Preliminary injunctions
Belgium
Preliminary injunctions (PIs) are usually obtained through accelerated inter partes proceedings (as opposed to inter partes PI proceedings themselves). But, in cases of extreme urgency or extreme necessity, a trade mark owner can initiate ex parte proceedings (provided all conditions are satisfied).
Overview
The conditions to obtain a PI (whether on an inter partes or ex parte basis) are:
- A prima facie valid trade mark is invoked. As a rule, the validity of a registered trade mark is presumed but the defendants may raise invalidity arguments.
- There are some indications of an (imminent) trade mark infringement.
- The balance of interest is in favour of the trade mark holder.
- For ex parte PIs, there is urgency (ie immediate measures must be taken to avoid irreparable harm to the trade mark holder), or extreme urgency.
In Belgium, a trade mark holder can (in the context of PI proceedings) obtain an order enjoining the alleged infringer from commercialising allegedly infringing goods pending a decision on the merits, usually subject to a civil penalty.
Urgency
- Urgency is a key requirement for obtaining a PI in Belgium. The applicant must demonstrate that immediate action is necessary to prevent irreparable harm or damage that cannot be adequately compensated through monetary compensation alone. Urgency is often assessed based on the immediacy of the threat posed by the alleged infringement. This is a largely factual assessment and the behaviour of the claimant is taken into account.
- When applied to trade mark cases, urgency is justified by the fear of serious economic and financial harm resulting from a possible loss of strength of the trade mark, leading to a loss of reputation and a threat to the investment made to create that reputation.
Irreparable harm
- The concept of irreparable harm refers to the type of harm that cannot be adequately compensated through monetary damages or cannot be effectively remedied by the final judgment in the main proceedings. As described above, in trade mark infringement cases, irreparable harm may include damage to the reputation of the trade mark, loss of market share, or other intangible losses that cannot be fully quantified. It is generally accepted that a risk of infringement constitutes such irreparable harm.
Urgency
- Urgency is a key requirement for obtaining a PI in Belgium. The applicant must demonstrate that immediate action is necessary to prevent irreparable harm or damage that cannot be adequately compensated through monetary compensation alone. Urgency is often assessed based on the immediacy of the threat posed by the alleged infringement. This is a largely factual assessment and the behaviour of the claimant is taken into account.
- When applied to trade mark cases, urgency is justified by the fear of serious economic and financial harm resulting from a possible loss of strength of the trade mark, leading to a loss of reputation and a threat to the investment made to create that reputation.
Irreparable harm
- The concept of irreparable harm refers to the type of harm that cannot be adequately compensated through monetary damages or cannot be effectively remedied by the final judgment in the main proceedings. As described above, in trade mark infringement cases, irreparable harm may include damage to the reputation of the trade mark, loss of market share, or other intangible losses that cannot be fully quantified. It is generally accepted that a risk of infringement constitutes such irreparable harm.
Remedies
- PIs are limited to specific types of claims, primarily those seeking injunctive relief. Claims related to damages, for instance, fall outside the scope of PIs. Main proceedings do not need to be already pending for a PI to be applied for or issued; they can be initiated simultaneously or at another time, at the latest within one month from the order granting the PI, unless decided otherwise by the judge.
Evidence and level of proof
- In PI proceedings, the level of proof required is typically lower than in main proceedings. The applicant must present prima facie evidence supporting their claim of infringement and demonstrating the urgency and irreparable harm necessitating interim relief. They do not require the same level of proof as main proceedings, where judges need to be convinced beyond a reasonable doubt. However, a full examination of the evidence will occur during the subsequent main proceedings.
Ex parte injunctions
- Ex parte injunctions, where the court grants relief without hearing from the opposing party, are available in Belgium under certain circumstances. Typically, ex parte injunctions are granted in cases of extreme urgency or where there is a risk that giving notice to the opposing party would undermine the effectiveness of the injunction.
- If a trade mark owner wishes to obtain interim measures on an ex parte basis, in addition to the above requirements, then they should also demonstrate that there is so-called ‘absolute necessity’. This implies that the requested measures are so urgent or of such a nature that the trade mark owner cannot adequately protect its rights via adversarial PI proceedings, even with a reduction of the time-limit to summon.
- Ex parte injunctions must be requested via an application filed with the clerk’s office.
- Usually, ex parte injunctions are granted under the condition that inter partes proceedings are initiated within a certain period.
Serving and enforcing the injunction
- Once granted, the PI must be served on the alleged infringer in accordance with Belgian procedural rules. The injunction becomes enforceable once served, and failure to comply with the injunction may result in enforcement measures, including penalties for non-compliance, provided that such penalties have been requested and awarded by the judge in the order.
Appeal opportunities
- Decisions on PIs in Belgium are subject to appeal. Parties dissatisfied with the decision of the court may appeal to the Court of Appeal in the same timeframe as for a normal appeal in main proceedings, which is, as a rule, one month following the decision. There is nevertheless a difference as the time it takes for a court hearing for a PI will be extremely short compared to main proceedings.
Serving and enforcing the injunction
- Once granted, the PI must be served on the alleged infringer in accordance with Belgian procedural rules. The injunction becomes enforceable once served, and failure to comply with the injunction may result in enforcement measures, including penalties for non-compliance, provided that such penalties have been requested and awarded by the judge in the order.
Appeal opportunities
- Decisions on PIs in Belgium are subject to appeal. Parties dissatisfied with the decision of the court may appeal to the Court of Appeal in the same timeframe as for a normal appeal in main proceedings, which is, as a rule, one month following the decision. There is nevertheless a difference as the time it takes for a court hearing for a PI will be extremely short compared to main proceedings.