can be prohibited if they are likely to create confusion for consumers.
The Commercial Court of Brussels has upheld a complaint by Belgian brewer Alken-Maes against the packaging chosen by rival brewer Anheuser-Busch InBev for its Jupiler Blue beer, finding that AB InBev had infringed Alken-Maes's abstract colour trademark. AB InBev was given one month to withdraw every can and bottle of Jupiler Blue from the Belgian market.
Responsible Young Drivers (RYD) is a road safety organisation and the owner of the trademark RESPONSIBLE YOUNG DRIVERS. Its former advertising agency used the term - replaced, after RYD's objection, with the name 'The Night Riders' Mob' - in a competition for marketing students. The Brussels Court of Appeal recently considered whether such use constituted trademark infringement.
A breeders' exemption essentially allows a breeder to use plant material from a protected variety for the purpose of breeding other varieties. French, Swiss and German patent laws now contain statutory exemptions, but these cover only the act of breeding, not subsequent commercialisation. The situation in Belgium is different and arguably makes a separate breeders' exemption unnecessary.
The Supreme Court has asserted the prima facie validity and enforceability of granted European patents which are subject to opposition proceedings before the European Patent Office. The decision highlights the need for alleged infringers to clear the way for their allegedly infringing product or process by seeking the invalidation of any relevant contested patent rights before the competent Belgian courts.
Belgian courts tend to provide protection to holders of duly registered colour trademarks. A recent decision of the Brussels Commercial Court has confirmed this trend, granting protection to the registered colour trademark for the champagne brand Veuve Cliquot Ponsardin.
A Belgian court has invalidated Lundbeck's supplementary protection certificate (SPC) for escitalopram, the 'S' enantiomer of its racemate citalopram. The court held that escalitopram is the same product as citalopram, and that the former's SPC did not comply with Articles 3(c) and (d) of EU Regulation 469/2009. The court held that it was in the interests of patients to declare the decision provisionally enforceable.
Parliament recently approved a new plant variety rights law which will substantially reinforce breeders' rights. Several concepts, including the term 'variety', have also been clarified, and infringement exemptions have been better defined, resulting in greater legal certainty for all players in the chain.
Colours are an attention-grabbing way to send a signal, and Belgian case law demonstrates that once a colour mark has been registered, it is a powerful tool. Infringements are often easily demonstrated on the grounds that a colour mark which has acquired distinctiveness through use tends to be regarded as having acquired a reputation.
A Belgian court recently annulled two DUFF BEER Community trademarks owned by Twentieth Century Fox. The court ruled that although the trademarks might have a reputation for (virtual) beer in the television series The Simpsons, they did not necessarily have a reputation for the real-world goods for which they were registered. However, owners of such trademarks may be able to rely on unfair competition law.
Advocate General Pedro Cruz Villalón recently issued his opinion on questions referred by the Brussels Court of Appeal in an illegal downloading case. Contrary to some media interpretations, it is wrong to claim that he considers the protection of privacy and personal data to take clear precedence over copyright. Rather, the opinion criticises the general nature of the measures being sought and the legal basis of the request.
The growing success of cookery books in Belgium has revived the issue of how to protect the intellectual property in recipes. Recent cases involving two of Belgium's finest culinary specialties have raised a number of questions for IP experts, not least how to protect both highly innovative recipes - for example, in the field of molecular gastronomy - and the free exchange of culinary ideas.
Two recent Court of Cassation decisions might suggest confusion between permissive and restrictive approaches to word marks that combine descriptive components. However, the same principle was applied: a combination of such components can clear the hurdles of non-descriptiveness and distinctiveness if the impression of the sum of the components differs from that of the descriptive components in themselves.
In Belgium, the transposition of the EU Enforcement Directive in 2007 broadened the scope of the cease and desist procedure to virtually all IP rights. In Community trademark matters, the Brussels Court of Commerce and the Court of Appeal have, on several occasions, awarded pan-European injunctive relief.
Illegal downloading is making headlines in Belgium. Two legislative proposals have been submitted to the Federal Parliament, while two cases between the country's main collecting society and two online service providers are pending before the courts. The questions referred to the European Court of Justice in these cases illustrate the complexity of IP rights protection on the Internet.
The new Market Practices and Consumer Protection Act simplifies the protection of appellations of origin and geographical indications in Belgium, bringing national legislation into line with EU law. As such, it reinforces the framework for appellations of origin and geographical indications and strengthens the positions of rights holders.
The Supreme Court has made the first-ever reference for a preliminary ruling to the Court of Justice of the European Union on the exhaustion of Community plant variety rights. It is seeking to establish how far third parties are bound by contractual restrictions in licensing agreements and whether a rights holder is bound by a licensee's actions that contradict the provisions of the licence agreement.
The transposition into Belgian law of the EU Enforcement Directive in 2007 gave Belgium an opportunity to review and harmonize the procedures for handling IP disputes. Two years after the legislation came into effect, the assessment of the reform is overwhelmingly positive.
All parties involved in the commercialization of plant material should implement measures to safeguard the legitimate interests of plant breeders. Supermarkets, garden centres, florists and almost all other wholesalers and retailers have a duty to respect plant variety rights, but intermediaries - including transport companies and auction houses - should be aware that rights holders can also take action against them.