After being sued by the Securities and Exchange Commission (SEC), the Telegram platform has not given up its plans to enter Web 3.0. Indeed, through blockchain technology, Telegram will soon offer its 700 million users to buy usernames on The Open Network blockchain (1).
The TON blockchain originally meant Telegram Open Network, and the company behind it had managed to raise the sum of 1.7 billion euros. Recently, the domain name “casino.ton”, for example, had been sold for more than $200,000.
In fact, Pavel Durov, Telegram’s CEO, foresees many uses for the addition of web 3 technology on the application. Users could consider the possibility of a unique identifier that they could sell or trade on the app’s marketplace. This technology could also further secure the different channels that are present on the application. Telegram is considering the possibility of joining a chat channel. The implementation of technologies related to blockchain on the application would allow, among other things, to formalize these different channels.
If the release date of this marketplace is not yet determined it will be soon, given the announcement made by the founder of the platform. Indeed, the smart contract serving as a structure for this marketplace is still in free audit on GitHub, in order for developers to detect – if there are any – errors in the code.
October 21, 2022, Laboratoires Sterop S.A. v. Belaid Louahrani, Laboratoires Sterop LLC, Case No. D2022-2828 (1)
In a decision dated October 21, 2022, the UDRP complaint filed by the Belgian company Laboratoires Sterop S.A. (“Laboratoires Sterop”), targeting the domain name <sterop.net>, was rejected. A singularity of the dispute: it opposes Laboratoires Sterop to an Emirati company with a homograph name, Laboratoires Sterop LLC and its founder.
The complainant is a Belgian pharmaceutical group developing several ranges of pharmaceutical products worldwide: medical devices, dietary supplements, hygiene products, etc. It owns several “STEROP” trademarks, the oldest being registered in the Benelux since 1972 (renewed) and the most recent being registered in the United Arab Emirates since February 18, 2020, for products in class 5.
The disputed domain name has been registered since August 15, 2019, by the respondent company. The latter redirects to a website displaying a welcome message and indicating that the respondent’s activity concerns the sale of pharmaceutical products.
The respondent owns a semi-figurative “STEROP” trademark registered on March 1, 2020, in the United Arab Emirates for products in class 5, a registration date very close to that of the complainant’s prior trademark in this jurisdiction.
First recalling its seniority, the Belgian company then admits to having authorized a company called Laboratoires Sterop FZ-LLC to develop its scientific activities in the United Arab Emirates. However, it disputes having given any authorization to the respondent company, stating in particular that the two companies are distinct. The complainant insists that it has no relationship with the respondent and has already put it on notice, twice, to cease using the term “STEROP”.
To counter the complainant’s allegations, the respondent maintains that the disputed domain name was registered with the unequivocal consent of the Belgian company, resulting from a commercial agreement between the parties.
The respondent also claims that Laboratoires Sterop FZ-LLC partially owns Laboratoires Sterop LLC, and that these two companies operate in distinct territories of the United Arab Emirates. Similarly, the respondent states that one of the directors of the Belgian company is actually a shareholder holding 20% of the shares of Laboratoires Sterop FZ-LLC, and therefore indirectly of Laboratoires Sterop LLC.
Moreover, the respondent explains that it operates as a drug distributor whilst the complainant operates as a drug manufacturer. Thus, their activities being complementary, the respondent would have been one of the complainant’s distributors, and their two trademarks would have coexisted perfectly until the complainant decided to terminate the commercial relationship.
Further arguments are successively appealed by the parties. The complainant argues that, among other things, it did not authorize the filing of the respondent’s trademark beforehand, but noticed it once it was done. It also indicates that the respondent is now marketing products competing with its own and should no longer use the “STEROP” trademark. The complainant also provided several documents to try to substantiate its arguments, however in French while the procedure is in English. Therefore, are not acceptable.
In any case, it is evident that the expert cannot render a decision – on the basis of these elements giving either party truly right or wrong. Indeed, it seems more like a verbal joust between two former partners who are now competitors.
In a rather brief analysis, and without going into all the points raised by the parties, the expert considers that, even if the unequivocal consent of the complainant has not been proven, it is impossible to conclude that the respondent has no legitimate rights or interests in the disputed domain name, in light of the evidence provided. To resolve this point, a thorough analysis would be required, which does not fall within the scope of the UDRP procedure, which strictly covers cybersquatting cases.
It is still common, however, that former partners attempt to resolve their conflicts through this means.
Lastly, even if the complainant should have known that its complaint had no chance of succeeding, the expert does not consider this a case of Reverse Domain Name Hijacking (in French “détournement inversé de nom de domaine”), where the complainant would have filed its complaint solely to harass or harm the respondent.
Therefore, it is important to remember that disputes deserve to be treated with a global vision. If the dispute involves several aspects (conflict over a trademark, domain name, unfair competition, etc.), seeking the appropriate procedure is imperative. If two parties dispute a trademark, which is reflected in a domain name, it is advisable to act simultaneously on both, through a judicial procedure, or at least to obtain a decision on the trademark before turning to the UDRP administrative procedure to try to recover the domain name.
WIPO, D2022-3002, October 27, 2022, Fenix International Limited c/o Walters Law Group vs. private registry operator, Privacy Protect, LLC (PrivacyProtect.org), privacy service provided by Withheld for Privacy ehf, Global Domain Privacy Services Inc. (PrivacyGuardian.org), Andrew Rew, Okoth Nigel, Chaker Ben Smida, sofma, John Harbin, Keith Allan, Amar Bizwer, Najib Lakhdhar, Bouabdellah, Jamal McMillan, Atay Rabby Chisty, IVAN KOBETS, MINERAL, maddis jones, Philipp Muller (1).
When you own a highly fabricated brand, it is tempting, for economic reasons and dispute management, to target as many domain names as possible in a UDRP complaint, in order to get a response to the various infringements encountered with a single decision. However, it is important to remain vigilant about the strength of the link between the designated domain names and to demonstrate it precisely so that the consolidation is accepted.
Thus, in a decision of October 27, 2022, the UDRP complaint filed by Fenix International Limited (“Fenix”) seeking to be awarded 14 domain names that are believed to be imitating its ONLY FANS brand was rejected.
The complainant owns the domain name <onlyfans.com> and several “ONLYFANS” trademarks registered in 2019, including European Union and United Kingdom trademarks.
The www.onlyfans.com website has experienced rapid growth in recent years: with more than 180 million registered users, it now ranks 177th in the Alexa Top ranking the most popular websites in the world. It is a platform for posting and subscribing to audiovisual content. Erotic and pornographic content proves successful there.
The disputed domain names, registered after Fenix’s trademarks, have some apparent links to the platform, such as <onlyfans-leaked.com> or <celebrityonlyfans.com>, whilst others reproduce only parts of the brand: the initials “O” and “F”, the term “ONLY” or the term “FAN”.
These domain names point to websites offering services similar to those of the complainant, namely adult video content. The UDRP procedure states that when several disputed domain names appear to have a link, they can be studied through a single procedure.
In order for the acceptance of a complaint targeting multiple defendants, it must be proven that the domain names are subject to common control, whether it be a single person or a group of individuals acting together , and that consolidation serves the interests of each parties, leading to a fair and equitable decision. It is the complainant’s responsibility to provide proof on the issue of common control of the disputed domain names. Therefore, in order to demonstrate this link, the complainant has put forward numerous arguments.
The complainant bases its request for consolidation on several arguments: the disputed domain names direct to websites offering pirated content from its www.onlyfans.com website; the various sites have a general design strongly similar to its official site, whether in terms of header, font, or logos used; they offer the same services and prices; the names are registered through three registration offices; and they have a common structure: some are made up of a generic terms followed by the “ONLY” part of the earlier brand, whilst others interchange these elements.
In addition, the complainant alleges that, given the addresses indicated during the registration of some of the disputed domain names, located in Tunisia, the probability of common control was all the more conceivable. The complainant further states that lots of the contact information was incorrect during the registration of the domain names. However, the expert notes that the mere provision of incorrect information does not prove common control, particularly given the regularity of such occurrences.
Lastly, the complainant mentions that one of the defendants had already been the subject of a UDRP complaint, for which Fenix had been granted its consolidation request.
Two defendants responded to the complainant’s arguments. The holder of the domain name <baddiesonly.tv> explained that the websites have a similar appearance because they are based on a “KYS” script, which provides a typical layout that will be very similar from one site to another. They explained that their domain name was reserved through an agency, so they did not choose the registration office and that nothing connects them to the other domain names, such as the registrant information or the registration date.
A second defendant, holder of the name <hornyfanz.com>, also explains that they have no connection with the holders of the other names targeted by the complaint.
To ground its decision, the expert notes that the complainant has not proven the common control of the different domain names, even though it was their responsibility to substantiate their allegations.
Essentially, the presented annexes only showed websites with adult entertainment content. Therefore, according to the expert, they were not enough to prove that the disputed domain names were linked. In fact, looking at the sites in detail, the expert noticed that they all more or less differ from each other. The expert explains that even if some of the sites could be considered to be very close and therefore under common control, it does not prove that the other invoked names are linked to this group of names.
Moreover, the expert notes that the complainant contradicts themselves by stating at one point that three registration offices are involved when in the amended complaint, they mention five. In any case, this does not show common control between the names.
Furthermore, the combination of the term “ONLY” with another generic term cannot demonstrate common control of the domain names since “ONLY” is also a generic term. To this point, one could argue that the complainant could have argued the fame of their “ONLY FANS” brand in connection with erotic and pornographic content, to argue that the terms “ONLY,” “FANS,” and the initials “OF” can evoke their brand.
Finally, the expert notes that the names were registered over a two-year period and that the defendants all have different email addresses.
All these reasons led the expert to simply reject the complainant’s complaint, while reminding them that the admission of a complaint against multiple defendants is not automatic. The constitution of such a complaint significantly increases the burden of proof on the complainant, which must be taken seriously. In this case, Fenis’ analysis indeed seemed fanciful.
Artificial intelligence (AI) generally refers to a scientific discipline. According to the European Parliament, artificial intelligence (AI) is a tool that machines use to simulate human-like behaviours such as reasoning, planning, and creativity (1). One key feature of AI is machine learning, which allows it to learn from its own experiences, giving it autonomy.
The introduction and rapid development of generative AI in the legal industry have raised concerns among legal professionals. Currently, these generative AIs are capable of producing creative works based on user instructions and collected data. Given the widespread use of these technologies in professional settings, the legal implications, particularly those relating to copyright law, raise concerns.
The use of generative AI and copyright
The use of generative AIs such as ChatGPT (dialogue generator) or Midjourney (image generator) raises concerns about how copyright law applies to the generated content. It is necessary to establish who is entitled to ownership of the content produced in this manner and whether it qualifies for copyright protection. ChatGPT is an advanced language model developed by OpenAI. It uses a deep learning algorithm known as GPT (Generative Pre-trained Transformer) to generate human-like responses to text inputs.
Should we expect copyright protection for AI-generated works?
The framework for protecting works of mind is laid out in Article L.112-1 of the Intellectual Property Code, which specifies that an item must be a formalised and original intellectual creation in order to be protected.
The Court of Justice of the European Union (CJEU) has evolved the definition of originality over time to reflect advancements in technology and digital media. Taking a more objective approach in the Infopaq (2) case in 2009, the CJEU defined originality as “an intellectual creation that is an expression of the author’s own intellectual creation.” In addition, the CJEU does not rule out the possibility that a work can be considered original even if it was influenced by technical factors during its creation (3).
The CJEU has also confirmed that it is possible to create original works by involving a machine or device in the creative process (4). In this case, it did not involve AI but photography, a domain that was long considered by scholars to not be eligible for copyright protection due to the mechanical nature of the creation process.
Therefore, not all works involving the contribution of AI can be considered original under the current understanding of originality in positive law. To what extent the user has participated in the creative process is a balancing act that must be performed to determine whether or not the work can be considered original.
Several cases illustrate the international dimension of these questions, sometimes reaching different conclusions. For example, in a dispute between Tencent and Shanghai Yingxun Technology (5), the Chinese court ruled in favour of copyright protection for a work generated using an algorithmic programme. This decision supports the extension of copyright protection to works generated by AI. On the contrary, the United States Copyright Office confirmed on February 21, 2023 (6), the absence of copyright protection for images produced using the AI Midjourney, concerning the comic book “Zarya of the Dawn ” by New York artist Kris Kashtanova.
Ownership of AI-generated content
Copyright law protects the intellectual creations of individuals. It grants authors the right to express themselves through their works and recognises their awareness and intent during the creative process. It is clear at this time that AI does not currently have these specific qualities.
AI is not recognised as an author in the current legal framework, and according to existing copyright laws, the attribution of authorship is reserved for humans who can be identified as the creators of the work produced by AI. These individuals are acknowledged as authors based on their influence on the outcome and their active participation in the creative process.
The jurisprudence, both at the European and French levels, has not yet pronounced on the question of who, between the user and/or the AI developer, will hold the rights to an original work created using AI. However, the terms of service of OpenAI (the developer of ChatGPT) state that the rights to the content belong to the users. This contradiction highlights the urgent and definitive need to address these questions.
There are several hypotheses currently under consideration to ensure the adequate protection of AI and its development. These include exploring potential changes to copyright law, such as redefining the originality requirement or even establishing a framework dedicated specifically for AI.
The High Committee for Literary and Artistic Property (CSPLA) released a report (7) that examines various viewpoints on copyright ownership while delving into the fields of artificial intelligence and culture. The report explores copyright ownership in relation to artificial intelligence and culture and suggests adopting an English law-based model that establishes specific regulations for “computer-generated works.” The aim is to address the implications of these concepts and provide clarity within copyright frameworks.
Copyright infringements and generated AI content
Since works generated by AI often rely on existing content, there is a possibility that they could constitute infringements of copyright. The absence of mention of the sources used by ChatGPT to generate content illustrates the risk of infringement of third-party rights.
The ongoing legal conflict involving photographer Robert Kneschke and AI entity LAION has raised concerns regarding potential copyright infringements. Kneschke uncovered that some of his photographs were present in LAION’s database and promptly requested their removal. The case has been escalated to the District Court of Hamburg, making the progress of this case worth monitoring.
It is important to note that many AI systems do not provide guarantees regarding the absence of infringement of third-party rights in the generated outputs. As a result, users are advised to refer to the terms of use of the specific AI system to understand the responsibilities and liabilities related to copyright and potential infringement issues.
If the rights holders of the collected data find that their rights are violated, they have the option to pursue legal action based on infringement or unfair competition. This highlights the necessity for a distinct framework governing the use of AI, as demonstrated by OpenAI, which already outlines in its terms of service that users are responsible for their use of the tool and must ensure that it does not infringe upon the rights of third parties.
Risks Related to Result Reliability, Privacy, and Right to Image
The use of AI carries additional risks beyond copyright infringement. The reliability of the generated results can be a concern, as can the potential risks to privacy and the right to an individual’s image. In the case of AI-generated content, such as ChatGPT, the results may contain inaccurate, discriminatory, or unjust information. However, according to the European Parliament, AI-generated content cannot be classified as “Your Money Your Life” (YMYL) content, but verifications should still be performed.
At the same time, the European Union is currently considering legal initiatives to regulate AI systems, such as the European Commission’s proposed AI Act (8) regulation and two directive proposals published on April 21, 2021, and September 28, 2022. These legislative frameworks aim to address the issue of civil liability for AI systems.
AI’s use of personal and confidential information
The malfunction of ChatGPT that resulted in a data leak in March 2023 illustrates the challenges related to data confidentiality. Similarly, a study by security publisher Cyberhaven, as reported by “Le Monde Informatique (9),” raised concerns about the dangers connected with employees using ChatGPT. The study highlighted the risks of data leaks by employees, including sensitive project files, client data, source code, or confidential information.
In order to operate as intended, conversational agents like ChatGPT use and collect data, although they are not specifically designed for personal data collection. The nature of the collected data needs to be examined to determine whether it is protected or not. If the data is protected, the developer of the AI has an obligation to seek permission from the data rights holders.
Some countries adopt a cautious position regarding the processing of personal data by ChatGPT. In Canada, the Office of the Privacy Commissioner has initiated an investigation against OpenAI (10). In Italy, the President of the Italian Data Protection Authority, GPDP, temporarily banned access to ChatGPT on March 31, 2023 (11), accusing it, among other things, of not complying with European regulations and lacking a system to verify the user age. Since then, modifications have been made, and ChatGPT is available again in Italy.
Indeed, OpenAI’s privacy policy does not appear to comply with the requirements of the GDPR and the Data Protection Act, particularly regarding the absence of information about the retention period of processed data.
The National Commission for Informatics and Liberties (CNIL) published guidelines in 2021 to ensure that Chatbots respect individuals’ rights (12). It also issued guidelines and recommendations in 2021 (13) on the use of cookies and other trackers governed by Article 82 of the Data Protection Act (14) (transposition of Article 5.3 of Directive 2002/58/EC “ePrivacy” (15)).
The goal of these recommendations and guidelines is to ensure informed consent from users and provide transparency about trackers. The CNIL also has the power to impose sanctions in cases of non-compliance by relevant actors. It is crucial for the involved parties to ensure adherence to the requirements of the General Data Protection Regulation (GDPR) and the ePrivacy Directive.
These potential legal hurdles must be considered if we are to make ethical and responsible use of this technology, and concerns such as copyright infringement, data collection, and ownership must be carefully considered by all parties involved in the creation and use of AI.
The Current Legal Framework of AI and Future Perspectives
The European Union intends to establish an artificial intelligence regulatory framework. In 2020, the European Parliament passed resolutions on artificial intelligence and its applications (17), and new European proposals aim to ensure the smooth operation of the internal market. The goal is to make the Union a world leader in developing ethical and trustworthy AI that protects ethical principles, such as fundamental rights and Union values.
The European Regulation Proposal: “AI Act”
On April 21, 2021, the European Commission proposed new rules to set uniform rules (18) for the commercial release, deployment, and use of artificial intelligence. The legislative process is long, though, so the project has not yet been put into action.
The European Parliament, the Council of the European Union, and the European Commission will need to adopt the text in the same terms. For now, the European Parliament has just reached a provisional agreement on the aforementioned regulation on April 27, 2023, which was voted on May 11, 2023. Once adopted, it will take some time before it comes into effect.
The proposed regulation focuses on transparency, accountability, and safety to promote the ethical and responsible development of AI within the European Union. The goal is to ensure trustworthy AI. The proposal includes a risk-based approach:
Unacceptable risks : AI systems that are prohibited because they contradict the values of the Union (e.g., facial recognition AI).
High-risk AI : These AI systems present risks to the health, safety, or fundamental rights of individuals (e.g., biometric identification AI). These systems are subject to strict obligations for developers, providers, and users.
Limited risks : Specific transparency obligations are established for these AI systems towards users. Users must be aware that when using AI systems such as Chatbots, they are interacting with a machine and must make an informed decision to proceed or not. As conversational agents are not categorised as high-risk AI systems, they will not be subject to the strict requirements applicable to high-risk systems.
Negligible risks : The proposal does not require intervention for these AI systems due to their minimal or non-existent risks to the rights or safety of citizens.
As mentioned earlier, the negotiating team of the European Parliament has reached a provisional agreement on the regulation, which includes generative AI (19). In this regard, “general-purpose AI systems,” capable of performing multiple functions, are distinguished from “foundational models,” which are techniques based on a large amount of data and can be used for various tasks. Providers of such models, like OpenAI, would be subject to stricter obligations, including the adoption of risk management strategies and ensuring the quality of their data.
The European Parliament announced in a press release (20) that the Members of the European Parliament have adopted the negotiation mandate project. This project still needs to be approved by the entire Parliament in a vote scheduled for June 12th to 15th.
Furthermore, on September 28, 2022, the European Commission published two directive proposals aimed at establishing rules on liability adapted to AI systems. These directive proposals seek to evolve the law of civil liability for AI systems. However, neither of these proposals specifically addresses issues related to intellectual property infringement or the corresponding liability framework.
Proposal for a Directive on Liability for Defective Products
The European Commission proposes a revision of the directive on liability for defective products (21) to adapt it to technological developments in recent years. The aim is to overhaul Directive 85/374/EEC of July 25, 1985 (22).
This revision proposes several changes, including redefining the concept of a product, reevaluating the concept of damage, imposing requirements on companies to disclose certain information, and altering the burden of proof for victims, including the introduction of specific presumptions and apply to liability for defective products without restriction and cover products stemming from AI or any other product.
Proposal for a Directive on Liability in the Field of AI
The second proposal for an AI directive aims to align the rules of non-contractual civil liability with the field of AI (23). This proposal addresses legal uncertainties identified by the European Commission for businesses, users, and the internal market. Multiple factors present challenges, including the enactment of rules of civil liability, the identification of the party responsible for the damage, the establishment of evidence, and the risk of fragmentation concerning applicable legislation.
The Commission’s cautious approach is demonstrated by provisions that shift the burden of proof in favour of victims of AI-based products or services. As a result, victims will have the same level of protection and may be less discouraged from filing civil liability claims. Thus, civil actions based on fault for damages caused by AI systems can be facilitated.
The risks in terms of liability for the actors involved in these fields are high and require particular attention. The proposed regulation provides for the establishment of a deterrent sanction system. Indeed, any breach of the established rules may be subject to an administrative fine of up to 20 million euros, or 4% of the company’s total annual turnover.
Companies and AI system providers are advised to closely monitor legislative developments and comply with future regulatory requirements to avoid any litigation.
Conclusion
While many options are being considered to establish AI regulations, the contractual aspect should not be overlooked. Contracts can complement or compensate for deficiencies in the forthcoming legislative framework. By leveraging this tool, a comprehensive strategy can be devised to regulate the use of AI, its consequences, the dynamics among various stakeholders, individual responsibilities, and other relevant aspects.
As users of AI systems, it is important to take certain precautions. These include establishing an internal written policy, being well-informed about the terms of use of AI systems, avoiding the disclosure of confidential information during their use, and verifying the reliability of the information provided. The role of general terms and conditions is vital, as they offer valuable information, such as the applicable law and jurisdiction, the extent of the service provider’s liability, indemnification, and disclaimer clauses. As a result, AI providers must prioritise the careful drafting of these terms and conditions.
Dreyfus, N. [Chine] Le droit d’auteur à l’épreuve de l’intelligence artificielle. Village de la Justice. 1e décembre 2021.
United States Copyright Office, Zarya of the Daws (Registration #VAu001480196), 21 février 2023.
Rapport du CSPLA. Mission intelligence artificielle et culture. 27 février 2020.
Proposition de règlement du Parlement européen et du Conseil établissant des règles harmonisées concernant l’intelligence artificielle (législation sur l’intelligence artificielle) et modifiant certains actes législatifs de l’union, Commission européenne, 21 avril 2021, COM/2021/206 final.
Article 82 de la loi n° 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés, modifiée par Ordonnance n°2018-1125 du 12 décembre 2018 – art. 1
Directive 2002/58/CE du Parlement européen et du Conseil du 12 juillet 2002 concernant le traitement des données à caractère personnel et la protection de la vie privée dans le secteur des communications électroniques (directive vie privée et communications électroniques)
Règlement (UE) 2016/679 du Parlement européen et du Conseil du 27 avril 2016, relatif à la protection des personnes physiques à l’égard du traitement des données à caractère personnel et à la libre circulation de ces données, et abrogeant la directive 95/46/CE (règlement général sur la protection des données).
Résolution du Parlement européen du 20 oct. 2020 (2020/2012(INL)) ; (2020/2015(INI)) ; (2020/2014(INL)) ; Résolution du Parlement européen du 19 mai.2021 (2020/2017(INI)) ; Résolution du Parlement européen du 6 oct. 2021 (2020/2016((INI)) ; Résolution du Parlement européen du 3 mai. 2022 (2020/2266(INI))
Proposition de règlement du Parlement européen et du Conseil établissant des règles harmonisées concernant l’intelligence artificielle (législation sur l’intelligence artificielle) et modifiant certains actes législatifs de l’union, Commission européenne, 21 avril 2021, COM/2021/206 final.
Proposition de directive du Parlement européen et du Conseil relative à la responsabilité du fait des produits défectueux, COM (2022) 495 final, 28 sept. 2022
Directive 85/374/CEE du Conseil du 25 juillet 1985 relative au rapprochement des dispositions législatives, réglementaires et administratives des États membres en matière de responsabilité du fait des produits défectueux
Proposition de directive du Parlement européen et du Conseil, COM (2022) 496 final, 28 sept. 2022
Customs seizures of counterfeit goods increased significantly in 2022. While French customs intercepted 5.6 million counterfeit items in 2020, seizures increased to 11 million in 2022. On February 23, 2023, the Ministry of Public Accounts stated, “Counterfeiting no longer spares any sector of the economy1.”
Customs seizures are a crucial measure to protect industrial property rights against counterfeits. In addition to financial losses, counterfeit goods can damage a company’s brand image and reputation in the marketplace. Customs, therefore, play a crucial role in preventing the importation of counterfeit goods into their territory.
The customs detention procedure
A procedure with multiple implications
France is a pioneer in customs detention because it was the first EU Member State to classify imported counterfeit goods as illegal goods. Thus, the Longuet law2 codified this particular procedure into French law. According to the Regulation of 12 June 20133, the laws of the European Union also apply. However, items released for free circulation pursuant to the regime of the specific destination and items without commercial character contained in the personal luggage of travellers are not subject to detention.
This is a necessary procedure for strengthening the protection of one’s intellectual property right(s) by allowing customs officers to temporarily block goods suspected of infringing on them. During this detention, the rights holder can request that counterfeit goods be destroyed if certain conditions are met, or even file a legal action.
The prerequisite for filing an intervention request
This is a highly structured and regulated procedure. It begins with the rights holder (or licence beneficiaries under certain conditions) filing a request for customs intervention with the competent customs service in France or the European Union. This allows the market to be monitored and the applicant to be notified in the event of a counterfeit capture. This is a preventive and free (as of the July 29, 20224 decree) step that can be taken even if the applicant is unaware of any infringement of his or her right(s). The customs intervention request is valid for one year and can be renewed with a simple written request. It must include information on authentic goods and common counterfeits, as well as identification of rights and their holders.
On the one hand, the national intervention request allows customs officials to detain goods that have already crossed French borders and have been cleared throughout French territory. The European intervention request, on the other hand, allows customs authorities to detain third-party goods in customs prior to their introduction into European Union territory.
The effectiveness of the detention request stems from its submission to the appropriate customs services. This enables rights protection to be tailored to each vector of counterfeit introduction, such as targeting cells in ports and airports to control commercial freight, brigades to conduct roadside checks on people and vehicles, specialised services for postal checks and express freight, and even Cybercustoms, a service in charge of tracking fraud on the Internet.
The customs seizure procedure
Evaluation of the similarity between authenticity and suspected forgery
Customs officers do not have expertise, but it is their responsibility to identify products that appear to be counterfeit. The customs service that carried out the detention subsequently notifies the applicant. In order to confirm or refute the suspicion of counterfeiting and determine the subsequent course of action, this notification includes photos and the quantities detained. If this set matches, they then proceed to a customs seizure.
A procedure subject to defined deadlines
According to Article 3 of Regulation (EEC) of June 3, 19715, the customs seizure procedure allows goods suspected of counterfeiting to be detained for a maximum of 10 days (3 days for perishable goods), which can be extended by 10 days on a reasoned request. This time frame allows for the goods to be inspected.
Procedure for Simplified Extrajudicial Destruction
The allotted time also allows for the applicant to request a simplified destruction procedure. If applicable, three conditions must be met. First, the applicant must confirm in writing that he agrees to the destruction of the goods under his control. Second, he must be able to ensure the authenticity of the goods by providing detailed expertise. Finally, the presumed counterfeiter (also known as the “holder” of the counterfeit goods) must confirm in writing to customs services within 10 working days of being notified of the detention that he wishes to express himself regarding the destruction of the goods. If no action is taken, it will be assumed that he agrees to this destruction. If he objects, the holder is notified and given an additional 10 working days to take legal action or take probative measures for the same purpose.
The potential legal ramifications of the customs seizure
When a counterfeit is discovered but the simplified destruction procedure is not used, the rights holder has the following options:
Appeal to the territorially competent court to obtain authorization for conservatory measures,
Justify the filing of a complaint with the Public Prosecutor,
Take legal action in criminal or civil court.
For this purpose, the rights holder may request that the customs professional secrecy be partially lifted in order to obtain additional information (names and addresses of the recipient, sender, declarant, and holder of the goods, customs regime, origin of the goods, and destination), provided that this information is used for the purposes specified in Article 21 of the Regulation of June 12, 20136.
What happens in case of unjustified detention?
In the event of an unjustified or abusive detention, the rights holder may be responsible for paying all costs incurred by both customs and the owner of the goods. Furthermore, customs cannot order the rights holder to compensate the owner of the goods if the detention is unjustified. However, whether the detention is justified or not, they can always ask the rights holder to cover the storage costs. In most cases, they do not. Such compensation could only be made at the request of the owner of the goods, through a counterclaim, or through a separate legal procedure. In this case, the owner may seek compensation for his entire loss.
Transit policy
This regime is a World Customs Organisation measure that allows goods to cross customs borders without being subject to customs duties or other taxes. On the one hand, internal transit refers to the movement of goods within the community area that are intended to be marketed in the transit country. As a result, customs officers can seize the goods and hold them for a set period of time while waiting for the rights holder’s opinion. External transit, on the other hand, refers to the movement of goods originating in and destined for third countries to the European Union where they will be marketed from one point on the community territory to another.
This customs regime creates a legal fiction in which the goods in question do not exist in the community territory through which they transit. Despite this “non-existence” on the community territory, it seems necessary, as in the case of community transit, to allow customs authorities to use this detention measure to ensure that goods suspected of infringing intellectual property rights do not fraudulently use the customs regimes considered. However, the CJEU7 has applied the fiction of customs law.
This decision is devastating because it establishes the principle that a third-party good in transit, originating in and destined for a third country, can only be detained for suspicion of counterfeiting if it is intended for sale on the European Union market. Customs officers can thus clearly detain counterfeit goods only if the rights holder provides proof of concrete indications of future placement on the Union market.
Dreyfus & Associates Law Firm: intermediary between rights holders and customs
The landscape of industrial property rights is shifting as e-commerce expands and counterfeiting becomes more sophisticated. The owners of intellectual property must now incorporate customs monitoring into their already extensive brand monitoring efforts. In this sense, the request for customs intervention is a complex operation that establishes and conditions the effectiveness of the seizure measure, which is its logical and technical continuation.
The law firm Dreyfus & Associates offers its expertise to its clients, proposing assistance in exchanges with competent customs services.
We have a network of agents throughout the community area to monitor incoming and outgoing goods movements.
We also have a specialised department at the disposal of its clients for the surveillance of industrial property titles, which can make the request for intervention to customs on behalf of the rights holder.
Finally, Dreyfus & Associates allows its clients to participate in customs officer training to improve the identification of genuine articles and, by extension, counterfeit goods.
In response to the digital age’s demand for creativity and innovation, the European Union has recommended a new EU designs framework to address current issues and future challenges. Through this proposal, they seek to refine existing regulations by adding clarity, enhancing definitions of key terms, and aligning them with individual country laws. If passed, the legislation could foster better protection for designs while simultaneously creating balance between legitimate interests involving intellectual property rights – all in an effort to curb counterfeiting activity worldwide.
An overview of European Design Law: Protecting Creativity and Innovation
Models and designs are integral to product artistry and creativity and can be protected by European law. Article 3 of Regulation 6/2002 outlines all the characteristics that can be used to define a design – including lines, contours, colours, forms and textures. Currently, designs and models must be novel and exhibit some degree of individuality for them to be considered protectable.
The European law on designs and models is an essential tool for protecting creativity and innovation within the European Union. Not only does it help to encourage innovation and competition by providing adequate protection to creators and businesses, but it also encourages them to invest in the research and development of new products and designs, which ultimately stimulates economic growth and job creation.
Registration of a model or design with the European Union Intellectual Property Office (EUIPO) gives the holder exclusive rights over the ornamental or aesthetic aspects of an object for up to 25 years. The European design regime also provides protection for up to three years for unregistered community designs.
To benefit from this protection, the design or model must have an individual characteristic. This implies that the general impression that the design or model gives to the informed user must be different from the general impression that pre-existing designs or models give. When assessing this criterion, it is important to take into account the degree of freedom enjoyed by the creator at the time of the creation of the design or model, since this freedom will determine whether the latter achieved a real creative performance or not. Finally, the design or model must also be considered new.
This protection allows the holder to take action against the reproduction and sale of products with an identical appearance.
Furthermore, European design law provides broader and faster protection than national systems. Once registered, a design is protected throughout the EU, obviating the need for separate registration in each member state.
Considering its importance to European economic actors, it has become necessary to adapt this system to current and future trends arising from the digital era.
Context of the changes proposed by the Commission
In November 2022, the Commission presented a proposal that is currently under negotiation. This « EU designs framework » aims to revise the regulation and directive on community designs and models and is set to come into effect by the end of the year, or early 2024.
The objective of the designs framework is to modernise and improve current provisions by removing outdated rules, enhancing legal security, and clarifying design and model rights management. As technology advances and more businesses operate online, it becomes clear that current regulations are limited and must adapt to new forms of creation to protect designers and their digital creations. This directive aims to harmonise national laws and procedures to strengthen interoperability and complement the community design and model system.
Finally, the framework would help to complete the single market for replacement parts by including into the directive a repair clause, which is similar to the one already present in Regulation 6/2002.
Key changes proposed by the Commission
The « EU designs framework’s » primary aim is to provide clarity within protection regulations. This would result in terminological alterations that replace terms such as “Registered Community Designs” with “Registered EU Designs” (REUD) and “Unregistered Community Designs” with “Unregistered EU Designs“.
Another major change introduced by the directive is the removal of protection for unregistered community designs and models at a national level. In addition, it also stipulates that protection for community designs and models only starts when they are registered in the dedicated register.
It requires visibility by conditioning the protection of UDCs on the visible character of the appearance characteristics presented in the community design registration application. During the procedure of submitting a community design, the representations must clearly identify all the details of the design or model deposited.
The Commission also highlights the possibility of combining design protection with copyright protection, as established by European case law.
The proposed changes aim to broaden the definition of designs and models to include movement, transition, or any type of animation of product features as well as the definition of products by introducing a digital component and allowing for anything related to graphic interfaces, if necessary. Accordingly, the proposed framework defines “product” as “any object, including digital products, that can be manufactured or produced in limited quantities, or that can be sold, rented, or made available on the market.”
The Commission defines the boundaries of protection and grants an exception that allows for critical and parodic use of designs and models. Conversely, it deems 3D printing a form of use that requires authorization from the design or model rights holder. Importantly, this is a continually-advancing technology that facilitates the creation of 3D objects via digital files.
In addition, the proposal introduces new provisions. Firstly, it removes the unity-of-class principle, allowing for the submission of several REUD requests in the same application, even when designating multiple classes. Secondly, it makes the repair clause for spare parts permanent. This clause provides a transitional period of 10 years to safeguard the interests of existing design or model holders if the member state allows for design or model protection for spare parts at the time the new directive comes into force. However, it will only have an immediate legal effect on future registrations. The proposed framework also permits right holders to affix a specific symbol Ⓓ, informing the public that the product is registered.
Finally, on a procedural level, the Commission proposes to make optional provisions mandatory in order to increase predictability and coherence with the EU system. « The EU Designs Framework » also establishes a presumption of validity, which should be adopted by all EU Member States. This way, the validity conditions of the title would be presumed to be met in the event of an infringement. It also allows one to request a deferral period of 30 months from the date of filing the application. Ultimately, it stipulates that all member states must provide administrative actions for nullity with respect to registered designs and models in front of national intellectual property offices.
Conclusion
The Commission’s proposal for this directive is justified by a legal framework that has remained unchanged since the late 1990s and early 2000s, before the internet and the rapid growth of technology. As a result, it was necessary to address certain deficiencies and gaps in the protection regime to ensure its adaptation to the digital age and, more generally, its sustainability. This reform could encourage the protection of designs and models and, therefore, applications for registration within the European Union. It will also strengthen and limit protection, with the objective of striking a better balance between legitimate interests. Ultimately, it could potentially (and surely) improve the fight against counterfeiting.
About Dreyfus
We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets. We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.
This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.
In a world where the lines between different artistic disciplines are becoming increasingly blurred, fashion designers often draw inspiration from art to bring their collections to life or to promote their brands.
This issue echoes the recent dispute between the brand Zadig&Voltaire and artist Julian Charriere over a promotional video for the brand that features a flaming fountain, similar to the one captured by the artist in his “And Beneath it all Flows Liquid Fire” video in 2019.
Many fashion designers are inspired by works of art to create their collections and advertising campaigns. However, some of them cross the line and copy the work of established artists almost exactly, without giving them the credit they deserve. This practice is not only ethically questionable, but can can also be harmful to the original artists in terms of violating their intellectual property (“IP”) rights.
Legal issues of intellectual property in fashion and art
Copyrighting protects original works of the mind, whether they are literary, musical, graphic, plastic or photographic creations. Fashion designers may be tempted to take inspiration from a work of art to design a new piece or an advertising campaign, but it is essential to consider the legal issues related to IP.
Plagiarism, or mindless copying of a work, is a violation of copyright. In the case of fashion, it can mean using a work of art without permission to create prints, patterns or even the shape of a garment. If the copying is obvious, the original artist can sue for damages.
The fine line between fashion and art is even more blurred as many luxury brands have launched their own art foundations such as the Cartier Foundation or the Louis Vuitton Foundation.
However, it is important to note that copyright does not protect ideas, only their expression. Thus, taking inspiration from a work of art in order to create a fashion piece is not necessarily illegal, so long as the creation is suitably original and does not directly copy the work in question. Additionally, some artists occasionally can collaborate with fashion designers, such as Louis Vuitton, who recently worked with Japanese artist Yakoi Kusuma to produce a new collection as well as to transform the Louis Vuitton store in Paris, now decorated with a monumental silhouette of the artist.
Consequences of intellectual property infringement
IP infringement can have negative consequences for artists and the fashion industry.
Plagiarism robs original artists of recognition and fair compensation for their work. When a piece of work is copied without permission, the original artist is not credited or paid for their work. This can lead to a loss of income for artists, causing them to abandon their creative work or settle for less than their talent.
In addition, intellectual property infringement hinders innovation in the creative industry. When artists are not rewarded for their work, it can discourage innovation and the creation of new works. Companies that copy original works do not need to devote resources to research and development of new ideas, as they can simply copy those of others.
Finally, intellectual property infringement can have a negative impact on the brand image of companies that engage in this practice. Consumers are increasingly aware of the importance of ethics and corporate social responsibility. When a company is accused of plagiarism or intellectual property infringement, it can damage its brand image and consumer confidence in the company.
In summation, the phenomenon of plagiarism of art by fashion raises complex questions and considerable stakes, both artistically and legally. The line between inspiration and copying can sometimes be unclear, and the fashion industry seems to navigate these murky waters in search of creativity and innovation.
While some see this appropriation as a democratization of art and a way to enrich fashion, others see them as a threat to the value and integrity of original works. At a time when legislation is struggling to adapt to these issues, it is the responsibility of fashion designers and consumers to commit to ethical fashion that respects art and its creators.
It is critical to continue the dialogue between the different actors involved and to rethink the mechanisms of intellectual property protection to ensure a fair balance between creative freedom and respect for copyright. Creators, as well as artists, can call upon professionals such as Industrial Property Attorneys, with their networks of lawyers specialized in intellectual property, to ensure that no IP rights are infringed upon.
We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets. We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.
This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.
The French Public Investment Bank (BPI France) has set up a program to help SMEs (small and medium-sized enterprises) and ETIs (Ethical Trading Initiatives and mid-sized companies) who are seeking or looking for help in developing and structuring their intangible assets. These intangible assets include patents, designs, trademarks and software.
What are the terms of the “Intellectual Property Strategy Diagnosis”? How does Dreyfus & Associés intervene in this respect?
The BPI’s “Intellectual Property and Intangible Assets Strategy Diagnosis” is aimed at SMEs and ETIs registered in France with a workforce of less than 2 000 employees. It is important to note that a subsidiary of a group with more than 2 000 employees will not be eligible for this program.
What is the purpose of this program?
The purpose of this offer of support is to finance an analysis and consulting service provided by an Intellectual property Expert for the protection, structuring and development of Intellectual Property. The cost of such an analysis is generally estimated to be between 3 000 and 10 000 euros (excluding VAT), for a duration of three to ten days, and it can extend for up to 3 months depending on requirements to be completed. The BPI finances up to 80% of the experts’ services. This program will benefit Startups, SMEs and ETIs due to the low cost that is being offered to allow them to engage with an Intellectual Property Expert who is registered with the BPI.
More specifically, the BPI provides support that includes an inventory of existing intangible assets, the implemented valuation actions, and an analysis of the company’s maturity in conjunction with understanding the challenges of building these intangible assets.
In retrospect, the “Intellectual Property Strategy Diagnosis” allows the company to obtain a comprehensive strategy of recommendations to be adopted for the management and valorization of assets.
What is the role of Dreyfus & associés, Intellectual property experts?
Dreyfus & associés is registered as an Expert Consultant with BPI France. This registration allows firstly Dreyfus & associés to advise you on the relevance of such a diagnosis. If necessary, the firm establishes a commercial proposal that can position your company in its context and explains the issues to be addressed during the diagnosis.
In order for you to submit the application to the BPI, your company will have to create an account on the BPI website and then constitute and submit a complete file.
The file needs to include the online application form, the Expert’s proposal (unsigned), the company’s latest tax return, tax and social security certificates dating back to less than three months, the company’s up-to-date capitalization table and finally, the Declaration of Aid for the use of consulting and support services in the field of innovation.
When the file is accepted, BPI France will send you an IP Strategy and Intangible Assets Valuation Diagnosis contract to be signed electronically by the company’s legal representative.
At the end of the diagnosis, the Expert will provide the company and BPI France with a final report including a summary of the context, the issues, the development paths and the recommendations. This final report will be made available within 15 working days.
The « IP Strategy Diagnosis » program set up by the BPI is a real opportunity for small and medium-sized companies seeking to develop their intangible assets. It allows them to obtain a complete expertise from qualified and accredited intellectual property experts at a significantly lower cost.
Do not hesitate to contact us for more information.
We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets. We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.
Intellectual property (IP) litigation is an important tool for protecting and enforcing rights in IP assets, such as patents, trademarks, and copyrights. When an IP owner’s rights are infringed or someone else is using their IP without permission, the owner may have the right to take legal action against the offender. IP litigation can help the owner to protect their valuable IP assets, as well as their reputation and market position.
The benefits of IP litigation include:
1. Protection of IP Rights IP litigation is an effective way to protect your IP assets from infringement. It allows you to enforce your IP rights and stop unauthorized use of your IP, while also deterring future infringers. By filing a lawsuit, you can also seek damages or other relief to make up for any losses caused by the infringement.
2. Strengthening of IP Rights Through the process of IP litigation, you can also strengthen your IP rights. This is because the court may issue an injunction that requires the infringing party to stop using your IP or to pay you for any profits they made from using your IP. This can help to bolster your IP rights and make it more difficult for others to infringe on them in the future.
3. Deterrence of Unlawful Use The threat of IP litigation can also act as a deterrent to others who may be considering using your IP without permission. By demonstrating that you are willing to take legal action to protect your IP rights, you can create a deterrent effect that can help to discourage others from infringing on your IP.
4. Valuable Legal Remedies IP litigation can also provide you with valuable legal remedies that can help you to recover the costs of defending your IP rights. In some cases, you may be able to recover damages or other relief to compensate you for any losses caused by the infringement.
In addition to these benefits, IP litigation can also provide you with a sense of satisfaction that you are protecting your IP rights and standing up for what is right. It can be a powerful way to make sure that your IP is respected and protected. So how can you make the most of IP litigation? Here are a few tips:
1. Understand Your IP Rights The first step to making the most of IP litigation is to understand your IP rights. You should be familiar with the different types of IP protection and what rights they provide, as well as any related laws or regulations. This will help you to identify potential infringements and determine whether or not you have the right to take legal action.
2. Seek Professional Advice It is also important to seek professional advice when it comes to IP litigation. An experienced IP lawyer can provide you with guidance on your legal rights and remedies, as well as help you to pursue a successful legal action.
3. Take Action Quickly Acting quickly is key when it comes to IP litigation. You should take action as soon as you become aware of a potential infringement, as the longer you wait, the more difficult it may be to prove your case.
4. Gather Evidence The more evidence you have to support your case, the stronger it will be. This means gathering evidence such as documents, emails, and other records that show the infringement occurred.
By following these tips, you can make the most of IP litigation and protect your valuable IP rights.
We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets. We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.
The legal landscape of the tech industry is constantly changing, making it difficult to keep up with the latest developments in IT law. Companies must stay up to date with the latest laws and regulations to ensure that their businesses remain compliant. Understanding the latest trends in IT law can help companies ensure that they are taking advantage of the latest legal opportunities and protecting their intellectual property.
One of the most important trends in IT law is the increasing focus on data privacy. As technology has advanced, companies have begun collecting and storing more information about their customers than ever before. In response, governments around the world have implemented new regulations to protect consumer data and ensure that companies are held accountable for how they store and use customer information. Companies must understand these laws and make sure that their practices are compliant. Another important trend in IT law is the emergence of cloud computing.
Cloud computing allows companies to store and access data remotely, eliminating the need for physical storage devices. However, this also creates a new set of legal issues, as companies must consider the legal implications of storing and accessing data in a cloud environment. Companies must be aware of the applicable laws and regulations in order to ensure that their use of cloud computing is compliant. Finally, IT law is also increasingly focusing on cyber security. Companies must be aware of the legal requirements for protecting their networks and data against cyber attacks. Companies must also be aware of the legal implications of any cyber security breaches that may occur. Understanding the latest trends in cyber security law can help companies ensure that they are taking the necessary steps to protect their networks and data.
So, how can companies leverage these trends in IT law? Firstly, they should ensure that they are up to date with the latest laws and regulations. Companies should also consider the legal implications of any new technologies they are using, such as cloud computing or cyber security solutions. Companies must also make sure that they are taking the necessary steps to protect their networks and data against cyber attacks. Finally, companies should consult with an experienced IT lawyer to ensure that they are taking advantage of the latest legal opportunities and protecting their intellectual property.
We offer our clients a dedicated and unique experience of expertise that is necessary for the exploitation of intangible assets. We will also endeavor to keep you informed and up-to-date about intellectual property and digital economic issues through our articles and newsletters written by the Dreyfus Legal Team.
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After being sued by the Securities and Exchange Commission (SEC), the Telegram platform has not given up its plans to enter Web 3.0. Indeed, through blockchain technology, Telegram will soon offer its 700 million users to buy usernames on The Open Network blockchain (1).
October 21, 2022, Laboratoires Sterop S.A. v. Belaid Louahrani, Laboratoires Sterop LLC, Case No. D2022-2828 (1)
Introduction
Customs seizures of counterfeit goods increased significantly in 2022. While French customs intercepted 5.6 million counterfeit items in 2020, seizures increased to 11 million in 2022. On February 23, 2023, the Ministry of Public Accounts stated, “Counterfeiting no longer spares any sector of the economy1.”
In response to the digital age’s demand for creativity and innovation, the European Union has recommended a 
In a world where the lines between different artistic disciplines are becoming increasingly blurred, fashion designers often draw inspiration from art to bring their collections to life or to promote their brands.
The French Public Investment Bank (BPI France) has set up a program to help SMEs (small and medium-sized enterprises) and ETIs (Ethical Trading Initiatives and mid-sized companies) who are seeking or looking for help in developing and structuring their intangible assets. These intangible assets include patents, designs, trademarks and software.
