A product recall can also be obtained in injunction proceedings
In its decision of 7 April 2023, the Belgian Supreme Court confirmed the competence of the judge presiding over injunction proceedings to order the recall of products or copies that have already been put on the market.
In its decision of 7 April 2023, the Belgian Supreme Court confirmed the competence of the judge presiding over injunction proceedings (Stakingsrechter/Juge en cessation) to order the recall of products or copies that have already been put on the market.
Aside from “normal” proceedings on the merits, Belgian law also provides for the possibility of injunction proceedings in order to act more swiftly and efficiently against intellectual property right infringements and acts of unfair competition such as misleading advertising. Injunction proceedings are dealt with as if they were summary proceedings (in kort geding/en référé) but the decision is on the merits: in case of infringement an injunction i.e. the cessation of an infringing act is ordered. However, because of the swiftness, damages cannot be obtained in such proceedings. To obtain damages, a separate proceeding must be launched.
Discussion existed whether the judge presiding over injunction proceedings could issue an order to recall infringing products from the market.
In a decision of 14 March 2022, the Ghent Court of Appeal held that a recall was not possible in injunction proceedings. The Ghent Court was of the opinion that while the injunction judge would be able to order the cessation of the infringing distribution of advertising material or products, its competence would not extend so far as to be able to order the recall of such products from the market.
However, the Belgian Supreme Court did not agree and overturned this judgment. The Belgian Supreme Court stated that the judge presiding over injunction proceedings has the competence to order all measures that contribute to the cessation of infringement. Consequently, the injunction judge can also order a recall from the market of products that have already been distributed, to the extent that this measure prevents the infringement from continuing and having harmful effects even after its cessation has been ordered.
CAPE IP Law
8 September 2023