This section provides an outline regarding intellectual property protection law in Belgium.

Protection relating to intellectual property rights extends to trademarks, copyright, patents, software, designs and models and database rights. Although trade secrets, confidential information and special know-how are not considered to be intellectual property as such, a certain amount of protection extends to these as well.

Trademarks

What are trademark rights and how are they obtained?

Trademarks are defined as any name, drawing, symbol, stamp, letter, figure, shape of products or packaging and any other sign or any combination of these adopted and used by a manufacturer or merchant to identify and distinguish his goods from those manufactured or sold by others.

Trademarks may cover products or services. Most trademarks are individual, but labels (or collective trademarks) are regulated too. Trademark rights in the Benelux countries are generally conferred by the first registration and not by the first use of the trademark. However, in order to avoid abuses several exceptions are stipulated which grant a priority right to the first user.

The application for registration is submitted to either the Belgian administration or to the Benelux Office for Intellectual Property at The Hague. The authorities who receive the application will, upon the explicit request of the applicant, conduct an anteriority search that will enable the applicant to determine whether the proposed trademark is or is not in conflict with an existing trademark.

As soon as the formalities are fulfilled, the authorities will publish the application. Within 2 months, starting from the first day of the month following the publication of the application, the owners of earlier trademarks can object (under specific conditions) to the registration of a new trademark by filing an opposition.

Any trademark protection sought in Belgium will apply to all three Benelux countries: the Netherlands, Belgium and Luxembourg.

The cost of Benelux protection (in maximum 3 classes) amounts to about 600 EUR (including agent fees and official taxes, excluding VAT).

Apart from a Benelux Trademark, there is also the possibility of obtaining a Community Trademark that grants protection in all 25 Member States of the European Union. A Community Trademark application must be filed with, and is granted by, the Office for Harmonization in the Internal Market (OHIM) in Alicante.

The cost of protection across the entire European Union in maximum 3 classes amounts to some 2,880 EUR (including agent fees and official taxes, excluding VAT), provided no opposition to the application is filed and the administration of the OHIM has no observations.

Belgian National Office:
Ministry of Economic Affairs (PIIE)
North Gate III
Koning Albert II-laan 16
1000 Brussels, Belgium
Tel: +32 2 206 48 18
Fax: +32 2 206 57 50

The Benelux Office for Intellectual Property
Bordewijklaan 15
NL-2591 XR Den Haag, The Netherlands
Tel: +31 70 349 11 11
Fax: + 31 70 347 57 08
Website: http://www.bmb-bbm.org

Office for Harmonization in the Internal Market
Avenida de Europa, 4
E-03008 Alicante, Spain
Tel: + 34 96 513 9100
Fax: + 34 96 513 1344
Website: http://oami.europa.eu/en/dialog.htm

What is the nature and duration of the protection provided to a trademark?

Once the registration procedure is completed, the holder is granted protection. This protection lasts for ten years and can be renewed without limitation. Loss of protection can occur if the genuine use of the trademark has been suspended for an uninterrupted period of five years. With limited exceptions, the trademark may not be modified after it has been registered or at the time of renewal.

A holder of a trademark can oppose its unlicensed use (i.e. if the distinctive or advertising function of the trademark is under attack, which generally occurs when the trademark or a similar sign is used abusively by another business in respect of identical or substantially similar products or services). The holder can go to court to obtain an injunction against its use and can be awarded monetary damages or have fines imposed.

Copyright

What is copyright?

Copyright (or authors' rights) protects "artistic and literary works" (that is to say the original expression or presentation of an idea). Copyright protection in Belgium exists from the moment that the original created expression or presentation is produced, without any registration being required. Copyright can only be created by natural persons. However, copyright, with the exception of the moral rights it includes, is freely transferable to corporate entities. In a situation where there is more than one creator of a work, each creator can separately exploit his or her own contribution to the work, provided such exploitation does not compromise the exploitation of the common work. Alternatively, the better solution is that all of the creators settle exercise of their rights contractually. However, even if it is not possible to split the contributions and the authors did not enter into an agreement, each creator is entitled:

• To pursue (in his or her own name and without any intervention of the other creators) any infringement upon the copyright;
• To demand compensation for his or her part;
• Where the creator of the work is unknown, the editor holds the rights until authorship is determined.

What type of protection is granted to the author of a copyright?

Copyright is valid for up to 70 years after the death of the author. In cases of multiple authorship, this period is calculated from the time of death of the last survivor. Where the author is unknown, the original publication date is used. Belgian copyright law makes certain distinctions in respect of the legal protection of copyright. Pecuniary rights (i.e. the right to control whether and how the work will be reproduced and the right to prevent the work from being made available to the public) are typically associated with property rights and may be transferred or licensed. In turn, moral rights (i.e. the right to have the authorship known, to decide when the work will be disclosed and to oppose any modification of the work) are included in the copyright definition as artistic integrity. In principle, moral rights as opposed to pecuniary rights are inalienable. Copyright protection mainly includes:

• The right to control the method of reproduction and the method of communication of the work;
• The right to have the authorship known;
• The right to decide when the work will be disclosed and
• The right to oppose any modification of the work.

Patents

How are patents protected?

Patent protection is available to inventions which are new, which involve an inventive step and which are used for industrial applications. The Belgian Patent Act clearly states that inventions are patentable even if they concern a product consisting of or containing biological material (i.e. any material containing genetic information and capable of reproducing itself or being reproduced in a biological system) or a process by means of which biological material is produced, processed or used.

To qualify as an invention, an item may not belong to the current status of technology. Patents can be obtained for a new product, a new process, a new application of known means or a new combination of known means. Applications for a Belgian patent may be filed by the inventor or his assignee (such as his employer). The patent application is filed with the Ministry of Economic Affairs. The above-mentioned application is submitted on a form provided by the National Patent Office. The filing procedure involves the submission of technical drawings and specifications that must be sufficiently detailed to allow an individual, who possesses minimum qualifications in the relevant field, to create and assemble the device without too many problems. Patent searches are not required. However, failure to have a search conducted will reduce the duration of the protection.

Patent protection lasts for 20 years when the patent is searched and 6 years when no search is undertaken. To be granted international protection, a search is required. Once a patent is registered, the holder must pay annual taxes on the patent that accrue from the third year after the granting of the patent. The tax on a Belgian patent starts at 30 EUR for the third year and amounts to 475 EUR in the 20th and final year. Patent protection includes the exclusive right to exploit the invention and to grant licenses or to assign the patent. However, there are several exceptions relating to patent protection. Where the holder fails to make the technology available to the public, protection is not granted.

Unlike trademarks and designs, there is no Community Patent. However, on the basis of the European Patent Treaty, there is a possibility to obtain a bundle of national patents through one centralized procedure.

Software

How is software protected?

Within the Member States of the EU, computer programs may be protected by copyright and by patent, provided, of course, that the protection conditions of both protection means are met.

• Copyright protection applies to the expression in any form (the source or object code) of a computer program (i.e. the software as such), its interfaces and the preparatory design material. As a general principle of copyright law, the ideas and principles that underlie any element of a computer program, including those that underlie its interfaces, are not protected by copyright. The computer program must be original in the sense that it is the author's own intellectual creation. The copyright protection of a computer program that meets the aforementioned protection conditions is not subject to any formalities. The owner of the copyright of a computer program is the natural person (or group of natural persons) who created the software. However, it is important to note that under Belgian law the employer has been designated as the copyright holder with respect to computer programs made by one or more employees in the exercise of their tasks or following instructions given by the employer. If the software is developed by independent contractors, a transfer of the intellectual property rights to that software will have to be provided for contractually, if the company having ordered the computer program wishes to acquire copyright title to the given software. To avoid controversy, a clear contractual agreement is always advisable, even in the employer/employee relationship. With respect to the duration of copyright protection, the general rule applies. (See also "Copyright" above).
• In principle, computer programs as such (and methods of doing business) are excluded from patentability in Europe (as opposed to the USA and Japan). The European Patent Office has accepted that a computer program will not be excluded from patentability under the European Patent Convention if, when it is run on a computer, it produces a further technical effect that goes beyond the 'normal' physical interactions between the program (software) and the computer (hardware). Merely running software is not sufficient. There must be a technical result or effect (i.e. a solution to a technical problem). E.g. production process control software could be patentable if the result is a change in the production process that enhances production capacity. A proposal for a European directive on the patentability of computer-implemented inventions was published on June 25 2002 but has still not been approved by both the European Council and the European Parliament. In order to be patentable, the computer program must in any case meet the conditions that apply for all types of inventions (See also "Patents" above).

Designs and Models

How are designs and models protected?

As in the case of trademarks, there is a Benelux system that co-exists with a European Community system.

The Benelux law involves the same criteria for validity and infringement and the same lifetime as those for Registered Community Designs.

Under those rules, protection is granted to the appearance of the whole or a part of a product resulting from the features, particularly the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation.

In order to be protected, the design must be new and have an individual character. A design is considered new if no identical sign has been made available to the public before the date of application for registration. A design has an individual character if the overall impression it produces on informed users differs from the overall impression produced on such users by another design that has been previously made available to the public.

No protection is granted to the features of appearance of a product that are solely dictated by its technical function, or to the features of appearance of a product that must necessarily be reproduced in their exact form in order to permit the product, in which the design is incorporated (or to which it is applied to be mechanically connected to, or placed in, around, or against another product), so that either product may perform its function.

Benelux designs and models must be registered in order to be protected. Community models do not necessarily have to be registered, but there are two major differences between a Registered and an Unregistered Community design. The first difference is the duration of protection: an Unregistered Community Design is granted protection for three years, whereas Benelux models and a Registered Community Design are granted protection for a term of five years, renewable up to a maximum of 25 years.

The second difference is that the Registered Community Design will protect the owner against copying, as well as against the independent development of an identical or similar design, whereas the Unregistered Community Design will only protect the owner against the copying of his design. It is possible to combine copyright protection with the protection granted by the Laws on Designs and Models. Costs for registering a Benelux Design or Model amount to some 400 EUR (including agent fees and official taxes, excluding VAT). Costs for the registration of a Community Design amount to some 730 EUR (including agent fees and official taxes, excluding VAT).

Database Protection

What is a database?

A database is a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

How are databases protected?

Within the EU, double protection is possible, provided of course, that the protection conditions are met for each protection regulation.

• In EU Member States, databases that, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation are protected as such by copyright (see above in the section concerning copyright). To be protected under copyright regulations the selection and/or the arrangement of the contents must show a certain originality (there is no protection of the selection and/ or the arrangement that is logical and therefore the obvious choice). The owner of the copyright relating to a database is the natural person, or group of natural persons, who created the database. However, it is important to note that where the legislation of the EU Member States permits, another legal person may be designated as the database right holder. Under Belgian law, the employer has been designated as the database right holder with respect to databases that are made in the non-cultural sector by one, or more, employees during the exercise of their work or following instructions given by the employer.
• All of the EU Member States provide rights for the maker of a database, which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents, to prevent extraction and/or re-utilization of the whole, or of a substantial part (evaluated qualitatively and/or quantitatively), of the contents of that database. This 'sui generis' right applies irrespective of the eligibility of the database (structure) for protection by copyright or by other rights. Moreover, it applies irrespective of eligibility of the contents (e.g. pictures) of that database, for protection by copyright or by other rights. The proprietor of the 'sui generis' right is the maker of a database (i.e. the person who takes the initiative and the risk of investing). This excludes employees and subcontractors as holders of the given right. No formalities are required for a database to become eligible for the given protection. With respect to the duration of the 'sui generis' protection, the right runs from the date of completion of the making of the database and expires 15 years from January 1 of the year following the date of completion. Any substantial change (evaluated qualitatively or quantitatively) to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations which would result in the database being considered a substantial new investment (again evaluated qualitatively or quantitatively), shall qualify the database resulting from that investment for its own 15-year term of protection. The proprietor of the 'sui generis' right can therefore organize some kind of eternal protection for the database.

Trade Secrets, Confidential Information and Special Know-how

How are trade secrets, confidential information and special know-how protected?

Generally speaking, trade secrets, confidential information and special know-how are not considered intellectual property. However, they are granted some protection. A party seeking to protect such information must look at other areas of legislation: contract and labor law, fair trade practices legislation and criminal law. The protection available to the holder of such information is determined by the nature of the infringement. An employee who violates the obligation of confidentiality, included in labor law, risks immediate dismissal, paying damages to his employer and, if it involves fraud, criminal prosecution. When the beneficiary of the know-how is a third party, a disclosure of the know-how can be avoided with a confidentiality agreement. If there is no contractual provision to protect the rights, the damaged party can seek remedy under either the Fair Trade Practices Act or the Civil Code. The harmful activity can be stopped by court order and/or monetary damages can be awarded.

Enforcement of intellectual property richts in Belgium

Above, we have commented on the various types of intellectual property rights, how these rights are obtained and what protection is granted.

Another question, however, is how these rights can be enforced against an (alleged) infringer in Belgium?

The various Belgian Intellectual Property Laws, the International Treaties, valid in Belgium, and the Belgian Code of Civil Procedure, all contain provisions allowing the proprietor of an intellectual property right to request the Belgian Court to grant various enforcement measures.

Examples are:

• Measures relating to the gathering and protection of evidence (such as the unilateral appointment by the Court of an expert with a mission to ((amongst others)) describe the alleged infringing goods);
• Provisional and precautionary measures (such as a Court order to provisionally stop the commercialization of the alleged infringing goods, under a penalty);
• Corrective measures (such as a recall from the channels of commerce);
• Damages.
  

Apart from those (civil) measures, the Belgian laws also provide for penal sanctions (fines and even imprisonment) for certain specific infringements (e.g. malicious or fraudulent copyright infringement).