Extensive business and intellectual property (IP) protection in Flanders

The Competition College of the Belgian Competition Authority will automatically approve any merger or acquisition that results in a company or group of companies with a combined market share of less than 25%. Mergers or acquisitions that reduce the competitiveness of the Belgian market, or a significant part of it, will be declined.

There are 5 phases to the filing of the notification of a merger or acquisition:

1. First phase – the notification is determined to be acceptable or inadmissible.
2. Second phase – the Competition College performs further investigations, if necessary, and submits a revised decision.
3. Simplified procedure – parties may apply for a simplified procedure.
4. Appeal – parties may appeal the College’s decision before the Court of Appeal.
5. Restrictive practices – if specific business practices restrict competition, they may be prohibited and result in fines.

Intellectual property rights play a crucial role in stimulating innovation and creativity. Several legal mechanisms for protecting various kinds of intellectual property at the Belgian, Benelux and/or European levels are available. Let’s boil them down.

Trademark protection is provided for names, drawings, symbols, stamps, letters, figures, shapes, packaging, and any other sign or combination of these – used by a manufacturer or merchant to identify and distinguish their goods. Trademark rights in Benelux countries are generally conferred by the first registration and not by the first use of the trademark. But to avoid abuses, several exceptions grant a priority right to the first user.

The application for registration is submitted to either the Belgian administration or to the Benelux Office for Intellectual Property in The Hague (Netherlands). Any trademark protection sought in Belgium will apply to all three Benelux countries: the Netherlands, Belgium and Luxembourg.

Apart from a Benelux trademark, there is also the possibility of obtaining an EU trademark, which grants protection in all EU member states. An EU trademark application must be filed with, and is granted by, the Office for Harmonization in the Internal Market (OHIM) in Alicante, Spain.

Copyright – also called ‘auteursrechten’ or ‘author’s rights’ – protects the original expression or presentation of artistic or literary works, publications, software, applied art, etc. In Belgium and Flanders, it is valid for up to 70 years after the death of the author or the last surviving author. It includes:

• the right to control the method of reproduction and communication of the work;
• the right to have authorship known;
• the right to decide when the work will be disclosed;
• the right to oppose modification of the work.

Patent protection is available for inventions that are new, involve an inventive step and are useful for industrial applications. It can be obtained for:

• a new product;
• a new process;
• a new application of known means; or
• a combination of known means.

Patent holders have the right to exploit, grant licenses to or assign the patent, with some exceptions. In Belgium and Flanders, patent protection is granted through registration and lasts for 20 years.

Product features such as lines, contours, colors, shapes, textures and/or materials of the products itself and/or ornamentation can be offered protection under design and model rules. Protection will only be provided when the design is new and has an individual character.

As with trademarks, there is a Benelux system that coexists with a European community system. To be protected, Benelux designs and models must be registered. Protection is available for a renewable term of 5 years with a maximum term of 25 years.