Important Developments in IP Legislation - Belgium
1. Transposition of the EC Directive 2004/48:
The transposition has given rise to a fairly extensive review of previous procedure known as 'saisie-description' as also the competences of the courts, both material and territorial in IP matters are modified. The main aspects of the reforms are:
- Seizure relating to counterfeiting matters:
The procedure which is now called 'saisie en matiere de contrefacon' (seizure pertaining to counterfeiting) has been extended to all intellectual property rights in Belgium. Under this procedure, plaintiff can obtain an authorization to have a descriptive report to establish counterfeiting, merely on the ground of suspectible evidence of infringement of his right proving that he has a registered title. Previously, the plaintiff was required to file a suit on merits against the counterfeiter within a stipulated time failing which his suit would lose its value. However, under the new rule, as a complement to descriptive report, the plaintiff can obtain a court order prohibiting the party in question from getting rid of objects that are supposed to be counterfeits even after expert has lodged his report. However, he must establish with proof that the counterfeiting cannot be reasonably challenged even if the judge's decision is not a judgment on merits. In addition, the judge must verify whether the general interest of the party amounts to reasonably justify the seizure measures. These two restrictions under the new procedure correspond to case law of the Cour de cassation.
Another change results from the transposition is the principle of compensating the party subjected to descriptive measures or to seizure when these measures are rescinded. Since the scope of this change is not clear, a distinction seems to be needed between descriptive measures and the seizure itself.
- Competences of the courts:
Commercial courts now are competent to deal with patents for inventions, supp0lementary protection certificates, new plant varieties, topographies of semiconductor products, Community and Benelux trade marks/drawings and models, sitting in the same towns as the five courts of appeal. However, for cases involving copyright, neighbouring rights, the right of the producer of databases and legal protection of technical measures, these fall under the competence of either the Court of First Instance or Commercial Court depending on whether the parties are tradesmen or private parties. From the territorial point of view, Community trademarks and Community drawings and models fall under the exclusive jurisdiction of the Commercial Court of Brussels.
- Petitions for cease orders & interim measures:
The law expressly authorizes the defendant to file a petition to counterclaim for nullity of the right invoked, with consequences not only between the parties but also with regard to third parties. Since these types of procedures are shorter, the holder of an intellectual property right had better be prudent. However, in interim proceedings, a counterclaim for nullity of the right is not possible.
2. Copyright protection in the Internet environment:
- The Court of First Instance, Brussels has issued, under the copyright law and in accordance with European directives, an injunction to intermediaries (ISP) from further providing services when the latter are used for infringing activities (peer to peet) without debates on a liability of these intermediaries for such activities. In order to comply with the injunction, service provider is required to submit descriptive measures taken in this respect within a period of six months.
3. Tax - Patent and SPC royalties deduction:
Under the Directive, a new tax measures has been introduced relating to a patent royalties deduction with the aim to encourage companies to invest more in research and development. This deduction will be applicable to patents or supplementary protection certificates (SPC) owned by the company in Belgium or abroad in favour of revenue. This measure relates only to patent and SPC incomes, thereby excluding other IP rights or assets as know-how, copyright, trademarks, model, design, formula or secret process, experimental information in commercial and or scientific topic.
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