In its decision of 25 November 2011, the Belgian Supreme Court stated that counterfeit seizure proceedings, which are ex parte proceedings, may not be initiated on the basis of assumptions about the counterfeit, if such assumptions are not supported by documentary evidence. The court confirms that it is not possible to obtain the permission for a counterfeit seizure in relation to software on the basis of an anonymous tip-off.
The Business Software Alliance (B.S.A.) is an association which represents several international software companies, such as Microsoft Corporation and Adobe Systems. One of the tasks of the B.S.A. in Belgium is to co-ordinate the important fight against counterfeit software. Software is protected by the Belgian Copyright and Software Act of 30 June 1994. Copying software without the consent of the copyright owner constitutes an act of counterfeit and can give rise to severe civil and criminal sanctions. The fight against piracy is an important issue for Belgian and European legislators and therefore several legal instruments are available to copyright owners.
One of the most popular legal instruments is counterfeit seizure. Article 1369bis of the Belgian Judicial Code allows the holder of almost any intellectual property right, who suspects that his rights have been infringed, to file an ex parte request with a Belgian court to obtain a 'descriptive seizure order'. The holders of patents, copyrights, neighbouring rights, database rights, designs and trademarks may thus obtain from the court the permission to enter the premises of the alleged infringer, unannounced, to collect evidence about the infringement and its scope. The intellectual property holders may also obtain injunctive relief measures, blocking any further distribution of the alleged counterfeit goods.
The legal proceedings to obtain the descriptive seizure were amended by the Act of 10 May 2007, which transposes the European Enforcement Directive 2004/48/EC into Belgian law.
To prevail, the plaintiff must show, first, that he is the holder of a prima facie valid intellectual property right and, second, that there are indications that his rights are being infringed.
The decision of the Belgian Supreme Court deals with such indications in a case where the members of the B.S.A. have obtained the authorization to proceed with the counterfeit seizure but have not provided documentary evidence indicating that software has unlawfully been copied. The B.S.A. sometimes obtains the authorization for a counterfeit seizure merely because of an anonymous tip-off about illegal software. On the basis of such a tip-off, the B.S.A. members have often found illegal software when searching the premises of the alleged infringer.
The Supreme Court has now ruled that the ex parte measures may not be granted by the lower courts if there is no documentary evidence about a possible infringement of the software producers’ copyrights. An anonymous tip-off does not justify the far-reaching effects of a counterfeit seizure. The mere fact that illegal software is found during the search is not sufficient to justify the counterfeit seizure post factum. Before being allowed to proceed with a counterfeit seizure, there must be documentary evidence that indicates that there might be illegal software.
This decision is important because it confirms that the rules of due process may not be set aside, notwithstanding the importance of fighting counterfeit.
