Intellectual Property, Belgium updates

Parallel import of medicinal products
ALTIUS
  • 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.

Court issues decision on parallel importation of debranded Mitsubishi forklift trucks
ALTIUS
  • 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.

Court rules on use of competitor's trademark as AdWord
ALTIUS
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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.

Supreme Court ruling on ISP blocking order: an effective solution to online piracy?
ALTIUS
  • Belgium
  • April 22 2014

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.

Retroactive royalty reimbursement: a serious concern for licensors
ALTIUS
  • Belgium
  • March 31 2014

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.

Belgium national football team denied protection of image rights
ALTIUS
  • Belgium
  • February 24 2014

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.

Brussels Court of Appeal decides on Belgian beer battle
ALTIUS
  • Belgium
  • December 16 2013

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.

When can silence be taken as agreement to destruction of counterfeit goods?
ALTIUS
  • Belgium
  • November 25 2013

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.

Court finds no sui generis IP rights for sporting event organisers
ALTIUS
  • Belgium
  • October 21 2013

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.

Invalidated SPC retains prima facie validity in preliminary injunction proceedings
ALTIUS
  • Belgium
  • September 16 2013

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.

Current search