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- The plaintiffs:<\/strong> The four Flemish POMs are public law institutions established in 2006 by the Flemish Government to promote socio-economic policy . They use the acronym \u201cPOM\u201d in their official designation.<\/li>\n\n\n\n
- Defendant:<\/strong> POM NV is a commercial company founded in 2014, which changed its name to \u201cPOM\u201d in 2016. The company is a successful software developer for invoice and payment automation and has registered several \u201cPOM\u201d trademarks.<\/li>\n\n\n\n
- The dispute:<\/strong> The public POMs demanded that POM NV stop using the name \u201cPOM\u201d and transfer the domain name www.pom.be. The crux of their argument was that the private firm's use of \u201cPOM\u201d - including on payment requests for parking fees - created confusion among the public, who might therefore think that the public POMs were behind these payments.<\/li>\n<\/ul>\n\n\n
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<\/a>\n\t\t\t<\/div><\/figure>\n\t\t<\/div>\n\n\n\nThe public POMs based their claim on several grounds, including the protection of their trade name<\/a>, unfair market practices<\/a> (both to businesses and consumers) and the unlawful registration of the domain name<\/a>.<\/p>\n\n\n\n
The decision: appeals court affirms rejection<\/h2>\n\n\n\n
Like the first-instance judge, the appeals court swept aside all of the public POMs' claims<\/sup><\/sup><\/sup><\/sup>. The central question was not who used the name first, but rather whether the public POMs could claim the invoked legal protection at all.<\/p>\n\n\n\n
The court's answer was a clear \u2018no.<\/p>\n\n\n\n
The crux of the argument: the Provincial Development Companies do not qualify as \u201centerprises\u201d within the meaning of Book VI of the Code of Economic Law (CEL)<\/a>.<\/p>\n\n\n\n
The court held that the POMs were performing a \u201ctask of general interest,\u201d namely implementing socio-economic policies<\/sup>. Although in doing so they perform tasks such as the (sale) of land, they do so not with an \u201ceconomic purpose\u201d (making a profit in a competitive market), but with a \u201cpolicy purpose\u201d<\/sup>. They promote business but \u201cdo not participate in it themselves\u201d<\/sup>. They operate within a public law framework, even have expropriation powers and thus do not compete with private players <\/sup>.<\/p>\n\n\n\n
Legal analysis and interpretation<\/h2>\n\n\n\n
This judgment is an example of the importance of the \u201cfunctional\u201d business concept in Belgian economic law.<\/p>\n\n\n\n
1. The crucial \u201cfunctional\u201d business concept<\/h3>\n\n\n\n
Many parties assume that any entity with a CBE number is a \u201cbusiness.\u201d For Book VI WER (Market Practices) and Book XII WER (Certain Legal Acts), however, this is not the case. Here, a specific, \u201cfunctional\u201d definition applies<\/sup>:<\/p>\n\n\n\n
\n
A \u201cbusiness\u201d is \u201cany natural or legal person that pursues an economic objective in a sustainable manner, as well as its associations\u201d (Art. I.8, 39\u00b0 CEL)<\/sup>.<\/p>\n<\/blockquote>\n\n\n\n
Public POMs did not meet this definition. Their purpose is policy-based, not economic.<\/p>\n\n\n\n
2. The legal implications of that qualification<\/h3>\n\n\n\n
Because public POMs were not considered \u201cbusinesses,\u201d their most important claims fell flat:<\/p>\n\n\n\n
- \n
- No trade name protection (art. VI.104 CEL):<\/strong> This article prohibits unfair market practices between businesses. Since the plaintiffs were not businesses, this provision could not be invoked. The court sharply stated that the POMs were not using their name \u201cin commerce to distinguish a commercial business, but in public law to distinguish a public body.\u201d.<\/li>\n\n\n\n
- No protection against B2B deception (Art. VI.105 CEL):<\/strong> For the same reason, the claim based on deceptive intercompany practices failed.<\/li>\n<\/ul>\n\n\n\n
3. Consumer deception claim (B2C).<\/h3>\n\n\n\n
This was a key issue on appeal. The public POMs argued - correctly, the court ruled - that they could indeed bring an action to protect consumers. To do so, one need not be a \u201cbusiness\u201d; it suffices to be an \u201cinterested party\u201d (Art. XVII.7 CEL).<\/p>\n\n\n\n
Nevertheless, this claim also failed. For a misleading trade practice (art. VI.97 and VI.98 CEL), a double condition must be met:<\/p>\n\n\n\n
- \n
- There is misleading information (e.g., confusion about identity);<\/li>\n\n\n\n
- That deception leads (or may lead) the average consumer to make a decision about a transaction that they would not otherwise have made.<\/li>\n<\/ol>\n\n\n\n
The public POMs provided no evidence of that second, crucial condition. They could not show that the confusion effectively caused consumers to pay a bill or penalty they otherwise would not have paid. Mere confusion or receiving misdirected emails is insufficient.<\/p>\n\n\n\n
4. The claim for transfer of the domain name pom.be<\/h3>\n\n\n\n
The claim to transfer the domain name (Art. XII.22 CEL) was also rejected<\/sup>. The conditions for this are cumulative: (1) likelihood of confusion with a name to which one has a right, (2) the domain name holder has no right or legitimate interest, and (3) the registration occurred in bad faith <\/sup>.<\/p>\n\n\n\n
The court ruled that none of the conditions were met. The public POMs had no trade name rights and POM NV, as a commercial company, did have a legitimate interest in the name, which, moreover, it had not registered in bad faith.<\/p>\n\n\n\n
What this specifically means<\/h2>\n\n\n\n
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- For government agencies and NPOs:<\/strong> Recognize that your organization's name does not automatically enjoy the robust protection of a \u201ctrade name.\u201d That protection is reserved for actors who have economic <\/em>pursue goals in a competitive marketplace. Want to take action against confusion? Then make sure you can prove that it causes consumers to make economic decisions they would not otherwise make.<\/li>\n\n\n\n
- For commercial enterprises:<\/strong> Choosing a name or acronym that is also used by a public entity is not necessarily prohibited, especially if you operate in a completely different industry. Actively using it as a trade name and registering (figurative) trademarks build a crucial \u201clegitimate interest\u201d that can protect you from later claims.<\/li>\n<\/ul>\n\n\n\n
Frequently asked questions (faq)<\/h2>\n\n\n\n
So is a government agency or NPO never a \u201cbusiness\u201d?<\/strong>
Yes, it can. The court is not ruling that public entities can never be a bsiness. However, they are one only for those activities in which they do pursue an economic purpose on a sustained basis and offer goods or services in a market, separate from their public interest mission. In this case, the court held that the POMs' activities (such as land sales) were inseparable from their public policy mission.<\/p>\n\n\n\nShouldn't the public POMs have registered their name as a trademark?<\/strong>
They could have done that. A trademark registration<\/a> (e.g., a word mark \u201cPOM\u201d) provides much stronger, absolute protection than a trade name. A trademark<\/a> can be invoked against any subsequent similar use for similar goods or services, regardless of whether the plaintiff itself is a \u201cbusiness\u201d within the meaning of Book VI of the CEL. Incidentally, the private POM NV did have trademark registrations.<\/p>\n\n\n\nWhy was POM NV's counterclaim for \u201cvexatious and reckless litigation\u201d dismissed?<\/strong>
Although the public POMs lost the case entirely, the court ruled that their (appeal) was not \u201cvexatious and reckless.\u201d The reason was specific: the first judge had forgotten to rule on the B2C claim (misleading consumers). So the POMs had a valid procedural reason to appeal, even if they were proven wrong on the merits.<\/p>\n\n\n\nConclusion <\/h2>\n\n\n\n
This judgment is an important reminder of the strict, functional interpretation of the business concept in Belgian economic law. Public entities and private companies often operate legally on completely different playing fields, even if they happen to bear the same name.<\/p>\n\n\n\n
\n\n\n\n - For commercial enterprises:<\/strong> Choosing a name or acronym that is also used by a public entity is not necessarily prohibited, especially if you operate in a completely different industry. Actively using it as a trade name and registering (figurative) trademarks build a crucial \u201clegitimate interest\u201d that can protect you from later claims.<\/li>\n<\/ul>\n\n\n\n
- For government agencies and NPOs:<\/strong> Recognize that your organization's name does not automatically enjoy the robust protection of a \u201ctrade name.\u201d That protection is reserved for actors who have economic <\/em>pursue goals in a competitive marketplace. Want to take action against confusion? Then make sure you can prove that it causes consumers to make economic decisions they would not otherwise make.<\/li>\n\n\n\n
- No protection against B2B deception (Art. VI.105 CEL):<\/strong> For the same reason, the claim based on deceptive intercompany practices failed.<\/li>\n<\/ul>\n\n\n\n
- Defendant:<\/strong> POM NV is a commercial company founded in 2014, which changed its name to \u201cPOM\u201d in 2016. The company is a successful software developer for invoice and payment automation and has registered several \u201cPOM\u201d trademarks.<\/li>\n\n\n\n
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