Can you file a descriptive anti-counterfeiting seizure if a former employee copies your software?

An ex-employee starting a competitive business is a classic nightmare for any technology company. Especially when this happens suspiciously quickly. An order by the president of the Dutch-speaking court of first instance in Brussels on 24 September 2025 shows that the descriptive anti-counterfeiting seizure is an extremely powerful weapon to act in such a situation. The president confirmed that you do not need conclusive proof of infringement; “apparently” valid rights and “sufficient evidence” of counterfeiting are sufficient to order the action.

The facts: from layoff to competitor in a few days

The facts that led to this ruling are clear. A company is in the business of developing specialized software for the crypto market. It claims that its software is protected by copyright .

Two employees, who participated in the development of this software, are leaving the company in December 2024. Although they were not bound by any non-compete obligation, they did have waived their intellectual property rights to the software in favor of the employer.

Even in that same month, mere days after their departure, a new website pops up. This website, linked to the ex-employees (including through a LinkedIn profile) , offers identical services as the ex-employer.

The employer suspects that it is impossible to develop such complex software on such short notice. The company fears that the ex-employees copied and used its copyrighted source code. The company goes to court and on April 2, 2025, through unilateral proceedings (without hearing the other party), obtains an order granting a descriptive anti-counterfeiting seizure.

The former employees disagree and file third-party opposition to this order, with the goal of having the seizure withdraw.

President's decision

In the order of September 24, 2025, discussed here, the president of the Dutch-speaking court of first instance Brussels rejects the third-party opposition of the former employees. The original order of descriptive anti-counterfeiting seizure remains in full force and effect.

The president does not follow the former employees in any of their arguments:

1. “Apparent” copyright: The former employees disputed that the software was indeed original and thus copyrighted. However, the president argued that the bar for a descriptive seizure is lower. The court must only marginally test whether there is an “apparently valid” right. The president found sufficient evidence for this:
   • The program is the result of years of development work.
   • There was a “top-down” direction, implying that creative and strategic choices were made, and it was not merely the result of technical necessity.
   • A strong indication was that the company had received grants and an innovation deduction, which are conditions often associated with the development of (copyrighted) computer programs.
2. “Indications” of infringement: The ex-employees claimed that their website was mere “marketing” and they had no code or customers yet. The preisdent finds this “implausible.” The president ruled that there was sufficient concrete evidence of infringement. For him, the crucial element here was timing: it is simply not credible that one can develop an identical, complex software in a matter of days without at least using the ex-employer's source code as a basis.

Legal analysis and interpretation

This decision is a textbook example of the efficiency of the descriptive anti-counterfeiting seizure, as regulated by Article 1369a/1 of the Judicial Code.

The purpose of this procedure is not to decide the case “on the merits,” but to surprise the suspected infringer and gather evidence that might otherwise disappear. The president affirms two important principles:

1. The marginal test: The judge ruling on the petition (and later on the third-party opposition) does not have to judge whether the software is effectively copyrighted. He must only consider whether it is prima facie or “apparently” so. As shown here, circumstantial evidence (such as receipt of innovation grants) may suffice to meet this low threshold.
2. The “indications” of infringement: Again, the threshold is relatively low. The judge relied on a bundle of presumptions. The timing (several days) and the identical nature of the service were the key elements in this case that led to a “presumption of infringement.” The ex-employees“ ”marketing" defense was brushed aside as implausible.

An important procedural point also raised by the president: in assessing the third-party opposition, the court may not take into account the evidence found during the attachment (which had already been executed). Indeed, the decision to impose the seizure must be justified on the basis of the elements that were before it on the date on which the unilateral petition was decided.

What this specifically means

• For employers in the technology sector:
  • This is a very effective tool for taking swift action against (former) employees suspected of IP theft.
  • Don't wait. If you have suspicions, gather evidence immediately (screenshots of the website, LinkedIn profiles, etc.) and contact a specialized attorney.
  • You do not have to have conclusive evidence. A strong bundle of “clues” is sufficient to initiate proceedings.
  • Also use circumstantial evidence (e.g., tax breaks, grants) to make the copyright protection of your software plausible.
• For employees who want to start their own business:
  • Your freedom to do business and the elimination of a non-compete clause do not mean that you have free rein.
  • The intellectual property rights from your former employer (such as source code) remains protected. Use, even as a “base” for your own program, is an infringement.
  • An identical competitor startup days after your departure is the quickest way to trigger a descriptive seizure. The court will likely label your defense that it was “just marketing” as “implausible.”.

Frequently asked questions (FAQ)

What exactly is a descriptive anti-counterfeiting seizure?
It is a quick legal procedure in which an expert, accompanied by a bailiff, is granted access to the premises and computer systems of a suspected counterfeiter on a unilateral basis (i.e., without prior notice to the opposing party). The purpose is not to seize goods, but to describe the alleged counterfeiting and its extent, thus gathering evidence for a subsequent trial “on the merits.”.

Does my software have to be registered to be protected?
No. In Belgium, copyright arises automatically at the moment of creation, provided that it is “original” (an “author's own intellectual creation”). This is the essence of article XI.295 of the Code of Economic Law. You do not need to deposit or register your software anywhere to be protected.

What are the consequences of rejecting a third-party opposition?
The employer can now use the evidence gathered during the descriptive seizure (which the judge was not yet allowed to consider in these proceedings) in proceedings on the merits to prove the effective infringement and seek damages and/or a prohibitory injunction order.

Conclusion

This decision is a clear warning to employees and reassurance to employers. The courts in Belgium, through the descriptive seizure, offer a powerful and quick tool to gather evidence of suspected infringement of software rights. The threshold for obtaining this measure is not in proving infringement, but in making your rights plausible and presenting “sufficient evidence” of infringement. Here, the suspicious timing of a competitive launch is often the most important clue.