CMS Expert Guide on Preliminary Injunctions in IP in Belgium

Claims for cessation and claims for measures which contribute to the cessation

No. 

Strictly speaking no.

However, for a PI requested in the context of summary proceedings, there is an urgency requirement. Accordingly, if the applicant waits too long, the court will find that there is no urgency and refuse the application for a PI. 

For a PI requested by means of ex parte proceedings, which is almost never awarded, the applicant must even show extreme urgency.   

In the vast majority of the cases, parties apply for a final injunction by means of injunction proceedings “as summary proceedings”, in which there is no urgency requirement. 

In summary proceedings, within a few weeks to months.

In ex parte proceedings, within a few days.

A final injunction by means of injunction proceedings “as summary proceedings” can be obtained within a few months. 

Yes.

In summary proceedings, the applicant needs to show that the case is urgent, that it has a prima facie valid IP right which is prima facie being infringed, that the balance of interests is in its favour, and that the PI indeed has a preliminary character (the decision of the president may not affect the later decision on the merits).

In ex parte proceedings, the applicant must show in addition to this that the case is extremely urgent, and that even a minimal delay would lead to irreparable damage. 

In injunction proceedings “as summary proceedings”, the applicant must substantiate that it has a valid IP right which is being infringed. No urgency must be proven. 

In theory yes. However, ex parte proceedings are only possible in extremely exceptional circumstances in which it has to be shown that even a minimal delay would lead to irreparable damage. In practice, ex parte PI’s are almost never awarded. 

In the event an injunction is issued, it is possible to recover the “legal fees”, which consist of the fees payable to the bailiff and some attorney fees. However, the successful party will not be able to obtain compensation for all the fees that it actually paid to its attorney. The attorneys’ fees for which the prevailing party can claim compensation are fixed in a statutory fee schedule, which are well below the actual fees incurred. 

No.  

Yes.  The remedies against a PI do not suspend the effect of the PI.

Appeal proceedings against a permanent injunction by means of injunction proceedings “as summary proceedings” usually take about nine months to a year. 

The PI will be enforceable per se. The applicant must obtain an official copy of the court decision (expédition/uitgifte). This official copy will be served upon the other party by the bailiff. As from the date of service, the decision will have full effect. 

Requesting the court to make the injunction order subject to penalty payments in case of non-compliance. 

Yes.

Yes, in case of summary proceedings and ex parte proceedings.

Therefore, it is often more efficient to request a final injunction by means of injunction proceedings “as summary proceedings”: these are effectively proceedings on the merits, leading to a decision on the merits, but which are handled “as summary proceedings”.