On 7 November 2011, a Royal Decree was published in the Belgian Official Journal which sets forth a settlement procedure facilitating the destruction of counterfeit goods that were seized by the public authorities. The possibility of such a settlement procedure was foreseen in the Law of 15 May 2007 on the punishment of counterfeiting and piracy of intellectual property rights (Wet betreffende de bestraffing van namaak en piraterij van intellectuele eigendomsrechten/Loi relative à la repression de la contrefaçon et de la piraterie de droits de propriété intellectuelle) but required a Royal Decree to be implemented. According to the Federal Public Service of Economy, the new procedural rules should make the seizure and destruction of counterfeit goods more workable and reduce the cost for right holders.
Until now, seized counterfeit goods could only be destroyed following a criminal procedure. In contrast, the new settlement procedure permits the right holder to obtain the destruction of the goods without having to initiate criminal proceedings. This procedure is thus similar to the “simplified procedure” contained in Regulation 1383/2003 which applies to goods seized by customs authorities at an EU border. The new procedure, however, also applies to goods that were seized after they had been put on the Belgian market.
Under the new settlement procedure, the infringer will be presented with a settlement offer if he or she agrees to abandon the seized goods for destruction. To opt for a settlement, the infringer will be asked to sign an official report (proces-verbaal/procès-verbal). After the infringer signs the official report, the right holder will be informed of the nature and the amount of goods seized and the settlement offer that was made to the infringer. If the right holder agrees to waive the right to file a criminal complaint, the infringer will be ordered to pay a fine and abandon the goods. In addition, the infringer will bear the costs for storage and destruction of the infringing goods. If the right holder fails to respond within 10 working days, he or she will be deemed to consent to the settlement.
The settlement procedure only covers the criminal procedure (seizure and destruction of the goods). The right holder (or any other interested party) will still have the possibility to bring a civil claim for damages.
The Royal Decree entered into force on 7 November 2011.
