LUXEMBOURG Law and Practice Contributed by: Emmanuèle de Dampierre and Florentine Frias, Elvinger Hoss Prussen
7. Initiating Trade Mark and Copyright Lawsuits 7.1 Timeframes for Filing Infringement Lawsuits The Benelux Convention does not lay down any specific time limit for bringing an action for trade mark infringement, nor does Luxembourg law provide that authors’ rights infringement actions must be brought within a specific time limit. However, infringement claims are subject to limitation periods for civil actions, of ten years as from the knowledge of the infringement acts between merchants or between merchants and non-merchants, or 30 years between non-mer - chants. 7.2 Legal Claims for Infringement Lawsuits and Their Standards Trade Marks Before the civil courts, the owner of a registered Benelux trade mark may take action against any infringer, in particular on the grounds listed in Article 2.20 of the Benelux Convention. The trade mark owner can challenge the viola - tion of any of the exclusive rights conferred by the Benelux Convention to a trade mark owner, such as: • the use, in the course of trade, of a sign iden - tical to the trade mark for goods or services identical to those for which the trade mark is registered; or • the use of an identical or similar sign for goods or services identical or similar to the goods or services for which the trade mark is registered, if there is a risk of confusion on the part of the public.
The owner of a well-known trade mark renowned in the Benelux can only request the invalidity of a trade mark application or a trade mark in accordance with the provisions of the Benelux Convention. The Benelux Convention also provides legal claims to the trade mark owner where the earlier trade mark has a reputation and the subsequent sign is used (in relation to goods and/or servic - es, or not) without due cause and takes unfair advantage of, or is detrimental to, the distinctive character or reputation of the trade mark. Authors’ Rights An authors’ rights holder benefits from two legal avenues in case of infringements of their authors’ rights: civil actions and criminal actions. In practice, civil actions are much more common to pursue infringement. Authors’ rights infringement is constituted when a third party uses the monopoly (ie, exclusive rights) granted to the authors’ rights holder over an original work without any authorisation from the authors’ rights holder, and no exception to authors’ rights may apply. An infringement of authors’ rights exists even if it was unintentional. Infringement occurs when the elements, or even a single element, that make up the originality of a work are reproduced in another work, even if there is no danger of con - fusion between the two works. Specific authors’ rights claims may also be brought before the criminal courts as follows. • If a third party does not comply with the ban on removing or altering any rights manage - ment information in electronic form, or on distributing, broadcasting, communicating to
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