Anyone who creates, invents or builds something has an interest in protecting it. Intellectual property law provides a wide range of legal tools to safeguard creative works, technological innovations, commercial identity and confidential information from unauthorized use by third parties.
But protection alone is not enough. Those who cannot enforce their rights are of little use. On this page you will find an overview of the main intellectual property rights in Belgium and the European Union, along with the legal instruments to combat infringements.
I. Protection of creative works
1. Copyright and related rights
Copyright and related rights are governed by Title 5 of Book XI of the Code of Economic Law..
Copyright
The copyright protects original works of the mind, such as literature, music, art and films. Protection arises automatically from the moment the works are created and thus without a registration requirement....
Copyright provides the creator of a work with exclusive rights to reproduce, distribute, communicate to the public or perform his or her work, and to make adaptations or adaptations of the work. Protection lasts for the life of the author plus 70 years after his or her death.
The author's principal rights are:
- Property Rights: These rights give the author control over the use of the work, including reproduction, distribution and public communication.
- Moral rights: These rights guarantee the integrity of the work and the author's right to be recognized as creator. Moral rights remain with the author even after property rights are transferred.
Neighboring Rights
Neighboring rights provide similar but independent protection to individuals and organizations that do not create a copyrighted work but bring it to the public or invest in it. Title 5 WER distinguishes four categories.
Performing artists - such as musicians, actors and dancers - have an exclusive right to the fixation, reproduction and communication to the public of their performances. The protection is for 50 years from the performance, or 70 years if the fixation of the performance is lawfully published within that period.
Producers of phonograms have an exclusive right to the reproduction and distribution of their sound recordings, and to fair compensation when those recordings are broadcast or communicated publicly. The term of protection is also 70 years from the first lawful publication.
Producers of audiovisual works enjoy similar protection for the first fixation of films and other audiovisual works, for a period of 50 years from the first lawful publication.
Broadcasters have an exclusive right to retransmit, record and reproduce their broadcasts, for a period of 50 years from the first broadcast.
Finally, press publishers have an exclusive right to the online reproduction and communication to the public of their press publications by information society service providers for a period of 2 years from publication.
2. Protection of software
Software is protected by copyright in Belgium, pursuant to Title 6 of Book XI of the Code of Economic Law.. This protection applies to the program's code, as well as its documentation, provided that the software is original. The term of protection is the same as that of copyright: the life of the creator plus 70 years.
Software can also be patentable under certain circumstances, but this is limited in Europe to specific cases where the software makes a technical contribution to a further invention problem.
3. Protection of databases
A database is a structured collection of data or other materials that are arranged systematically or methodically and are individually accessible. Protection for databases applies to both copyrighted databases and non-copyrighted databases created through substantial investment.
- Copyright protection: This protection applies when the structure or selection of the database is sufficiently creative and original. For this Title 5 of Book XI of the Code of Economic Law..
- Sui generis law: This right provides protection to the contents of a database against unlawful extraction and reuse, and is valid for 15 years. For this Title 7 of Book XI of the Code of Economic Law..
II. Protection of technology and innovation
4. Patent law
The patent law provides protection for technological inventions that are new, inventive and industrially applicable and is governed by Title I of Book XI of the Code of Economic Law.. A patent gives the inventor the exclusive right to use and exploit the invention, and to prohibit others from making, using, selling or importing the invention without permission. Protection is usually for a period of 20 years, provided annual maintenance fees are paid.
In Belgium, a Belgian patent can be applied for through the Intellectual Property Office (DIE)., but companies can also have a European patent applications through the European Patent Office (EPO), which provides protection in several European countries.
With the recent introduction of the unitary patent it has become possible to obtain protection in participating EU member states through a single application, greatly simplifying the process of patent protection in Europe.
5. Additional protection certificates
Supplementary protection certificates (SPCs) are a renewal mechanism for patents in the field of medicines and plant protection products. Because these products typically require years of clinical trials and regulatory approval before they can be marketed, much of the patent protection period is lost. An SPC compensates for this loss by extending exclusive protection by up to five years (plus six months for drugs for which pediatric studies were conducted). ABCs are regulated in Belgium by Title 2 of Book XI WER, and at the European level by Regulation (EC) No. 469/2009 (medicines) and Regulation (EC) No. 1610/96 (plant protection products).
6. Breeders' rights
The plant variety rights provides protection to new plant varieties developed by a breeder. This right gives the breeder the exclusive right to propagate and market the plant variety. In Belgium, breeders' rights are regulated by the Title 3 of Book XI of the Code of Economic Law., but there is also a European system, managed by the Community Plant Variety Office (CBP)., which provides protection in all EU member states.
To qualify for plant variety protection, the new variety must be distinctive, uniform, resistant and new. Protection is for 25 to 30 years, depending on the type of crop.
7. Protection of chips (semiconductor products).
The protection of topographies of semiconductor products, also called chips, is a specialized form of intellectual property that applies to the three-dimensional configuration of electronic circuits in semiconductors. In Belgium, it is regulated by Title 8 of Book XI of the Code of Economic Law..
This protection gives the creator of the topography exclusive rights to reproduce and commercialize the configuration of the chip, and to keep infringing products off the market. The protection is for a period of 10 years.
III. Protection of commercial identity
9. Trademark law
The trademark rights protects signs that distinguish a company's goods or services from those of other companies. Trademarks can consist of words, logos, shapes, color combinations or even sounds. In Belgium, trademark law is primarily governed by the Benelux Treaty on Intellectual Property (BTIP)., which provides protection in Belgium, the Netherlands and Luxembourg.
A trademark registration gives the holder exclusive rights to use the trademark for the registered products and services and to take action against third parties who infringe on the trademark without permission. Protection is for a period of 10 years and can be renewed indefinitely.
In addition, at the European level, one can make a Union trademark register, which provides protection in all EU member states. For international protection, companies can rely on the Madrid system For the international registration of trademarks.
10. Model right
The design right provides protection to a product's appearance, such as its shape, lines, colors, texture and embellishments. This protection is very important for companies that want to distinguish themselves through the design of their products. In Belgium, this right is governed by the Benelux Treaty on Intellectual Property (BTIP). for protection within the Benelux, and through the Community Design Regulation (Regulation (EC) No. 6/2002) for protection throughout the European Union.
The protection of a registered design is for a period of five years and can be extended to a maximum of 25 years.
11. Geographical indications
Geographical indications protect designations referring to the geographical origin of a product, when a certain quality, reputation or other characteristic of that product can be substantially attributed to that origin. One distinguishes the protected designation of origin (PDO), where production, processing and preparation take place entirely in the defined geographical area, and the protected geographical indication (PGI), where a geographical band is sufficient for at least one production step.
At the European level, geographical indications for agricultural products and foodstuffs are regulated by Regulation (EU) No. 1151/2012. Regulation (EU) 2023/2411, which entered into force Jan. 13, 2024, extends European protection to non-agricultural products such as handicrafts and industrial products. Registration is through the European Commission and provides EU-wide protection.
12. The protection of trade name and corporate name
In addition to protecting trademarks and other forms of intellectual property, the trade name and the company name important identifiers for businesses. In Belgium, trade name and company name protection is essential to avoid public confusion and to protect a company's reputation against misleading practices by third parties. The protection of the trade name is governed by Title 4 of Book VI of the Code of Economic Law. and company name by The Code of Companies and Associations.
13. Domain names
Strictly speaking, a domain name is not an independent intellectual property right, but in practice it is an important element of a company's commercial identity. Conflicts surrounding domain names usually touch on trademark and trade name law: the unlawful registration or use of a domain name similar to a protected trademark or a well-known trade name can be challenged through the courts or through extrajudicial procedures such as the CEPANI Procedure (for .be domain names) or the UDRP Procedure of the WIPO (for generic domain names).
IV. Protection of confidential information
14. Protection of trade secrets
In addition to the protection of intellectual property rights, the protection of trade secrets critical to many businesses. Trade secrets consist of valuable and confidential information that is not publicly known and can provide a competitive advantage. This information can range from technical know-how and production processes to customer data and strategic business plans.
In Belgium, the protection of trade secrets is governed by Title 8/1 of Book XI of the Code of Economic Law..
V. Enforcement of intellectual property rights
The existence of an intellectual property right is only as strong as the ability to enforce it. Belgian law provides right holders with various legal tools to establish, stop and obtain compensation for infringements.
15. The seizure of evidence on counterfeiting
The seizure of evidence on counterfeiting is a precautionary measure that allows the right holder, prior to or during legal proceedings, to secure evidence of infringement. At the request of the right holder, the court may appoint an expert who makes a detailed description of the allegedly infringing goods, processes or services, including samples and photographs, on site - at the premises of the alleged infringer, his customers or suppliers. The measure is governed by the Judicial Code. The seizure of evidence can be sought by unilateral petition, without prior notice to the opposing party, which makes it particularly effective as an instrument of surprise.
16. The cessation claim
The cessation action seeks the cessation of an infringement of an intellectual property right. It is a purely injunctive measure: it seeks to stop the infringement, not to compensate for damages, and can also be brought pre-emptively when infringement is imminent but not yet committed.
The cessation claim may be brought through ordinary proceedings on the merits before the company court. It can also be brought in an accelerated procedure on the merits before the president sitting as in summary proceedings, who then issues a final strike order. In cases of urgency, a preliminary strike order may additionally be sought via an actual interlocutory injunction, but this produces only an interim measure and not a final order. In both cases, the cease-and-desist order may be accompanied by a penalty payment per day of further violation. The strike action in IP cases is regulated by Articles XVII.26 et seq. WER.
17. Compensation
In addition to the cessation of infringement, the right holder is entitled to compensation for damages suffered. The calculation of damages in IP cases is governed by Article XI.335 IPR and can be determined in three ways: on the basis of the actual damages suffered (lost profits, reputational damage), on the basis of the profits made by the infringer as a result of the infringement, or at a flat rate on the basis of a reasonable license fee that the infringer would have had to pay if he had sought permission. The court may also take into account the moral damage suffered by the right holder, and may in certain cases allow an increase in compensation if the infringement was intentional.
Conclusion
Intellectual property law in Belgium offers a wide range of protection options for a variety of creations and innovations. In any case, it is important to obtain appropriate protection in a timely manner and to know how to enforce that protection when necessary. A lawyer specialized in intellectual property law can assist you in this regard.
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