29 July 2014Jurisdiction reportsMichiel Rijsdijk

Modernising the Benelux Court of Justice

The most recent example of this is the European patent, which has resulted in the creation of the unitary patent and the accompanying Unified Patent Court. The Benelux Court of Justice (BCJ), set up by Belgium, the Netherlands and Luxembourg, will be undergoing a similar renovation, possibly saving applicants for trademarks valuable time and money.

After the creation of the intergovernmental economic union of the three Benelux countries, the BCJ was founded in 1974, having its seat in Brussels. Currently, the BCJ is responsible for delivering rulings in judicial matters concerning officials working for the Benelux union, and giving pre-judicial decisions on matters relating to Benelux laws (including the Benelux Convention on IP, or BCIP).

Although the BCJ’s role is similar to that of the Court of Justice of the EU, it is not as extensive. The number of rulings/decisions given by the BCJ averages about five a year.

To increase the role of the BCJ, but mainly to modernise it (as the institution has entered its 40th year of existence), the Benelux countries have chosen to allocate new tasks and responsibilities to the court. These involve mainly the possibility for applicants for trademarks to appeal to the court in matters relating to their trademarks and the rulings in this respect of the Benelux Office for Intellectual Property (BOIP).

Under the current system, the application for a Benelux trademark is centralised and regulated by the BOIP. Although it is recommended to use a trademark attorney, an online application for a trademark can be easily filed, which if successful will grant the applicant a trademark for a period of ten years. With more than 22,000 trademark applications a year in the Benelux countries, the BOIP handles a substantial number of applications.

If an application is unsuccessful, meaning that the BOIP disagrees with the applicant on the admissibility of the application, the applicant has three courts to appeal to: the Hague, Brussels or Luxembourg. These legal proceedings can be time-consuming and costly, like any other. This has also led to three different interpretations of the BOIP’s decisions, depending on where the applicant appealed.

New protocol

Once the new protocol on modernising the BCJ has been ratified by the parliaments of all three countries, all this is to change. Instead of having to seek justice in one of the three courts, applicants can soon call upon the BCJ in Brussels. This will save time and money, and probably take some stress off the three courts. Applicants will also be sure that their situation will be interpreted no differently from any case before them, increasing legal certainty. The court will have two chambers: the Second chamber which handles initial appeals, and the First chamber, which will rule on appealed rulings of the Second chamber.

"The ease and costs of appealing before a court are reduced, which motivates applicants to appeal in cases that they would have laid to rest in the current system."

Although a special committee researched and established the new protocol, the forthcoming workload may be too much for the BCJ to handle. The committee expects that about 25 extra cases a year will be handled by the BCJ as a result of the protocol. Although this may not seem excessive, it is still five times the number of cases handled at the moment. And if the aforementioned advantages appear to be true, this number will increase quickly. This will be a problem for the BCJ, in particular because it needs to be staffed by judges from the High Courts and Supreme Courts of the Benelux countries who have sufficient knowledge of the BCIP and are able to communicate in both Dutch and French.

A ‘suction effect’ may also be created by implementing the protocol. The ease and costs of appealing before a court are reduced, which motivates applicants to appeal in cases that they would have laid to rest in the current system. Since the BCJ judges are busy enough with their regular jobs in their home countries, which they keep in addition to their duties at the BCJ, this is not an encouraging omen.

Be that as it may, the possibility and method of seeking justice will be improved, which is generally a positive development. Applicants for trademarks in the Benelux union will soon find that not only the application procedure is unified and simple, but the same will go for appeals before a court on decisions given by the BOIP. We can only hope the BCJ will be prepared should it suddenly be swamped with work because of this.

Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk