Is a website and social media enough to protect your trade name in Belgium?

A strong trade name is a valuable asset for any business. It is the name under which you trade and become known to your customers. In Belgium the protection of a trade name not by a registration, but by the first public, visible and continuous use of it on Belgian territory. Many entrepreneurs, especially foreign ones, incorrectly assume that an online presence that is also visible in Belgium automatically suffices for this protection.

An judgment of the president of the enterprise court Antwerp of January 22, 2025 sheds a bright light on this issue. The ruling highlights the strict requirements that courts place on proof of "use" and perfectly illustrates why a proactive legal strategy for your trade name is indispensable. As attorneys specializing in corporate and intellectual property law, we explain this ruling for you.

The facts: a battle between "Fruitful-Berries" and "Fruitful Ventures"

In this case, two companies, the Belgian NV Frescura and its Dutch subsidiary Fruitful-Berries BV, to the court. They were of the opinion that the BV Fruitful Ventures infringed on their older trade name "Fruitful-Berries." They therefore demanded that Fruitful Ventures immediately cease using its name.

The bottom line: proving real use in Belgium

The central question before the court was whether the plaintiffs could prove that they actually used their trade name "Fruitful-Berries" in the Belgian market before the defendant did. After all, the protection of a trade name is territorially limited to the area where it is known. This principle is enshrined in Article 8 of the Paris Union Treaty, which states that a trade name is protected without an obligation of filing or registration. Thus, proof of first use is crucial.

The court was particularly clear in its ruling, distinguishing between the two plaintiffs:

1. For the Belgian parent company (NV Frescura): The claim was quickly dismissed. The company did not even claim, and thus did not demonstrate, that it had ever used the name "Fruitful-Berries" itself on the Belgian market. Its claim was therefore manifestly unfounded.
2. For the Dutch subsidiary (Fruitful-Berries BV): This company did argue it was operating in Belgium, but failed to support this with convincing evidence. The court ruled that the following elements insufficient were to demonstrate real and effective use on Belgian territory:
   • A general website: A simple reference to a website is not enough, especially if that site does not specifically target the Belgian market.
   • Social media presence: A profile on LinkedIn was also considered inadequate.
   • A Belgian parent company: The fact that the shareholder is a Belgian company does not in itself prove commercial activity of the subsidiary in Belgium.
   • A "base of operations for the Benelux." The mention on the website of being based in Venlo, the Netherlands, as a central base of operations for the Benelux, does not demonstrate a concrete presence in the Belgian market.
   • Distribution of products: Even the fact that the company's products are sold in Belgium is not the same as using the name "Fruitful-Berries" as a trade name or signboard in Belgium.

The president of the enterprise court concluded that Fruitful-Berries' claim was unfounded. Without proven first use in Belgium, there is no protection and therefore no infringement can occur.

Additional lesson: the limited protection of a descriptive trade name

As if the first reasoning were not enough, the president added unnecessarily added another important argument. Unlike a trademark a trade name need not be distinctive to enjoy protection. However, the president warned: the more descriptive a trade name is, the more limited its protection will be.

The name "Fruitful-Berries" is purely descriptive; it literally describes the product the company sells. According to the president, such a name enjoys only minimal protection, meaning that the slightest variation on the name results in a loss of similarity. The name "Fruitful Ventures" was sufficiently different, according to the judge, so that even if there had been use in Belgium, there would be no infringement.

What does this mean for your business?

This ruling is important for any entrepreneur who is or wants to become active in Belgium:

• Protection requires action: Don't rely solely on your online presence. To protect your trade name in Belgium, you must be able to prove that you have it actively and visibly used on the Belgian market (e.g. through a .be website, targeted advertising, invoices to Belgian customers, physical presence, etc.).
• Be specific: A general website or social media page accessible from Belgium is not enough. You must demonstrate that you are actually addressed to the Belgian public.
• Think about your choice of name: A highly distinctive, imaginative name enjoys much broader protection than a merely descriptive name. A descriptive name is easy for marketing, but legally vulnerable.