How are damages for trademark infringement calculated in Belgium?

When your company becomes a victim of counterfeiting or trademark infringement, the calculation of damages is often a complex legal issue. Case law shows that you are entitled to full recovery of actual damages, such as lost profits, but abstract claims of trademark dilution without concrete evidence are invariably rejected. If the exact damage is extremely difficult to quantify, the court may determine it ex aequo et bono (in equity) on the basis of normal sectoral profit margins

The facts

JanSport, holder of the internationally known EASTPAK-Union trademark, discovered in September 2019 that retail chain Kruidvat was offering bags for sale with the inscription “SPORT.” These bags were supplied to Kruidvat by Dutch wholesaler Dugros through a consignment agreement. Earlier, in a judgment dated June 27, 2022, the Brussels Court of Appeal had already established conclusively that Kruidvat and Dugros were thereby infringing on JanSport's trademark. The court ruled that there was a likelihood of confusion and that the infringers took unfair advantage of the trademark's reputation.

Following these cease-and-desist proceedings, JanSport claimed substantial damages of 80 euros per infringing bag before the Dutch-speaking Enterprisecourt Brussels, as well as the full remittance of profits by Dugros. An audit report submitted by Dugros showed that a total of 23,662 counterfeit bags were put into circulation, of which 4,715 were delivered specifically to Kruidvat. Kruidvat, however, had stopped sales immediately after the seizure order regarding counterfeiting was served, meaning that 802 bags were not sold but remained sealed.

Enterprise court decision

In a December 9, 2025 ruling, the Enterprise Court rejected JanSport's demand for liquidated damages of 80 euros per bag and reduced the amount to the effectively proven, lost profits.

• Forfeited profits: The court ruled that JanSport had effectively foregone profits by selling the bags in question, because consumers would otherwise have presumably purchased an original EASTPAK. Since JanSport did not provide transparency about its own profit margins, the court held the lost profits were ex aequo et bono fixed at 3 euros per bag. This amount was based on a realistic net profit margin of 10% on an average selling price of 30 euros.
• The conviction: For the 3,913 bags effectively sold through Kruidvat (4,715 delivered minus 802 sealed), Kruidvat and Dugros were in solidum (jointly and severally) ordered to pay 11,739 euros. Dugros was also ordered exclusively to pay 56,841 euros for the remaining 18,947 bags it had supplied to third parties.
• No trademark dilution: The claim for additional compensation for image damage or trademark dilution was rejected. JanSport provided no objective evidence (such as market surveys or consumer surveys) that the brand's appeal had been impaired in the eyes of the public.
• No profit remittance: Dugros' claim for profit transfer was also dismissed. The court ruled that there was no deliberate bad faith, partly because the bags in question were not protected by a design right and Dugros had immediately stopped distribution after learning of the seizure. Kruidvat did have to bear the costs of the seizure on counterfeiting in the amount of EUR 1,896.72.

Legal analysis and interpretation

Under Belgian law, the right to damages for trademark infringement is based on the principle of strict liability. This means that committing the infringement in itself constitutes a fault within the meaning of Articles 6.5 and 6.6 of the Civil Code (Articles 1382 and 1383 of the Old Civil Code). The good faith or ignorance of the infringer does not constitute any justification for this.

In accordance with Article 13 of the European Enforcement Directive (Directive 2004/48/EC) and Article 2.21(1) of the Benelux Convention on Intellectual Property (BCIP) the principle of equivalence applies: the aggrieved party is entitled to full reparation for actual damages, but may not enrich himself. Punitive damages punitive damagesare prohibited in our legal system.

If the extent of the damage is almost impossible to determine precisely, the court may, pursuant to Article 2.21(2)(b) BCIP, proceed to a flat-rate estimate ex aequo et bono. However, this does not discharge the plaintiff from his burden of proof; merely referring to high lump sums from other (non-comparable) case law is insufficient. An additional sanction such as the surrender of profits (Article 2.21(4) BCIP) does require bad faith on the part of the infringer, unlike ordinary damages. One must prove that the perpetrator knowingly and willfully performed the infringing acts, despite knowledge of intellectual property law.

What this specifically means for your case

This judgement offers important strategic insights, both for rights holders and for companies that (unwittingly) distribute infringing goods:

• For the trademark owner: Merely demonstrating infringement does not automatically open the doors to sky-high damages. You must thoroughly and numerically substantiate your damages (such as lost sales). If you seek compensation for reputation damage or trademark dilution, invest in objective evidence such as market studies. Without this evidence, courts are limited to a calculated, sometimes modest, margin per product sold.
• For the (alleged) infringer: Acting proactively and quickly is crucial. Immediately blocking the sale after a notice of default or seizure regarding counterfeiting demonstrates your good faith. This proactive attitude can save you from the severe financial penalty of profit remittance for bad faith. In addition, ensure transparent accounting so that damages can be limited to actual realized sales.

Frequently asked questions (FAQ)

Can I seek a civil penalty or punitive damages for trademark infringement?
No, in Belgium the principle of integral recovery and the principle of equivalence apply. You can only be compensated for damages actually suffered (such as lost profits or reputational damage); the Belgian legal system does not allow punitive damagespunitive damages.

Does good faith play a role in trademark infringement?
For establishing the infringement and awarding ordinary damages, good faith plays no role, given the objective liability. However, for an additional requirement to remit the unlawfully made profits (profit remittance), it does require that the perpetrator acted in bad faith.

How do I prove trademark dilution or reputational damage?
A judge will not simply assume trademark dilution. You will have to prove, using objective data such as market surveys or consumer surveys, that consumer economic behavior was actually altered by the infringement.