On 26 June 2018, the Brussels Court of Appeal ruled that the Van Honsebrouck brewery is not freeriding on the look and feel of Duvel beer, and is not engaging in misleading advertising or unfair competition.


The Duvel Moortgat brewery produces various well-known beers, including Duvel. In its current golden blonde version, Duvel was placed on the market in 1970. In 2014, the Van Honsebrouck brewery commercialised a new beer, Filou, at the request of Aldi. After Aldi stopped selling Filou beer, Van Honsebrouck decided to commercialise the beer by itself with a completely different look and feel. Since then, Van Honsebrouck has supplied Filou beer in a "Steini bottle" (similar to the bottle in which Duvel is sold) instead of a classic, elongated bottle. The label displays the name "Filou" in large red text, with a drawing of a boy with a hat and a catapult above the name. Wheat and hop stems surround the drawing of the boy.

Duvel Moortgat considered that Van Honsebrouck's Filou beer was freeriding on the look and feel of Duvel. Duvel Moortgat therefore introduced a claim against Van Honsebrouck before the President of the Commercial Court of Brussels on 10 August 2015, demanding that production and advertising of the Filou beer bottles with the modified design should cease. Duvel Moortgat based its claim on unfair commercial practices, parasitic competition and misleading advertising. The President rejected all of Duvel Moortgat's claims on 17 March 2016. Duvel Moortgat launched an appeal against this judgment before the Brussels Court of Appeal on 15 June 2016.

According to the case law of the Court of Cassation, copying as such does not qualify as an act of parasitic competition. In addition to the act of copying, the occurrence of an accompanying circumstance is also required. The law does not stipulate specifically what constitutes an accompanying circumstance. According to certain case law, an accompanying circumstance is at hand when a company takes over the look and feel of products with the aim of diverting the fame and goodwill of the products of another company, which have a commercial and thus a financial value, towards its own products.

According to the Court of Appeal, four conditions needed to be met here in order to have a case of parasitic competition:

  1. The design of Duvel must be sufficiently known to a significant part of the relevant public which is targeted (it must have a "distinctive character");
  2. The design of Duvel must hold a certain reputation, prestige, image or attraction;
  3. The reputation, prestige, image or attraction must be the result of the commercial efforts of Duvel Moortgat; and
  4. The freeriding by Van Honsebrouck must be intentional.

According to the Court of Appeal, the "average consumer" must be interpreted in the present case as a consumer of blonde speciality beers with the same normal, average attention as a consumer of normal pils beer. 

The Court of Appeal subsequently took the overall picture of the Duvel bottles and the Filou bottles into account in its assessment. The overall picture is composed of the "primary carriers" of the beer (the bottles with the label and the crown caps), together with the "secondary carriers" of the beer (the specially designed glass, the beer cases, the cardboard holders, the beer coasters and other accessories).

With regard to the primary carriers of the beer, the Court of Appeal observed important differences between the crown caps of the two beers. Notwithstanding the shared conceptual connotation of a "rascal", the Court of Appeal did not perceive any aural or visual association between "Duvel" and "Filou". The Court of Appeal furthermore took into account that other beers also use Steini bottles, a similar label design, the white–red–black colour combination of the label and a taste which aligns with the taste of Duvel.

Except for the beer carts, the Court of Appeal considered that the secondary carriers of the beer differ even more from those of Duvel. Unlike with other beers on the market, the design of the glass for Filou does not even align with the design of the glass for Duvel.

Based on the aforementioned analysis of the Duvel bottles and the Filou bottles, the Court of Appeal concluded that the average consumer can choose between the two speciality beers in a rapid and faultless manner, even when stores display the speciality beers alongside each other. Consequently, it was insufficiently established that Van Honsebrouck was freeriding on the look and feel of the Duvel bottle with its Filou bottle.

The Court of Appeal therefore ruled that Duvel Moortgat cannot monopolise the look and feel of the Duvel bottle by virtue of claiming unfair market and commercial practices, as the look and feel of the Duvel bottle contains too many elements equally and lawfully used on the Belgian market by competitors of Duvel for the same type of products.