Intellectual Property Law

Passing Off and Deceptive Advertising under Belgium Law

By Martha L. Arias

E-Commerce is bringing new meaning to advertising laws; governments are updating these laws and people are searching for them in their endeavor to expand businesses abroad.  Although most advertising laws have the same principles against deceptive and false advertising, some countries have particular rules not found in other jurisdictions. This article informs on Belgium?s advertising rules under the Trade Practices Law of July 14, 1971.

Belgium law on Trade Practices defines ?commercial advertising? as "any information which is disseminated with the direct or indirect aim of promoting the sale of a product or service to the public, regardless of the place in which or the medium through which it occurs." Article 19. Passing off is the practice of creating confusion, through commercial advertising, with other merchants? products.  Belgium has express rules against this practice, which is considered an unfair trade practice.  Trade Practice Law, Articles 20 § 3, and Article 54.  Thus, it is clear from the definition of commercial advertising that passing off is prohibited in advertising directed to the general consumer; it does not apply to advertising targeting businesses or other professional buyers.

The Trade Practice Law of July 14, 1971, only protects consumers against unfair practices.  This means, advertising that violates industrial property rights (or intellectual property as they are called in the United States) such as trademarks, patents, or utility designs, are not actionable under this law.  They would be actionable under the specific industrial property right provisions they are violating.  Therefore, passing off, as unfair commercial advertising, is actionable as unfair practice and as an act ?contrary to the honest customs.? Article 54.  

In addition to passing off, false or deceptive advertising is prohibited under Belgium law.  Trade Practices Law of July 14, 1971, Article 20 § 1, prohibits false or deceptive advertising with respect to the sale of products. False or deceptive advertising refers to product misrepresentations that deceive the public as to the characteristics or quality of goods.  Article 20 § 1 does not cover false or deceptive advertising of services.  Yet, experts claim they are covered under Article 54 as practices contrary to the honest customs.  The following are considered false or deceptive misrepresentations: (1) those concerning products origin; (2) exaggerations or puffing or representations that the products do not possess; and (3) misrepresentations about products compositions.    

The above rules against passing off, and false and deceptive advertising are the most common rules claimed against unfair advertising by or against e-commerce businesses.

Full post as published by IBLS Internet Law Blog on July 07, 2009 (boomark / email).