(a) Pursuant to Article 1 of Council Regulation (EC) No. 3295/94 of 22 December 1994, which lays down measures to prohibit the release for free circulation, export, re-export or entry under a suspensive procedure of counterfeit and pirated goods, suspension of the release or detention of goods may be applied in relations with non-EEC member countries when the goods are:
-Placed on the market;
-in the customs warehouse;
-in external transit;
-for inward processing under the suspensive procedure;
-for processing in bond;
-for temporary admission;
(b) Without prejudice to application of Article 29 of the Code of Criminal Procedure, which obliges officials to inform the Royal Prosecutor of any offence, the following are excluded from the scope of the aforementioned regulation:
-inward processing under the economic regime;
-free zones and bonded warehouses.
(c) Suspension of the release or detention of goods only applies to goods that infringe the following intellectual property rights:
-Trade mark rights;
-copyright and neighbouring rights;
-industrial design rights.
The first two means mentioned (proof of registration and proof of deposit) apply to the owners of trade marks or industrial design rights. For both these rights, the two means of proof must be taken into consideration. If the supporting document is a Benelux certificate of deposit issued more than one year previously, however, proof that the certificate is still valid is required.
Regarding the third means of proof cited, Article 6.2 of the Law of 30 June 1994 on copyright and neighbouring rights provides that: "Unless otherwise proved, the author shall be deemed to be the person identified as such on the work with his own name or a sign permitting his identification." If there is a dispute, proof is the responsibility of the infringer (defendant), who must use all legal means to show that the person claiming to be the owner of the right is not in fact the owner.
Attention is however drawn to the following special cases:
-Works of collaboration: for joint works of collaboration and works of collaboration that can be separated, covered by Articles 4 and 5 of the aforementioned Law respectively, it will be noted that the rights belong to the co-authors (or their successors in title) for 70 years after the death of the last surviving co-author;
-anonymous and pseudonymous works: anonymous works (which do not bear any indication of the author's name) or pseudonymous works (where the author conceals his identity under a borrowed name) may appear to be exceptions to the rule that the original owner is the creator. Since the true author is necessarily unknown, it had to be determined who would be the owner of the rights in relation to third parties and especially who had the right to institute legal proceedings. In this particular case, Article 6.3 of the aforementioned Law provides that the publisher of an anonymous or pseudonymous work is deemed to be the author in relation to third parties. This assumption is only valid in relation to third parties. In other words, the creator is still the owner of the rights in relation to the publisher, unless he assigns his rights to the latter;
-posthumous works: Article 2.6 of the aforementioned Law states that any person who, after expiry of copyright protection (70 years after the author's death), lawfully publishes or communicates to the public for the first time a work not previously published benefits from protection equal to the author's economic rights. It therefore follows that, for posthumous works published less than 70 years after the death of the author, the heirs or legatees remain the owners of rights in the work.
With regard to the title under which a person who is not the owner of the right is authorized to utilize the right, both the harmonized Benelux Laws on trade marks and industrial designs as well as the Community trade mark regulations provide that the granting of a right of use must be the subject of a licensing agreement and that, in order to be used as evidence against third parties, it must be registered in the trade mark register (or the industrial design register, whichever is relevant). A person claiming the title referred to in Article 2(b) of the implementing regulations must provide proof that his right to a licence has been entered in the register. In addition, the trade mark procedure includes a special category of trade marks whose use is authorized for a specified group of persons. These are collective trade marks, which are registered as such in the name of an association or group of enterprises. Deposit of such trade marks must be accompanied by regulations on use of the trade mark indicating the persons authorized to use it on their products. In this particular case (of rather limited scope), the title of legitimate user of the trade mark must be proved in conformity with the regulations on use deposited.
If the representative is bound by an agency contract to the owner of the right or any other person authorized to use the rights set out in Council Regulation (EC) No. 3295/94, he may prove his entitlement as a representative by presenting a power of attorney signed by the principal. The power of attorney may be a private agreement or an authenticated agreement (see Article 1985 of the Civil Code).
If the person represents a commercial company or a commercial-type non-trading company, he may prove his status as a representative of the company by presenting a copy of the acts of association (statutes of the company) or a copy of their publication in the Official Journal of the country where the company has its headquarters.
(d) Goods of a non-commercial nature in the personal luggage of travellers within the limits fixed for customs-free entry are also excluded from the scope of the regulations in question.
(e) The aforementioned regulations do not apply to goods bearing a trade mark with the consent of the owner of the trade mark or protected by copyright or neighbouring or design right and which have been manufactured with the consent of the owner of the right but are placed in one of the situations referred to in paragraph (a) above without the latter's consent.