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Legal basis

In Belgium, the law relating to protection against unfair competition has its legal basis in the Law of 14 July 1991 (published in the Moniteur Belge of 29 August 1991) on trade practices and consumer information and protection.

Concepts of unfair and parasitic competition

Any act contrary to honest commercial practice whereby a seller damages or may damage the professional interests of one or more other sellers is prohibited.

In order for the service provider who has been imitated to be able to bring proceedings for unfair competition, he must be able to show that the imitator's behaviour is contrary to honest commercial practice.

In this respect, Belgian case law distinguishes two types of unlawful behaviour:

• servile or quasi-servile imitation, giving rise to the risk of confusion in the mind of the customer, which is commonly referred to as "classic unfair competition",
• parasitic imitation, which is imitation, even if not involving the risk of confusion, of a service embodying creative effort such that the imitator benefits improperly from the efforts thus made by others.

Substantive conditions

Apart from the act of imitation, the following conditions are necessary in order for the imitator's activity to be unlawful:

• the imitated service must have a degree of originality, in other words the imitated product must be an expression of a creative service,
• the imitator, by this imitation, must have profited improperly from the efforts of others.

This second condition represents the act contrary to honest commercial practice, in so far as it is not in accordance with such practice to derive profit from the creative commercial efforts made by others.

The action for cessation

Jurisdiction

The Law of 1991 lays down that the Presiding Judge of the Commercial Court shall establish the existence, and order the cessation, of an act, even if it is subject to criminal penalties, which constitutes a breach of the provisions of the present Law (Art. 95).

The Patents Law of 28 March, however, provides that any application citing patent infringement and an associated question of unfair competition shall be made exclusively before the District Court (Art. 73 (1)).

Sanctions

The only sanction available in an action for cessation of unfair and parasitic competition is that of obtaining, as its name suggests, the cessation of the acts alleged to constitute parasitic competition and, consequently, the withdrawal from the market of the unlawfully imitated products.

Publicity

The Court before which the action is brought may order that its judgement, or a summary of that judgement produced by the Court, be displayed, for a period to be determined by the Court, both inside and outside the offender's premises, and may order publication of the judgement of a summary thereof through newspapers or in any other manner, all at the offender's expense (Art. 99).

Conclusions

An action for cessation is often brought jointly with an action for infringement, and before the same Court.

It offers the possibility of providing an alternative legal basis for the application for an order that products be withdrawn from the market, in the event that the Court shall find that there is no infringement.

Recommendations in the event of proceedings against you for infringement or unfair competition

In the event of discovery proceedure at your research, storage or production premises, the notice of discovery proceedure will be served by bailiffs.

In general, the other persons present will be one or more experts appointed by the Court and, possibly, the other parties to the infringement proceedings, in other words the proprietor of the patent, his licensee or their representative (patent agents, counsel, etc.).

Art. 1484 of the Judicial Code lays down that these parties may be present if they are specifically so authorised by the Court of Seizures.

If this authorisation is not notified to you, and in order to avoid any industrial espionage, you may oppose the entry by these persons into your premises.

However, you may not oppose the entry of the bailiffs or of the sworn expert. The law provides that if the doors of the establishment or premises in which the seizure is to be carried out are closed or if there is a refusal to open them, the bailiff may have them opened, with the intervention, if necessary, of the Superintendent of Police or, if appropriate, of the Justice of the Peace or the Burgomaster.

However, we would advise you to ask the identities of the various persons present and to ask the various parties to wait until your patent attorney and/or your counsel arrives at the premises.

The seizure, carried out by the experts and/or the bailiffs, simply serves to establish the existence, nature and number of the allegedly infringing articles.

You may not oppose the expert's investigations for the purpose of discovering any evidence that the legislator has allowed the patentee to require in support of his future action.

Thus, the expert is authorised to take samples of chemical or pharmaceutical products with a view to lodging them with the Registry or having them analysed.

Similarly, you must not oppose his access to accountancy documents such as to prove and establish the scale of the infringement.

However, we advise you not to provide these documents to the experts or bailiffs except when they are explicitly requested.

Furthermore, you may not oppose the placement under seal by the experts and bailiffs of the counterfeit articles, and any apparatus intended to produce these counterfeit articles, or the taking of samples of such articles for analysis.

In the course of the seizure proceedings, you are not obliged to provide any assistance to the experts and bailiffs unless you are requested to do so by them.

If any errors are committed by the experts and the bailiffs during the seizure, it is highly advisable not to point this out.

At all times, we recommend that you adopt the attitude suggested by your patent attorney and/or your counsel.