Protection of IP Belgium

1. TRADE MARKS
1.1 INTRODUCTION
The Benelux countries have unified their national trade mark legislation by the introduction of the uniform Benelux trade mark law which came into effect on 1 January 1971. This law required only slight adaptation to be brought into conformity with Directive 89/104/EEC, in particular by amending the protocols of 2 December 1992 and 11 December 2001.

1.2 REGISTERED TRADE MARKS
The following are regarded as trade marks: denominations, drawings, prints, seals, letters, figures, product or packaging forms and any other graphic representation that can be used to distinguish a company’s products. The right to a Benelux trade mark is acquired by the registration of the mark. To be valid, a mark must meet certain criteria. It must be: - distinctive i.e. it must enable a company’s products or services to distinguished from those of another company; and - available ie it must not infringe any earlier right such as another trade mark, a commercial name or copyright work. Trade mark registrations last for an initial period of 10 years and can be renewed for periods of 10 years thereafter.

1.3 UNREGISTERED TRADE MARKS
An unregistered trade mark has no protection. A company name is only used to indicate a company and can, in theory, be freely acquired provided that it does not create confusion with an existing denomination or commercial name and that it has not been filed as a trade mark by another entity. This denomination is protected by the common law of Articles 1382 and 1383 of the Civil Code, the Act of 14 July 1991 on trade practices and the Act of 26 June 2003 relating to abusive domain name registrations.

2. PATENTS
2.1 INTRODUCTION
The main legislation in Belgium is the Act of 28 March 1984 on patents and its implementing decrees, amended in particular on 28 April 2005 with regard to the patentability of biotechnological inventions and the Act of 20 May 1975 on the protection of vegetal obtentions.
Protection of IP
Belgium
A patent enables its owner to prohibit third parties, during a certain period (a maximum of 6 years for a Belgian patent without a research report and a maximum of twenty years for a Belgian patent with a research report) from manufacturing, using or marketing the invention without their permission.
A patent may only be granted if an invention is:
- new in that it has not already been published or publicly used. An invention is deemed to be new if it is not included in the state of the art;
- not evident i.e. not obvious to a person skilled in the art; and
- suitable for industrial application.
The following are not regarded as inventions:
- scientific discoveries and theories and mathematical methods;
- aesthetic creations;
- plans, principles and methods in the exercise of mental activities in relation to economic activities including computer programmes; and
- the presentation of information.

2.2 DISTANCE SELLING AND E-COMMERCE
The Act of 14 July 1991 on trade practices, consumer information and protection regulates remote contracts.
The Act of 11 March 2003 (on certain legal aspects of information society services) governs e-commerce. It defines the fundamental concepts underlying electronic commerce, sets out obligations for information and transparency (in particular with regard to consumers), regulates advertising on the networks (for example as regards unsolicited advertising sent by e-mail), raises obstacles to entering into contracts electronically and determines the responsibility and obligations of intermediaries (website hosts, access suppliers).
The Act of 17 July 2000 relating to transactions carried out by means of instruments for transferring electronic funds also contributes to the advent of the information society, in particular of e-commerce.
The Act of 12 May 2003 concerning the legal protection of: (a) conditional access services; and (b) conditional access services relating to information society services, seeks to provide adequate legal protection against the marketing of illicit devices which could be used to circumvent any technical measure taken to protect the remuneration of a protected information society service.

2.3 DRAWING AND MODEL RIGHTS (IE REGISTERED DESIGNS)
Uniform Benelux law concerning drawings or models came into effect on 1 January 1975.
The appearance of a product or of part of a product is considered to be a drawing or a model. Features such as lines, contours, colours, shape, texture or materials of the product itself or of its ornamentation can be protected. A product can be any industrial or artistic item.
The exclusive Benelux right to a drawing or model is acquired by registration. The registration is for an initial 5 year period and can be renewed for successive 5 year periods up to a maximum of twenty-five years.
To be protected, the drawing or model must:
- be new as at the filing date i.e. no identical drawing or model can have been revealed to the public; and
- have individual character i.e. the overall impression that the drawing or model produces on the user must differ from that which is produced on such a user by any drawing or model that has been revealed to the public before the filing date.

2.4 CONFIDENTIALITY AND KNOW-HOW
Know-how relates to information which has a value in relation to the manufacturing or development process of a product or service. It can relate to an invention, area of expertise, information enabling a technique or a product to be improved or the implementation of an invention. Know-how can be protected by secrecy, which can be ensured by means of confidentiality agreements.
It should be noted that labour law prohibits employees from revealing the “business or trade secrets” of which they would become aware in the exercise of their professional activities.

2.5 COPYRIGHT
The law relating to copyright was amended by the Act of 22 May 2005 which implemented the European Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and neighbouring rights in the information society.
A work is protected by copyright if it is original and has been recorded in a document or otherwise. Protection by copyright is automatic and does not depend on meeting certain criteria/formalities.
The author has the exploitation monopoly in relation to his rights. He can authorise or prohibit exploitation, except in exceptional cases. Copyright lasts for 70 years from the death of the author or of the last surviving co-author.

2.6 DESIGN RIGHT
An unregistered design right benefits from copyright protection providing it meets the conditions thereof.

3. PROTECTION OF IP RIGHTS
3.1 REGISTRARS
3.1.1 Patents
The IPO at the Ministry of Economic Affairs has jurisdiction to investigate Belgian patent applications.
Any person or entity, regardless of nationality, can apply for a Belgian or European patent. However, only persons with a legal entity having Belgian nationality or a place of residence or establishment in Belgium, can file an international patent application (IPA) with the Intellectual Property Office (IPO). At the time of the filing a patent application, a filing fee will have to be paid as well as other possible taxes (in respect of the novelty search, for example). In order to maintain a patent, fees will be payable from the beginning of the third year from the application filing date.

3.1.2 Trade Marks
The Benelux Trade Mark Office deals with registrations.
Applications must be made to the Benelux Trade Mark Office. The application file must contain:
- a filing form;
- a list of the products or services to which the application refers;
- a reproduction of the trade mark; and
- a search of the Trade Mark Register, if one had been carried out by the Benelux Trade Mark Office on the applicant’s request.

3.1.3 Registered Designs
The Benelux Drawing and Model Office deals with registration applications.
To file a drawing or a model, one has to complete the required forms and pay the prescribed taxes. The filing must set out the specific characteristics of the drawing or model.
The Benelux law in respect of models does not require an anteriority search in relation to substance and the Benelux Office only checks whether the filing satisfies the prescribed formalities.
Once all the conditions are met, the filing is recorded in the Benelux register and a registration certificate is sent to the applicant. The drawing or model is made public by its publication in the Office’s official monthly bulletin.

3.2 COURTS
Depending on the intellectual property right in issue and on the objective (e.g. suspension, damages, transfer of profits, publication of the judgement) either the Commercial Courts, ruling “as in summary procedure”, or the Court of First Instance will be competent rationae materiae to hear and determine any litigation in these matters.