LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre, Elvinger Hoss Prussen
2.6 Related Rights A trade mark can also be protected by copyright or related rights – eg, in the case of logos. The corre - sponding legislation will apply independently. A trade mark owner cannot prohibit the use by an individual of his/her name in the course of trade if such use is made in accordance with honest practices in industrial or commercial matters. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Pursuant to the Authors’ Rights Law, “authors’ rights protect original literary and artistic works, whatever their type, form or expression, including photographs, databases and computer programs”. To mention just a few examples, musical works, choreography and architectural works may therefore be protected under authors’ rights. Industrial designs are also entitled to authors’ rights protection to the extent they are origi - nal. The protection will be automatic (as for all original works). 3.2 Essential Elements of Copyright Protection A work must be original and must be fixed in a tangible medium (which can be digital or dematerialised) in order to qualify for authors’ rights protection. The orig - inality criterion is not defined by the Authors’ Rights Law, but is defined by case law. A work is original when it bears the imprint of its author’s personality and goes beyond technical know-how. This is a sub - jective notion, different from novelty, and is assessed by the courts on a case-by-case basis. The originality of a work must not be confused with its artistic value, Pursuant to the Authors’ Rights Law, authorship belongs to the person or persons under whose name the work is disclosed, in the absence of proof to the contrary. The Authors’ Rights Law provides that where a com - puter program is created by an employee in the per - which should be irrelevant. 3.3 Copyright Authorship
The owner of a Benelux trade mark that has a reputa - tion in the Benelux territory is also entitled to prohibit the use of a sign which, without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the reputation of the trade mark (regard - less of whether or not the sign is used in relation to goods or services that are identical or similar to those for which the earlier trade mark is registered). Even if the sign is not used as an indicator of the origin of goods or services, the owner of an earlier Ben - elux trade mark can prohibit the use of the sign in the course of trade, without due cause, that would take unfair advantage of or be detrimental to the distinctive character or the reputation of the earlier trade mark. 2.4 Use in Commerce Under the Benelux Convention, five years after the date on which a trade mark is registered, the trade mark owner can be requested to demonstrate that the trade mark has been put to genuine use in the Benelux territory for the goods or services for which it is registered. Use of the trade mark by a licensee is of course considered as use of a trade mark. Use of a trade mark in a form that differs in elements that do not alter its distinctive character from the form in which it was registered is also considered as genuine use of the trade mark. Supporting documentation includes invoices, screen prints of websites or advertising brochures showing the trade mark. Most of the time it is necessary to establish that the defendant has used the sign as a trade mark (but see also 2.3 Trade Mark Rights ). A trade mark owner may also prohibit the use of a subsequent sign as a trade or company name if such use infringes its exclusive rights (see 2.3 Trade Mark Rights ). 2.5 Notices and Symbols Under the Benelux Convention, there is no require - ment to use a symbol denoting that a trade mark is registered. The use of a symbol like ® does not pro - vide any protection and has no legal value in Luxem - bourg.
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