Procedure
Belgium
General infringement proceedings
Types of infringement proceedings:
Main proceedings: Main proceedings refer to proceedings which lead to a final decision on the merits of the case. These proceedings can be initiated after preliminary injunction (PI) proceedings or directly, as PI proceedings are not compulsory. There are two types of main proceedings in Belgium, normal and accelerated proceedings:
- Accelerated proceedings (action en cessation/staking procedure) follow the procedural rules of PI proceedings with the exception that there is no urgency requirement. The trade mark owner can obtain an injunction order on the merits, ordering the infringer to cease all infringing acts, ie a final cease and desist order from a court, including the recall and destruction of all infringing goods. No damages can, however, be granted. This is a very commonly used procedure for trade mark infringement disputes in Belgium.
- Normal proceedings follow the procedural rules of all normal proceedings. The trade mark owner can obtain an injunction on the merits as well as damages.
Preliminary injunction proceedings: In Belgium, injunctions are usually obtained through accelerated inter partes proceedings as described above (meaning inter partes PI proceedings are less often used). But, in cases of extreme urgency or extreme necessity, the trade mark owner can initiate ex parte PI proceedings. The threshold for ex parte proceedings is quite high and they are therefore used only in exceptional circumstances. Given the possibility of obtaining a final injunction on the merits through accelerated proceedings (without the urgency requirement), PI proceedings are less common in Belgium than in other jurisdictions. PI proceedings are still helpful as, in practice, they offer a more expedited process than accelerated proceedings on the merits for obtaining interim relief to prevent imminent or ongoing infringement.
Procedure and appeals
- Warning letter: Before initiating legal action, it's common practice for trade mark owners to send a warning letter to the alleged infringer, demanding the cessation of infringing activities. While not mandatory, sending a warning letter serves to put the alleged infringer on notice and provides an opportunity for resolving the dispute amicably before resorting to litigation. However, failure to send a warning letter does not preclude the initiation of legal proceedings.
- First instance: In Belgium, trade mark infringement cases are exclusively heard in the Commercial Courts (Tribunal de l’Entreprise/Ondernemingsrechtbank). More particularly, for infringements of Benelux trade marks, they are heard in one of the Commercial Courts established at the seat of a Court of Appeal (ie Brussels, Antwerp, Ghent, Mons and Liège), and for infringements of EU trade marks, they are heard exclusively in the Commercial Courts of Brussels. Accelerated proceedings and PI proceedings are brought before the president of these courts.
- Court of Appeal: Appeals from decisions rendered in first instance proceedings are heard by the Court of Appeal (Cour d'Appel/Hof van Beroep) in the judicial district where the Commercial Court is located. The Court of Appeal has jurisdiction to review decisions on both factual and legal grounds. As a rule, the first instance decision must be appealed within one month of its service.
Means of proof and burden of proof
- In trade mark infringement proceedings in Belgium, parties are required to submit evidence to support their claims or defences. This evidence may include documentation, witness testimony, expert reports, and any other relevant materials.
- The burden of proof typically rests with the claimant, who must establish the elements of trade mark infringement by providing evidence to support their allegations. This evidence may include documents, witness testimony, expert reports, market surveys, and any other relevant information that helps substantiate the claim.
- In main proceedings, all relevant facts must be fully proven to the satisfaction of the court. In PI proceedings, a less strict standard of proof applies. Here, prima facie evidence is sufficient, ie the court merely has to consider the existence of the fact to be predominantly probable. The practical differences, however, are not significant.
(No) discovery
- Belgium does not have a formal discovery process where parties can request the disclosure of specific documents or information from the opposing party. Instead, each party is responsible for gathering and presenting evidence to support their case. If a party is aware of a document relevant to the case that it knows is held by the other party, it may ask the court to order the latter to produce that document.
- Saisie procedures: Before initiating proceedings, a trade mark holder can initiate ex parte saisie proceedings in order to obtain more evidence on the alleged infringement and seize any allegedly infringing goods present during the seizure (saisie-contrefaçon/beslag inzake namaak). Within the context of these proceedings, the trade mark owner can not only obtain description measures (the appointment of an expert who will draft a report relating to the alleged trade mark infringement), but also actual seizure measures (the seizure of infringing goods found during the proceedings).
Time to judgment
- An ex parte preliminary injunction can be granted relatively quickly, often within a matter of 24 to 48 hours of application. An inter partes pI can be granted within one to six months of application, depending on the urgency of the situation and the court's schedule.
- For main proceedings, the timeline for obtaining a judgment can vary significantly depending on the complexity of the case, the court's schedule, and other factors. Generally, it will take six to nine months in the context of accelerated proceedings, and 12 to 15 months in the context of normal proceedings, for a final judgment to be rendered at first instance.
Claiming legal costs and securities
In Belgium, every final decision, even if issued of the court’s own motion, must include an order that the unsuccessful party pay the legal costs of the successful party.
The legal costs include a procedural indemnity which is a flat-rate reimbursement of the attorneys’ fees, with basic, minimum, and maximum amounts. The basic amount is commonly used in trade mark disputes. The maximum amount can also be claimed in view of the complexity of the case.
- For actions relating to claims of which the subject can be evaluated in monetary terms (eg damages claims), the basic amount ranges from EUR225 to EUR22,500 and the maximum amount from EUR450 to EUR45,000.
- For actions in which the object cannot be evaluated in monetary terms (such as PI proceedings and accelerated proceedings), the basic amount of the procedural indemnity is of EUR1,800 and the maximum amount is EUR15,000.
If the successful party is the claimant, the legal costs to be paid by the defendant also include the costs linked to the initiation of the proceedings (eg bailiff costs, court fees, etc).