Belgium has a useful tool against IP infringers: descriptive seizures. By means of an ex parte request to a competent Court of Commerce, IP owners can obtain allowance for such a seizure. The only evidence that is needed is a proof of existence of the IP right and some evidence that there is a prima facie suspicion of infringement. The court will in nearly all cases allow the descriptive seizure and then appoint an expert who – without any advance warning – will show up on the doorstep of the alleged infringer, accompanied by a bailiff and sometimes the police, with a court order granting him access to the premises for a description of products or manufacturing processes that may be present.
But if you are on the other end of such an action, how can you protect your trade secrets? Especially since the Belgian government grants patents without examination. What does Belgian law provide to prevent a competitor from using this tool to gain knowledge about a company's manufacturing process, or their customers? The short answer is... nothing.
Luckily, there is some case law that provides an effective shield. Companies that are confronted with a descriptive seizure are under an obligation to cooperate. But the expert is bound to what is mentioned in the court order, so he does not have permission to examine no matter what. For example, in the case of a manufacturing process, the alleged infringer can shield all parts of the factory which are not relevant to the case. Further, the alleged infringer can file a third-party objection and point out that certain information is sensitive and should be treated confidentially. There are ample cases where the expert was made to submit certain evidence to the Court only in a sealed envelope, leaving the judge to decide whether or not the evidence should be accessible to the other party.
Finally, it has to be said that the legislature has noticed the lacuna in the law and is working on a solution.
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| Steven Sarlet
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GEVERS
Holidaystraat, 5
B-1831 Diegem - Brussels
Belgium
Tel: +32 2 715 37 11
Fax: +32 2 715 37 00
www.gevers.eu