(a) Injunctions 1. General rule Article 95 of the law of 14 July 1991 on trade practices and consumer information and protection provides that the president of the commercial court shall ascertain the existence and order the cessation of an act, even a criminally sanctioned one, that constitutes a breach of the above-mentioned law. This proceeding on the merits of a case which, as stated in Article 100 of the law, is formulated and initiated in proceedings in chambers, is called an action for suspension. The president of the court has very broad competence by virtue of the principle adopted by the Court of Cassation, whereby the violation of any provision of law or regulations constitutes an act contrary to honest commercial practices. Article 96 of this law nevertheless provides that Article 95 does not apply to infringements sanctioned by the laws on patents, trademarks for products or services, industrial designs and copyright. Article 98 of the same law sets out the persons who have the capacity to initiate an action for suspension. These are: 1.Those directly affected; 2.the Minister, except when a proceeding concerns an action contemplated in Article 93 of the law (all acts contrary to honest commercial practices by which a vendor causes harm or cause harm to the professional interests of one or several other vendors); 3.A professional or interprofessional group with its own legal personality, excepting when the proceeding concerns an act contemplated in Article 94 of the Law (any act contrary to honest commercial practices by which a vendor causes harm or may cause harm to the interests of one or several consumers); 4.A consumer protection association with its own legal personality, provided that it is represented on the Consumption Council or that it is duly recognized by the Minister of Economic Affairs, except when the proceeding concerns an act contemplated in Article 93 of the law (see above). Notwithstanding the provisions of Articles 17 and 18 of the Judicial Code, the associations and groups contemplated under points 3 and 4 above may institute legal action in defence of their collective interests as defined in their regulations. 2. Specific rules (a) Copyright and neighbouring rights The law of 30 June 1994 concerning copyright and neighbouring rights provides for the possibility of an action for suspension. Article 87.1 of the aforementioned law of 30 June 1994 envisages that: "The President of the court of first instance in the district where the infringement occurs shall have exclusive jurisdiction to order suspension. He shall ascertain the existence and order the suspension of any infringement of copyright or a neighbouring right. The action shall be formulated and initiated in proceedings in chambers. A ruling shall be made on the action notwithstanding any criminal proceedings instituted based on the same facts. The judgement shall be provisionally enforceable, regardless of any appeal and without the deposit of a security, except where the judge orders that such security be provided." (b) Patents Article 52.4 of the Law of 28 March 1984 on patents provides that the court shall issue a suspension order to any infringer, at the request of the injured party. (c) Layout - designs (topographies) of integrated circuits Article 13 of the Law of 10 January 1990 on legal protection for the topographies of semi conductor products provides that, at the request of an injured party, the court may issue a ruling for suspension of the infringement to any infringer. (d) Trademarks It has been seen that Article 96 of the Law of 14 July 1991 on trade practices expressly excludes the applicability of actions for suspension as contemplated in Article 95 of the same law to infringements penalized by the Law on trademarks. Nevertheless, the Court of Cassation has confirmed an established precedent whereby this exclusion did not cover cases where the use of a trademark though not an infringement, constitutes unlawful use of the trademark. Further, the judge ruling on suspension is also competent to try breaches of service marks predating 1 January 1987 and of which no confirmatory deposit has been made.5 Finally, when the protection being sought is not for the mark as a trademark but as something else, for example a non-commercial company name or even a tradename, the action for suspension may apply. (e) Industrial designs Article 14.5 of the Law of 25 October 1966 on industrial designs provides that an action may not be brought based on legal provisions repressing unfair competition for acts that constitute no more than an infringement of an industrial design. (b) Damages, including recovery of profits, and expenses including attorney's fees The judge may order the infringer to pay adequate compensation to the right holder for damages suffered by the latter as a result of the infringement of his intellectual property rights: -On the basis of a general provision (Article 1382 of the Civil Code). This general provision states that any human act that causes injury to another person obliges the person, by whose act the injury is caused, to compensate for it. This is applicable even if the person at fault was not aware that the act concerned was in breach of an intellectual property right; - on the basis of a specific provision. 1. Copyright The Law of 30 June 1994 on copyright and neighbouring rights permits actions for damages. Article 87.2 of the aforementioned law of 30 June 1994 envisages that: "The handing over of the counterfeit objects and plaques, moulds, matrices or other utensils that were used directly to commit the infringement that may still be in the possession of the defendant, may be ordered as part of the compensation due to the plaintiff. If the defendant acts in bad faith, he shall be issued with a ruling for the confiscation of the counterfeit objects and the plaques, moulds, matrices and other utensils that were used directly to commit the infringement or, as appropriate, an order to pay a sum of money equal to the price of these objects or of other goods already sold." 2. Topography The Law of 10 January 1990 on legal protection of topographies of semi-conductor products prescribes that the court may, upon application of the injured party, order any infringer to pay compensation to the plaintiff for the damages caused by the infringement. 3. Patents Article 52.4 of the Law of 28 March 1984 on patents provides that, at the request of the injured party, the court may order any infringer to pay compensation to the plaintiff for damages caused by the infringement. 4. Trademarks Article 13 of the Law of 19 March 1962 provides that the owner is entitled to claim compensation for any damages suffered as a result of the use of the disputed trademark by the author of the infringement. Article 13.A.4 of this law further allows the owner of the trademark, in addition to an action for damages or in its stead, to bring an action for the recovery of profits derived from the unlawful use of the trademark, as well as an action for a statement of accounts in that connection. The law states that the courts shall reject the action if they are of the opinion that the use is not in bad faith or that the circumstances of the case do not justify the ruling being sought. 5. Industrial designs Article 13.4 of the Law of 25 October 1966 provides that the licensee, acting together with the owner, may initiate proceedings for compensation of any damages suffered as a result of the infringement of an exclusive right. The judge may order the infringer to reimburse the right holder any court expenses incurred.6 Attorney's fees may not be recovered, subject to an order to pay costs.7 Each party therefore bears its own attorney's fees, regardless of the outcome of the trial. This principle is at odds with Article 45 of the TRIPS Agreement which provides that the judicial authorities shall also have the authority to order the infringer to pay the right holder expenses, which may include appropriate attorney's fees. (c) Destruction or other disposal of infringing goods and materials/implements for their production 1. General rules The judicial authorities shall have the authority to order that goods that they have ascertained to be in breach of a right should be excluded from commercial circuits or destroyed, without compensation. The destruction of goods is a measure which can obviously be contemplated only as part of an action on the merits of a case, as it is anything but provisional. When destruction is requested in Belgium, it is granted without too much difficulty. There are even cases in which the holder also has the possibility of taking delivery of the disputed products. In general, the decision provides that the costs of destruction or delivery of the products shall be borne by the infringer. The judge may order the seizure of works infringing intellectual property rights (also called seizure-description): Patentees, holders of supplementary protection certificates for medicinal products, holders of and applicants for plant breeders' rights, their successors in title and the owners of copyright, may, with the permission of the judge given upon application, arrange for one or several experts appointed by the judge, to undertake a description of the equipment, machines, works, plant varieties, reproductive and propagating material and of all allegedly counterfeit objects and procedures, as well as drawings, documents, calculations, writings, plants or parts of plants that may help to prove the alleged infringement, and tools that have produced the disputed items (Article 1481 JC). The petition shall take the form of a unilateral application and must therefore necessarily be signed by an Attorney (Article 1026 JC). The judge ordering the seizure may use the same order to forbid the holders of the counterfeit objects to alienate them, appoint a trustee, place the objects under seal and, if the acts in question have produced revenue, to authorize the attachment of such funds (Article 1481 JC). The petition shall contain an election of domicile in the communes where the description must be made. The patent, the supplementary protection certificate for medicinal products, the plant breeders' right or a copy of the filed application duly certified by Service for the Protection of New Varieties and, if appropriate, the supporting documents, must be attached to the petition (Article 1482 JC). The judge may require the applicant to deposit a security, in which case the judge's order is delivered only upon receipt of proof of the deposit of the security (Article 1483 JC). The parties may attend or be represented at the drawing up of the description if specially authorized to do so by the judge ordering the seizure (Article 1484 JC). The seizure - description is always carried out on the strength of an authorization by the judge ordering seizure, which authorization is also a warrant to search the premises of a third party (Article 1485 JC). The seizure is valid for one month (Article 1488 JC) and differs from ordinary law according to which seizures are in principle effective for three years. The summons to appear at the trial on the merits of the case must be issued within a month of the date of submission of the expert's report or of the attachment of the revenue8 (Article 1488 JC). At the request of the creditor and in cases requiring immediate action, the judge may issue an order of distraint of attachable goods belonging to the debtor (Articles 1413 to 1428 JC). Furthermore, the judge may also issue an order of attachment in respect of a third party (Articles 1445 to 1460 JC). This is an act by which the creditor confiscates from a third party sums of money or property owed by said third party to his debtor. Seizures are intended to place safely "in the hands of the law " goods belonging to the debtor, to "block" such goods so as to prevent the debtor of disposing of them to the detriment of his creditors. 2. Specific rules (a) Patents Article 52.4 of the Law of 28 March 1984 envisages that in case of bad faith, the court may rule that the infringing objects and the instruments or means specifically used to produce them should be confiscated and delivered to the plaintiff. Where appropriate, the court will award a sum of money equal to the price of objects already sold. (b) Topographies Article 14 of the Law of 10 January 1990 provides that in case of bad faith, the court may rule for the confiscation and delivery to the plaintiff of semi-conductor products infringing an exclusive right, and of the instruments and means specifically used for their production. (c) Trademarks Article 31bis, 1 of the Law of 1962 enables the right holder to claim ownership of moveable goods infringing his right or of the goods used for their production, or to require that they be destroyed or placed out of use. This claim may be enforced against sums of money presumed to be earned as a result of the infringement. The claim will be rejected if the infringement has not been committed in bad faith. (d) Other remedies 1. Publication The court may also order the publication of the ruling. In Belgium, as this measure is treated as a form of compensation, it is in principle ordered only in a trial on the merits. There are nevertheless some exceptions. Thus, in the case of a servile infringement, when the counterfeit product could in itself cause serious harm to the consumer, the judge sitting in chambers may be inclined to rule for publication. (a) Copyright Article 87.1 of the Law 30 June 1994 concerning copyright and neighbouring rights provides that in addition to the suspension of the disputed act, the president of the court may, as he sees fit, order the publication of all or part of the ruling, at the expense of the defendant. (b)Topographies Article 13 in fine, of Law of 10 January 1990 on the legal protection of the topographies of semi-conductor products provides that the court may order the publication of the ruling. (c) Patents Article 53 of the law of 28 March 1984 on patents provides that the courts may order the publication of the ruling. 2. Returning counterfeit goods Once the infringer has sold the goods they belong to his clients. In such a case, the court cannot order him to take them back. It may nevertheless order him to write to his clients to inform them of the existence of a court ruling. 3. Penalty payment At the request of one party, the judge may sentence the other party, if the main sentence is not satisfactory, to pay a sum of money known as a penalty payment, though without prejudice to any damages that may be adjudged. Nevertheless, the penalty payment may not be imposed in the event of a previous ruling to pay a sum of money, nor in the case of actions for the execution of work contracts (Article 1385bis, JC). For example, the judge may attach a penalty payment to an order to cease using an infringing trademark, to furnish commercial information, to destroy certain objects or write to clients. This means that the defendant is sentenced to pay a lump sum, be it for non-compliance with the order given, or an amount per day (or per hour) of delay in complying with the order. The penalty payment benefits the plaintiff. It is a means of pressure totally independent of other measures of compensation. In other words, the amount of damages that could be payable by the party ordered to make a penalty payment is not influenced by the existence of such penalty payment. -Trademarks By virtue of Article 13bis, 5 of the Law of 1962, the court may, upon application of the right holder, order the author of the infringement to provide all information at his disposal concerning the origin of the infringing goods and to make available all related information. This provision allows the right holder to reconstitute the chain of production and distribution of the counterfeit objects, thus getting at the source of the infringement.
[Answer 8: (a)Costs Article 1017 of the Judicial Code provides that in principle, all final judgements include an order for the party losing the case to pay costs, unless there are specific laws that provide otherwise and without prejudice to a possible agreement between the parties, which would be included in the ruling. Costs include (Article 1018 of the Judicial Code): (a)Stamp duty9, registry charges10, and registration fees11; (b)emoluments and salaries for the drafters of legal documents12; (c)the cost of a certified copy of a court decision; (d)the cost of all investigatory measures in particular, witnesses'13 and experts' fees; (e)travel and accommodation expenses for judges, clerks of the court and the parties, when such travel has been ordered by the judge; (f)the cost of legal documents that have been drawn up exclusively for the purposes of the trial; (g)compensation for court costs. Such compensation is intended partly to offset lawyers' fees payable by the party winning the case. Such payments are regulated by Royal Decree14 ; (h)execution costs (Article 1024 of the Judicial Code). The following are not included in costs: (a)Lawyers' fees; (b) costs incurred in relation to briefs and opinions; (c)arbitrary and unnecessary costs, that is, arbitrary and unnecessary costs to be borne by the ministerial officer who incurred them.15 The parties must advance all these fees during the proceedings. Nevertheless, in order to ensure that indigent persons also have access to the courts to enforce their rights, the Judicial Code has provided for legal aid and for pro deo. As envisaged in Articles 664 to 699 of the JC, legal aid means fully or partly dispensing those who do not have the funds necessary to bear the costs of a proceeding, even an extrajudicial proceeding, from paying stamp duties, fees for registration, registry services and copies of court rulings, as well as the other costs entailed in a proceeding. It also ensures the services of the Ministère des officiers publics et ministériels free of cost to those concerned. Beneficiaries of legal aid are dispensed from advancing the fees entailed in court proceedings. These fees may, however, be recovered subsequently from the beneficiary of legal aid if it is ascertained that his financial situation has changed since the decision to grant legal aid. Pro deo, which is envisaged in Articles 455 and 455bis of the JC, is provided by the Bar Council of each bar. Persons with insufficient income can thus benefit from the services of a lawyer free of cost. (b) Duration We are not in a position to supply statistics as to the duration of these proceedings. This varies with the importance of the case.]