Unfair Trade Practices

The law on unfair trade practices is designed to protect free competition as well as consumers' rights. The fundamental principle is that everyone is free to enter into the business of his choice and to compete in Belgium in any market at his discretion. A trader may thus lawfully attempt to attract the customers of his competitors. However, certain methods of competing and attracting customers are prohibited in Belgium under the rules of unfair trade practices. This means that persons engaged in trade or business must comply with certain rules of "fair play", and, more specifically, "fair trade practices".  

Fair trade practices were historically regulated at a national level but are increasingly subject to harmonising efforts made at the EU level.  It is thus essential to closely monitor the developments at the EU level, which Van Bael & Bellis is particularly well-placed to do in view of its renowned expertise in European law. 

Van Bael & Bellis offers a full range of services in the field of trade practices law. These include the screening of clients' advertising and other promotional programmes in order to ensure their compliance with the rules governing trade practices, the drafting of clients' in-house manuals on advertising and promotion, the monitoring of changes to the trade practices legislation at both Belgian and EU levels, as well as representation and advocacy in cease-and-desist actions and other legal proceedings before the Commercial Courts and the Courts of Appeal.

Van Bael & Bellis has extensive expertise in the field of trade practices law.  Members of our firm have been involved in cases involving a large variety of trade practices under the Belgian Trade Practices Act ("TPA"), including distance selling, joint offers, sales at a loss, misleading or disparaging advertising, comparative advertising, refusal to sell, luring away of personnel, luring away of clientele, third-party inducement of contractual breach, slavish copying, and violations of the Belgian Competition Act such as abuses of a dominant market position, which are also deemed to constitute unfair trade practices.

We also have particular trade practices expertise in the life sciences field where specific rules apply in addition to the TPA, such as the 1964 Medicines Act, the 1995 Royal Decree on Information and Advertising for Medicines for Human Use, the 1993 Royal Decree on Samples, etc. Examples of trade practices that we have dealt with in this area include misleading and disparaging advertising for medicines, prohibited comparative advertising for medicines, direct-to-consumer advertising for prescription medicines via the Internet, prohibited inducements to health professionals and hospitals, etc.

As a result of this depth of experience, the firm combines a full range of skills in major litigation and advisory work.

Litigation

Van Bael & Bellis has been involved, inter alia, in the following representative trade practices litigation:

• acting for a U.S. beverages manufacturer in a case against a competitor who challenged a promotional campaign of the client, alleging a prohibited joint offer, distance selling, and unfair contractual clauses (including advice to the client on how to redesign the campaign in compliance with the TPA in order to ensure the continuation of the campaign);
• acting for a multitude of U.S. and European pharmaceutical companies in cases against competitors who engaged in (a) misleading, disparaging and prohibited comparative advertising for their own medicines or (b) violations of the 1993 Royal Decree on Samples or (c) prohibited inducements to health professionals and hospitals;
• acting for a Belgian manufacturer of telephone directories against the Belgian incumbent telecommunications operator Belgacom in several cases involving abuses of dominant position (including refusal to sell) and misleading advertising;            
• acting for a Belgian manufacturer of telephone directories against a competitor in several cases involving misleading advertising, luring away of personnel, third-party inducement of contract breach and slavish copying;     
• acting for a Belgian distance selling company in the first ever cross-border injunction proceedings initiated by the UK Office of Fair Trading before the Belgian commercial courts on the basis of the Injunctions Directive (98/27/EC) for breaches of the Belgian and English implementation of the Misleading Advertising Directive (84/450/EEC). 
• acting for a U.S. pharmaceutical company against a manufacturer of a topical cream in a case involving parasitic competition, misleading advertising, prohibited comparative advertising, passing off, use of a misleading domain name, unlawful use of metatags, creation of confusion between traders, and unlawful use for a dissimilar product of a sign that is similar to a well-known trademark;
• acting for a U.S. food company against a competitor in a case involving a prohibited joint offer;
• acting for the owner of a diamond mine against a diamond trader in a case involving alleged abuse of a dominant market position and an alleged abuse of law.