Belgium continues its fight against counterfeiting

You may recall that on 15 May 2007, Belgium passed an Act sanctioning counterfeiting and piracy of intellectual property rights (the Act). Belgium, criticized at that time for, amongst other things, the mildness of its criminal sanctions and its lack of effectiveness against this kind of infringement decided to significantly amend its rules in order that they would become one of the strictest of Europe and thus persuade infringers to not produce and/or market in Belgium goods infringing intellectual rights (notably trade marks, patents and copyrights). The statutory level must be improved with regard to intellectual property in order to encourage and promote the scientific, technological or artistic innovation in Belgium.

Among the main features of this new system, there is on the one hand the fact that, beside police officers, customs officers (agents designated by the FPS Finance) and agents of the FPS Economy (Ministry of Economy) have been empowered to establish and investigate these infringements and, on the other hand, the fact that the agents of the FPS Finance and the FPS Economy could settle the small cases (Article 17 of the Act).

Indeed, after having established an infringement, an agent may transmit this file to the Public Prosecutor in order to initiate criminal proceedings. However, when the latter considers that the infringement is not of sufficient seriousness to justify pursuing the infringer, he can also propose to the infringer to settle the file which will terminate the criminal action as long as the infringer has released the goods and the injured party did not fill a criminal complaint.

The small scale infringements are currently rarely the subject of legal proceedings due to the overloading of the Public Prosecutor’s office and cannot be the subject of settlements. Indeed, the Royal Decree which would have determined the details of the procedure of transaction (especially the rates and the mode of the transaction, of the payment, of the receipt of this amount, the method of the release proceedings and the destruction of the goods) has not yet been passed due to a loophole in the Act.

The provisions of the Act left indeed too much room for interpretation. It was therefore difficult to assess accurately the budget impact of the draft Royal Decree as the costs of storage and destruction of the seized goods risked to be borne by the authorities in charge of the seizure of these goods.

The Council of Ministers approved on 13 November 2009 several modifications of the Act in order to remedy the situation. These modifications have been included in the Act of 28 April 2010 on various provisions, more especially in the provisions in articles 40 to 44 changing the provisions changing articles 13 and 16 of the Act. The execution decrees must still be voted.

The legislator has in this way introduced a more clear distinction between the administrative proceedings (settlement) and the criminal proceedings on the rules applicable to the destruction of the seized goods. On one hand, the agents of the FPS Economy can order, without needing the prior consent of the Public Prosecutor, the destruction of the goods which had been released to the Treasury and not been claimed by an alleged right owner on these goods within the month of the release. This rule does not apply if the agents have passed on the file to the Public Prosecutor. On the other hand, the Public Prosecutor can order the destruction of the seized goods within a month of their seizure.

However, in all circumstances, it is planned that the costs of destruction and of preserving/storage will be borne by the owner of the counterfeited goods except if such party is unknown or insolvent. In this case, the declarant of the goods, the addressee of the goods and the owner of the rights will bear the costs jointly.

Moreover, in some circumstances, it is now possible that the counterfeited goods will not be destroyed but recycled for other purposes without harming the owner of the trade mark.

Furthermore, the general policy note « The Undertaking and the Simplication » of 5 November 2009 forecasts however that the FPS Economy together with the FPS Justice will continue to coordinate the fight against counterfeiting and will analyze in particular how to better organize the storage and destruction of the counterfeited goods seized by the control services.

This issue thus stays at the centre of the debate and preoccupations of interested parties and, in waiting for the adoption of the Royal Decree, we hope that this will be subject to pragmatic arrangements that, unfortunately, up to now have often been unfairly borne by the owner of the trade marks.