Intellectual rights are characterised by the territoriality rule. This principle means that a patent, breeders' rights, a trademark, design or model is only valid in the country in which protection was obtained. In concrete terms, these rights must be registered in countries in which you want to exercise them and prohibit third parties from using your invention, plant variety, trademark, or design or model.
But you also have to ensure that you will be the first person to apply for protection in these countries and that your trademark, invention or model will meet the protection conditions in these countries, such as:
Please note that you must submit your applications to the different national offices on the same day and at the same time - which is not really realistic.
To overcome this problem, most countries in the world recognise a right of priority, in accordance with the Paris Convention.
In virtue of this right, if you filed an initial application in a country that is a member of the Paris Convention, you have a certain period during which you can also apply for protection for the same trade mark or invention, or the same model, in another member country of the Convention, without losing your rights.
Duration of the right of priority
The right of priority lasts for six months for trademarks and designs and models, and for 12 months for patents and plant variety rights.
During this six or twelve months period after the date of the first submission of a patent, trademark, or design or model application, applications filed subsequently in the Member States of the Paris Union cannot be rejected due to events that take place during this period. The filing of patents for identical inventions by third parties, the disclosure or implementation of an invention, the selling of copies of a design or model, or the use of a trademark, within this priority period, will not be taken into account when examining the conditions (novelty, availability, etc.) to be met for the filing of a trademark, patent, design or model in a country within the six or twelve months following the initial application in another country , if both these countries are members of the Paris Union.
Nine months after an initial patent application in Belgium, you also decide to apply for a patent in France or Japan. You must, then, meet the novelty conditions in these countries in relation to the date on which your initial application was made in Belgium, and not in relation to the date of the application in France or Japan. Any disclosures of your invention during this nine-month period will not invalidate your patent application.
Similarly, for trademarks, the filing a trademark for an identical sign or the use of this sign by a third party in a country, during the six months following your initial trademark application in another country, will not be taken into account when judging the validity of your subsequent application in this second country.
The right of priority meets not only a legal objective, but also a strategic and economic objective for a business. For example, after submitting an initial patent application, you can take the time to look at the markets in other countries in order to determine where your patent application would be most lucrative.
You normally have to apply for the right of priority. So, for each subsequent application during this priority period, you must mention the date (and provide proof) of your first application.
Digital access service (DAS) is a digital system that provides for a safe exchange of priority documents and similar documents between national patent offices.
This method acts as an alternative for the supply of a certified copy of an earlier patent application of which the priority is called upon.
The legal basis for this accession is Article 4 §5 of the Royal Decree of December 2, 1986 concerning the application, grant and maintenance of invention patents.
Member states of WIPO can join both as a depositing state and as an accessing state.
For the time being, Belgium will only join as an accessing state on 1 November 2020.