News

Introduction

The decision handed down by the French Supreme Court on February 18, 2026 (No. 23-23.681) forms part of a particularly significant line of case law in trademark law and contract law. It firmly reaffirms an essential rule that is often poorly anticipated by economic operators: the assignment of a trademark, even where it may be treated as a sale, does not automatically entail the transfer of the contracts governing its exploitation.

Through a dispute between a licensee-distributor and the purchaser of rights in a trademark, the French Supreme Court clarified the conditions under which licensing and distribution agreements may be enforced against an assignee. Although technical in appearance, this decision has considerable practical implications for any company exploiting intangible assets.

Analysis of the facts and contractual context

The case brought before the French Supreme Court arose in a complex economic and legal context, marked by several successive transactions affecting the company that owned the trademarks concerned, particularly in the context of insolvency and liquidation proceedings.

An economic operator benefited from a dual contractual relationship:

•  On the one hand, it held a trademark licence agreement, allowing it to exploit the distinctive signs owned by its contracting partner.
•  On the other hand, it participated in a selective distribution network, governed by a separate agreement setting out the conditions for marketing products under that trademark.

Following the transfer of the assets of the company that owned the trademarks, a new entity became the owner of the industrial property rights. The licensee-distributor then found that this new purchaser refused to supply it, which it interpreted as a wrongful termination of the contractual relationship. It therefore brought an action for contractual liability, seeking compensation for the loss allegedly suffered.

The licensee’s position: an extensive interpretation of the transfer of contracts

In support of its claim, the licensee developed a particularly structured argument based on an extensive interpretation of the mechanism for assigning trademarks.

According to the licensee, the assignment of trademark rights should be treated as a genuine sale of an intangible asset. On that basis, the trademark licence agreement should be regarded as a necessary accessory to that asset, in the same way as a lease attached to real estate. This analogy led to the argument that the assignee, having become the owner of the trademark, was required to guarantee the licensee peaceful enjoyment of it, which necessarily implied the continuation of the licence agreement.

The licensee also argued that the selective distribution agreement, which was in force at the time of the assignment, should follow the fate of the trademark, since it directly contributed to its economic exploitation.

This line of reasoning sought to establish that the transfer of the trademarks automatically entailed the transfer of the contractual relationships attached to them, thereby engaging the liability of the new purchaser in the event of termination.

The French Supreme Court’s decision: a restrictive approach to the transfer

The French Supreme Court dismissed the appeal and upheld the analysis adopted by the Bordeaux Court of Appeal, taking a particularly clear and rigorous position.

No automatic transfer of exploitation contracts

The Court recalled that the transfer of a business, including intellectual property rights such as trademarks, does not, unless expressly stipulated otherwise, entail the transfer of the contracts relating to their exploitation. This solution is consistent with the fundamental principle of the privity of contract, according to which a contract produces effects only between the parties that have consented to it.

In this case, the Court noted that neither the selective distribution agreement nor the trademark licence agreement had been expressly mentioned among the transferred items. Although the assignment deed referred to the company’s intangible assets, including trademarks and patents, it contained no reference to the continuation or assumption of these contracts.

This absence of an express provision was decisive: it excluded any automatic transfer of contractual obligations to the assignee.

Contractual interdependence between the trademark licence and selective distribution

The Court found that the parties had intended these two agreements to form an indivisible contractual whole, since the licence had been granted exclusively in consideration of the distributor’s approval within the selective distribution network. In other words, the right to exploit the trademark was directly conditional upon the licensee’s integration into that network.

In these circumstances, the absence of transfer of the selective distribution agreement necessarily entailed the absence of transfer of the trademark licence agreement. This contractual interdependence prevented any artificial separation of the obligations.

The Court concluded that the assignee, having not consented to the assumption of the distribution agreement, could not be regarded as a party to the licence agreement that depended on it.

No liability of the assignee

The direct consequence of this analysis is the complete absence of liability on the part of the assignee. Since it was not contractually bound to the licensee-distributor, it could not be subject either to a supply obligation or to any contractual obligation arising from the original agreements.

The refusal to supply the distributor therefore did not constitute a contractual fault, in the absence of any pre-existing legal relationship. The licensee’s claim for damages was accordingly dismissed in its entirety.

An essential clarification: the impact of insolvency proceedings

Finally, the Court specified that the successive insolvency and liquidation proceedings affecting the trademark owners had no bearing on the outcome. The disputed contracts had not been terminated, but they had not been transferred either. Their fate therefore remained governed by the ordinary principles of contract law.

Practical lessons for companies

This decision calls for increased vigilance in all transactions involving intangible assets. It serves as a reminder that the economic value of a trademark is not limited to its title of ownership, but depends closely on the contractual relationships that structure its exploitation.

For assignors, it is essential to identify precisely the contracts linked to the trademark and to organise their transfer expressly. Failing this, a substantial part of the value of the asset may disappear.

For purchasers, a thorough legal audit is indispensable. The absence of transfer of contracts may significantly limit the ability to exploit the trademark, particularly where there is no distribution network.

For licensees and distributors, this decision highlights the need to anticipate assignments contractually by providing mechanisms for the continuation or regulated termination of contractual relationships.

Legally securing trademark transfers

Current practice requires a structured and rigorous approach. It is essential to include precise clauses in assignment deeds relating to the transfer of contracts, clearly identifying the obligations assumed by the assignee.

Contractual drafting must also anticipate situations of interdependence or, conversely, provide for the autonomy of contracts in order to avoid uncertainty. The consent of co-contracting parties must be sought where necessary, particularly where intuitu personae (personal to the parties) clauses are involved.

Finally, a global analysis of the contractual ecosystem surrounding the trademark is essential in order to secure the continuity of its exploitation.

Conclusion

The decision of the French Supreme Court of February 18, 2026 (No. 23-23.681) establishes a clear principle: the assignment of a trademark does not, unless expressly stipulated, entail the transfer of the licensing and distribution agreements connected to it. This decision reinforces the need for precision in the drafting of assignment deeds and requires a strategic approach to intangible assets.

It serves as a reminder that a trademark is only one element of a broader framework in which contractual relationships play a decisive role in value creation.

Dreyfus & Associés assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus & Associés works in partnership with a global network of attorneys specializing in Intellectual Property.

Nathalie Dreyfus with the support of the entire Dreyfus team

Q&A

1. What is the difference between a trademark assignment and a trademark licence?

A trademark assignment entails the transfer of ownership of the distinctive sign to a third party, who becomes the new holder of the rights. By contrast, a trademark licence is merely an authorisation to exploit the trademark: the owner retains ownership of the trademark but allows a third party to use it under contractually defined conditions. This distinction is fundamental because it determines the rights and obligations of the parties, as well as their liability.

2.What are the risks of poorly drafted trademark licence agreements?

Insufficiently precise drafting may have significant consequences, such as:

•  uncertainty as to the scope of the rights granted;
•  difficulties in exploiting or controlling the trademark;
•  disputes relating to the duration or termination of the agreement;
•  a loss of economic value of the trademark;
•  or even challenges to the validity of the agreement.

3.Must the assignment of a trademark be published in order to be enforceable against third parties?

Yes. Under French law, the assignment of a trademark must be recorded in the National Trademark Register maintained by the INPI in order to be enforceable against third parties. Failing this, even if the assignment is valid between the parties, it cannot be invoked against third parties, which may weaken the assignee’s position, particularly in litigation or in the context of competition.

4.Can a trademark licensee object to the assignment of the trademark?

In principle, no. The owner of a trademark is free to dispose of its property right and may assign the trademark without obtaining the licensee’s consent. However, exceptions may apply where the licence agreement contains an approval or prior information clause, or where the licence is concluded intuitu personae, meaning in consideration of the identity of the initial owner.

5.Can a trademark be assigned independently of a business?

Yes. Unlike certain elements of a business, a trademark is an autonomous intangible asset that may be assigned independently of the other elements of the undertaking. However, such a transaction must be handled with caution, particularly where the trademark is closely linked to a specific activity or customer base, in order to avoid any risk of deception or depreciation.
This publication is intended to provide general guidance and highlight certain issues. It is not intended to apply to specific situations or to constitute legal advice.

Introduction

Quantum computing is now moving beyond the field of research and gradually entering certain industrial applications, particularly through cloud-based access to specialised computing resources. This development requires traditional IT contracts to be adapted in order to anticipate the risks specific to quantum technologies, including technological uncertainty, rapid obsolescence, performance issues, intellectual property, data protection and regulatory developments.

Identifying the contractual model: QaaS or a dedicated quantum computer

Even before negotiating the technical clauses, the parties must identify the access model chosen. Contracts relating to quantum computing do not all cover the same reality. They may involve two distinct models:

• The first is Quantum Computing as a Service, or QaaS, under which the client remotely accesses quantum processors hosted by a service provider, in a manner similar to cloud computing.
• The second is based on the provision of a dedicated quantum computer, sometimes installed on the client’s premises or at a designated site.

This distinction is decisive, since the clauses to be included will vary depending on the model chosen. In a QaaS model, the contract must notably regulate access to the platform, service availability, execution queues, usage-based billing, data location and reversibility. For a dedicated computer, the contract should instead specify the hardware specifications, installation constraints, acceptance tests, maintenance, insurance, transfer of risk and conditions for returning the system.

These elements determine the service provider’s undertaking: depending on the degree of control over the technology, this may amount to a best-efforts obligation, an enhanced one or, more rarely, an obligation to achieve a specific result.

Allocating the technological risks specific to quantum computing

For many uses, quantum computing remains only partially mature, still in the process of industrialisation. This partial maturity creates specific risks that the contract must allocate clearly and fairly between the service provider and the client.

Regulating the service provider’s liability

Under French law, limitation of liability clauses are permitted, provided that they do not deprive the debtor’s essential obligation of its substance, in accordance with Article 1170 of the French Civil Code. In a contract relating to quantum technologies, drafting such clauses therefore requires a clear distinction to be drawn between:

• Limitations inherent in the technology, such as quantum noise, decoherence, measurement errors or instability of results; and
• Breaches attributable to the service provider, such as poor algorithm design, defective execution or insufficient integration into the client’s information system.

The service provider cannot guarantee the complete absence of computational errors where these result from physical constraints specific to quantum computing. However, it must be able to demonstrate the means implemented to limit, correct or reduce their effects. This demonstration requires the contract to organise the evidentiary framework for establishing a breach, particularly in QaaS environments where it may be difficult to determine whether an incorrect result stems from a defect in the service or from the normal uncertainty of the technology. The contract may therefore provide for traceability obligations: execution logs, timestamped metrics, incident reports and technical audit procedures.

Providing for technological obsolescence

Quantum solutions evolve quickly: a tool, algorithm or access to infrastructure may become less relevant within a few months. The contract must therefore organise the evolution of the solution over time, without relying solely on the statutory regime of hardship. It may include a technological update clause, a right to renegotiate or terminate in the event of significant obsolescence.

Where the contract concerns a dedicated quantum computer, it must also anticipate the gradual deterioration of performance: ageing components, drift in error rates, regular recalibrations or software updates. Minimum performance thresholds may be defined, together with an obligation for the service provider to intervene, a price reduction or a right of termination if those thresholds are no longer met.

Protecting intellectual property rights and data

Quantum contracts raise issues in the field of intellectual property. Quantum algorithms, circuit compilation methods, optimisation techniques and results generated during performance of the contract may constitute strategic assets for the parties.

Determining ownership of algorithms and results

The service is not always limited to the use of an existing tool: it may lead to the creation or improvement of algorithms, optimisation methods, circuits or technically exploitable results. The contract must therefore specify what falls within the elements already owned by each party, what is developed specifically for the client and what the service provider may, where applicable, reuse after completion of the project.

This distinction is essential, since these elements are not necessarily intended to be subject to the same legal regime: some may remain the property of the service provider, while others may be assigned to the client or only be subject to a licence of use.

Finally, the contract must regulate the service provider’s reuse of certain elements resulting from the project, particularly aggregated data or results, where they are used to improve its models, algorithms or services.

Regulating confidentiality and data protection

The data processed under quantum contracts may be sensitive, strategic or subject to specific regulatory obligations. This vigilance does not only concern personal data: industrial, financial, scientific, pharmaceutical or defence-related data may have significant strategic value, even where they do not fall within the scope of the GDPR. The contract must therefore regulate their location, the service provider’s access conditions, restrictions on use, segregation measures, as well as deletion, return and reversibility procedures.

Particular attention must also be paid to the so-called “harvest now, decrypt later” threat, which consists of collecting encrypted data today in order to decrypt them later using quantum computing capabilities. Where the sensitivity of the data so requires, the contract may organise a gradual migration towards post-quantum cryptography standards, in accordance with ANSSI recommendations.

Anticipating regulatory developments and dispute resolution

The legal framework applicable to quantum technologies remains largely indirect and fragmented. Existing texts do not always refer to quantum technologies as such, but may apply depending on the concrete use of the technology: personal data processing, use of cloud infrastructure, cybersecurity or migration to post-quantum cryptography.

The contract must therefore include compliance clauses adapted to the context of the project. In terms of export control, the parties must notably take into account Regulation (EU) 2021/821 on dual-use items and technologies, as well as, where the project has an international dimension, the US EAR regime and, in certain circumstances, ITAR. The contract must then allocate compliance responsibilities and provide for the necessary representations, warranties and cooperation obligations.

The sector-specific regulations applicable to the client must also be taken into account, particularly in the finance, healthcare, defence or critical infrastructure sectors. Depending on the circumstances, obligations arising from DORA (Regulation (EU)2022/2554), the NIS 2 Directive (Directive (EU) 2022/2555) or equivalent frameworks may need to be passed on to the service provider, particularly in relation to security, continuity, audits and incident notification.

Providing for a regulatory adaptation clause

As these contracts must be capable of adapting to changes in the applicable standards, the contract must provide for an adaptation mechanism allowing the parties to identify relevant regulatory developments, assess their technical, economic and operational impact, and then renegotiate the affected provisions. This clause may organise a reciprocal duty to inform, a renegotiation period, the allocation of compliance costs and the consequences of persistent disagreement.

Article 1195 of the French Civil Code may indeed allow renegotiation in the event of an unforeseeable change in circumstances making performance excessively onerous. However, in such an evolving field, it is preferable to organise adaptation scenarios contractually in order to avoid uncertainty regarding the conditions for continuing, suspending or terminating the contract.

Providing for an appropriate dispute resolution mechanism

Disputes relating to quantum technologies may raise complex technical questions, particularly where they concern the origin of a performance defect, the reliability of results, the attribution of an error or the compliance of the solution with the contractual specifications. It is therefore useful to provide, in advance, for a mechanism capable of clarifying the technical aspects of the

dispute before any contentious proceedings.

The contract may thus organise recourse to an independent expert with suitable expertise, responsible for analysing the causes of the difficulty encountered and issuing a technical opinion. This prior expert assessment may be supplemented by mediation or arbitration where the dispute persists.

Conclusion

Quantum computing contracts require specific drafting adapted to technologies that remain only partially mature and are evolving rapidly.

Their legal security rests on four key pillars: identifying the appropriate contractual model, allocating technological risks, protecting intellectual property and data, and anticipating regulatory developments and disputes.

The objective is to manage technological uncertainty while preserving the value of the investment. When negotiated upstream, these clauses help secure the legal position of the parties.

Dreyfus law firm  assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus law firm works in partnership with a global network of attorneys specializing in Intellectual property.

Nathalie Dreyfus with the support of the entire Dreyfus team.

FAQ

1. Should a company already enter into contracts for quantum projects while the technology remains emerging?
Yes, precisely because the technology remains emerging. The contract makes it possible to frame expectations, limit areas of uncertainty and avoid the project being based solely on technical or commercial promises. It is particularly useful during proof-of-concept phases, where the parties must know whether they are testing a hypothesis, developing a reusable asset or preparing for future industrial deployment.

2. How can a contract be prevented from becoming overly marketing-oriented?
The contract must convert commercial promises into verifiable commitments. General expressions such as “revolutionary solution”, “quantum advantage” or “significant optimisation” should be replaced by objective criteria: the scope of the service, comparison methodology, testing conditions, performance indicators and expected deliverables.

3. Must the client provide its own data to test the solution?
Not necessarily. Where the client’s data is sensitive, it may be preferable to begin with fictitious, synthetic, anonymised or representative data. If real data is necessary, the contract must specify its scope, the purposes for which it may be used, the security measures to be implemented and the conditions for deletion or return at the end of the project.

4. How can dependence on a single provider be avoided?
The contract must anticipate the risk of technological lock-in. This requires provisions on usable output formats, sufficient documentation, a reversibility clause, migration conditions and, where possible, an architecture designed to avoid excessive dependence on a single technology or platform.

5. Should the contract provide for an enhanced duty to advise?
Yes, particularly where the client does not have equivalent technical expertise. The service provider must inform the client of the limits of the technology, the risks of failure, the conditions necessary for the success of the project and the possible alternatives. This duty to advise may be decisive where the client relies on the service provider’s expertise when deciding whether to invest.

The purpose of this publication is to provide general guidance to the public and to highlight certain issues. It is not intended to apply to particular situations or to constitute legal advice.

Introduction

Since 7 February 2026, the date on which Decree No. 2026-60 of February 4, 2026 entered into force, France has had an operational regulatory framework for games involving monetisable digital objects, known as JONUM. Adopted pursuant to Articles 40 and 41 of Law No. 2024-449 of May 21, 2024 aimed at securing and regulating the digital space, known as the SREN Law, this decree sets out the conditions under which such games may be offered to the public.

This text brings to an end a period of legal uncertainty for video game operators incorporating tradable digital assets, including NFTs and utility tokens. JONUMs sit at the intersection of several sectors : video games, blockchain and, in some cases, mechanisms similar to gambling.

The French legislature did not choose to classify them fully as gambling activities. Instead, it created a specific regime based on a prior declaration to the French National Gaming Authority (ANJ), while imposing strict obligations relating to player protection, transparency and anti-money laundering.

What is a JONUM ?

Pursuant to Article 40 of the SREN Law, a JONUM is an online game that enables a player, after making a financial sacrifice, to obtain monetisable digital objects through a mechanism involving an element of chance.

This definition reflects the ambivalent nature of the regime. JONUMs belong to the world of video games through their mechanics of progression, interaction, competition and gameplay experience. However, they also borrow certain characteristic features from gambling, including financial risk, the expectation of gain and a random mechanism.

It is precisely this hybrid nature that justifies the creation of a standalone legal framework. JONUMs are not subject to the traditional gambling regime requiring a licence, but nor may they be operated as ordinary video games. They must comply with a set of specific requirements designed to prevent them from becoming purely speculative instruments.

ONUMs, rewards and authorised categories of games

The regime is centred on the concept of a monetisable digital object, or ONUM. An ONUM is an in-game element that grants the player one or more rights within the game environment. It may, for example, consist of a virtual weapon, a character, an accessory or another asset usable within the game.

To be classified as monetisable, the object must be capable of being transferred for consideration to third parties. However, the JONUM operator, or any person acting with it, may not be one of those third parties. This rule is essential : it is intended to prevent the operator from buying back digital objects itself and thereby turning the game into a monetary reward mechanism comparable to gambling.

In practice, an ONUM may notably take the form of an NFT, tradable on a secondary marketplace, whether on the operator’s internal platform or on a third-party market, or that of a utility token, usable within the game and tradable on an authorised crypto-asset platform.

These assets raise direct intellectual property issues. Their visual appearance may qualify for protection under design law, their creation may be protected by copyright if it meets the originality requirement, and their name may be registered as a trademark.

The regime also authorises certain ancillary rewards, subject to strict limits. Rewards in kind, such as tickets to sporting events or physical goods, are capped at EUR 1,000 per year, per player and per game. Crypto-assets within the meaning of the MiCA Regulation may also be distributed, excluding in particular stablecoins, asset-referenced tokens and utility tokens, within the limit of 20% of the game’s annual turnover and EUR 25,000 per player per year.

By contrast, JONUMs may never give rise to winnings denominated in legal tender, including euros. This prohibition is one of the central features of the regime, as it distinguishes JONUMs from gambling activities subject to licensing.

The Decree of February 4, 2026 also restricts JONUMs to certain categories of games during the experimental phase. These include action and combat games, breeding games, fantasy sports or horse-racing games, adventure or quest games, management or construction games, and racing games. This list requires operators to demonstrate the existence of a genuine gameplay dimension. A scheme based solely on speculative mechanics, even if presented through a video game interface, should therefore not be capable of falling within the JONUM regime.

Games linked to real sporting or horse-racing competitions are subject to particular scrutiny. The text provides for restrictions designed to prevent conflicts of interest and protect the integrity of competitions. Athletes, coaches and jockeys may not, in particular, acquire or transfer ONUMs linked to their own event. Operators must also obtain the necessary authorisations from the organisers of the competitions concerned and comply with the applicable exploitation rights.

Obligations of JONUM operators

Operating a JONUM in France requires a prior declaration to the ANJ. Only legal entities whose registered office is established in a Member State of the European Union or of the European Economic Area may offer such games on French territory.

The file submitted to the ANJ must enable the authority to understand precisely the identity of the operator, its shareholding structure, the proposed game mechanics, the methods for awarding rewards, the technical systems used and the security safeguards implemented. Where the file is complete, the ANJ issues an acknowledgement of declaration. This acknowledgement allows the operator to offer its game, but it does not constitute confirmation of regulatory compliance. The operator remains responsible for complying with all applicable obligations.

Player protection is central to this framework. Access to JONUMs is restricted to adults. When opening an account, each player must set a spending limit over a rolling seven-day period, as well as a cumulative playing time limit over the same period. If these limits are exceeded, the account’s functionalities are automatically restricted until the relevant period has expired.

Article 23 of Decree No. 2026-60 provides that players must also be able to request a temporary suspension of their account, for a period ranging from 24 hours to 12 months, or a permanent suspension. Warnings against excessive gambling must be visible on the homepage, during registration, and on the player’s activity page.

JONUM operators are also subject to anti-money laundering and counter-terrorist financing obligations. They must verify players’ identities, implement KYC (Know Your Customer) procedures, refrain from carrying out any suspicious transaction and ensure the traceability of crypto-asset transactions. Data relating to players, game events and financial transactions must be capable of being provided to the ANJ upon request.

An experimental regime whose future remains uncertain

The SREN Law provides for a three-year experimental period running until 22 May 2027. However, the late publication of the implementing decree in February 2026 reduces the effective period during which the regime can be applied.

At this stage, the regime remains recent and operators appear to be adopting it cautiously. The limited number of operators declared to the ANJ reflects both the novelty of the framework, its technical complexity and the constraints it imposes.

At the end of the experimental period, the legislature will have to decide whether to make the regime permanent, adapt it, or bring it to an end. Several questions remain open, in particular the interaction between JONUMs, digital asset law, consumer protection, and the securing of rights attached to the digital objects used in the game, especially from an intellectual property perspective. For operators, this experimental period therefore represents a strategic phase, requiring them to secure the game mechanics, monetisation arrangements, contracts with users, and relationships with technical or commercial partners.

Conclusion

The JONUM regime does not resolve all uncertainties, but it sets a clear direction : a game based on monetisable digital objects can only fall outside gambling law if it retains a primarily recreational purpose and excludes winnings in legal tender.

For operators, compliance will therefore not depend solely on the technology used or on the qualification given to the digital objects. It will be determined by the very design of the game : access conditions, monetisation methods, player information, licences, measures to prevent excessive gambling, and control over the rights attached to the content being exploited.

Dreyfus law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus law firm works in partnership with a global network of attorneys specializing in intellectual property.

Nathalie Dreyfus with the support of the entire Dreyfus team.

Q&A

1. Does an NFT acquired in a JONUM guarantee lasting value for the player ?
No. The value of an NFT or ONUM may vary depending on demand, the rarity of the asset, the activity of the game or the existence of a secondary market. Players should therefore be informed that the possibility of resale does not guarantee either liquidity or the preservation of the digital object’s value.

2. What risks may players face ?
Players may be exposed to risks of excessive gambling, poorly controlled spending or a loss in value of the digital objects acquired. They must be clearly informed of the resale conditions applicable to ONUMs and of the rights actually attached to these assets.

3. What does a player actually receive when acquiring an ONUM ?
The acquisition of an ONUM grants the player rights associated with the game, including the ability to transfer it to third parties for consideration. However, it does not automatically entail an assignment of intellectual property rights in the asset, which must be expressly regulated.

4. What is the difference between an ONUM and a classic video game item ?
A classic video game item is generally usable only within the publisher’s closed environment and cannot be freely transferred to third parties. An ONUM, by contrast, may be transferred to third parties for consideration, giving it market value and distinguishing it from a simple in-game digital asset.

5. What are the risks for an operator offering JONUMs without filing a declaration with the ANJ ?
Failure to file a prior declaration exposes the operator to administrative and criminal sanctions. The ANJ may, in particular, order the blocking of the offer. The activity could also be reclassified as unlawful operation of gambling if it does not comply with the conditions of the JONUM regime.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific situations or to constitute legal advice.

Introduction

Novelty is a key point of vigilance in the protection of plant varieties. A single transfer of plant material, an insufficiently regulated trial, or a premature commercial presentation may be enough to trigger the novelty period and, ultimately, jeopardize the validity of the title sought.

Novelty period in plant variety rights: what exactly does it cover?

Under the plant variety rights regime, novelty is assessed primarily by reference to the commercial exploitation of the variety. This approach reflects Article 6 of the 1991 Act of the UPOV Convention, under which a variety is deemed to be new where, at the filing date of the application, propagating or harvested material of the variety has not been sold or otherwise disposed of to others by the breeder, or with the breeder’s consent, for purposes of exploitation of the variety, beyond the applicable time limits. Novelty should therefore not be confused with the mere prior existence of the variety: the decisive criterion lies in certain acts of making the variety available for exploitation.

Article 10 of Regulation (EC) No. 2100/94, for Community plant variety right , and Article L. 623-5 of the French Intellectual Property Code, for French national plant variety certificates, mainly provide for the following time limits :

• one year before the filing date for sales or disposals carried out within the territory of the European Union, in the case of Community plant variety right, and within the French territory or the European Economic Area, in the case of a French title;
• four years before the filing date for sales or transfers carried out outside the European Union;
• this period is extended to six years, outside the European Union, for trees and vines.

This territorial distinction must be taken into account at a very early stage. Where a variety has been subject to trials, transfers of material or commercial steps in several countries, it is advisable to establish a territory-by-territory chronology, identifying, for each country, the date of the first transfer, the purpose of the operation, the recipient, the volumes transferred and the applicable contractual framework.

However, a distinction must be drawn between transfers that may trigger the novelty period and certain transfers that are expressly neutralized under French law. Article L. 623-5 of the French Intellectual Property Code provides that transfers of material of the variety to an official or officially authorized body for regulatory purposes are not considered transfers to third parties for novelty purposes. The same applies to transfers to third parties for experimental purposes or for presentation in an officially recognized exhibition, provided, in these latter two cases, that the breeder has expressly stipulated that commercial exploitation of the variety whose material has been transferred is prohibited.

This logic distinguishes plant variety law from patent law, where novelty is assessed against the state of the art according to an absolute novelty standard. In the field of plant variety rights, certain trial, description or presentation operations may therefore be carried out without destroying novelty, provided that the threshold of commercial exploitation is not prematurely crossed and that the conditions governing the transfer of material are rigorously documented.

Which acts may jeopardize the novelty of a variety?

Identifying the acts likely to trigger the novelty period is a central step in any pre-filing audit. An error of assessment at this stage may result in the irreversible loss of rights, with no possibility of subsequent regularization.

Sale or disposal for consideration

The sale or disposal of propagating or harvested material of the variety is the clearest example of commercialization.

Neither the status of the recipient, distributor, nursery operator, farmer, industrial partner or end customer, nor the quantity transferred is decisive. A single transfer may be sufficient to trigger the novelty period where it forms part of a logic of exploitation.

Offers for sale and commercial communications

An offer for sale may also constitute an indication of commercialization where it reveals that the variety has been made available for the purposes of exploitation. This is particularly the case where the communication is accompanied by orders, a commitment to deliver, an announcement that the material is available, or an actual transfer to third parties.

Conversely, a purely institutional, technical or scientific communication, limited to the presentation of the variety without any possibility of ordering or obtaining the material, should not, in itself, be sufficient to trigger the novelty period.

Transfers free of charge

The fact that a transfer is made free of charge does not, in itself, eliminate the risk of triggering the novelty period. A free transfer to an industrial partner or potential customer may amount to a transfer to third parties for the purposes of exploitation if it forms part of an economic or commercial rationale.

Conversely, a regulated free transfer carried out for experimental purposes may be distinguished from commercial exploitation, provided that its purpose is properly documented.

In practice, free transfers should be governed by an agreement specifying, in particular, the purpose of the trial, the prohibition on multiplication, the prohibition on transfer to third parties, confidentiality obligations, the conditions for return or destruction of the material, and the arrangements for monitoring the results. In the absence of such safeguards, the free transfer may be recharacterized and may trigger the novelty period.

Pre-commercial trials and exploitation: where is the line drawn?

The distinction between a pre-commercial trial and commercial exploitation is one of the most sensitive issues. Breeders must be able to test a variety and assess its agronomic potential without prematurely triggering the novelty period.

The case law of the European Union, in particular the Pink Lady America LLC v CPVO  (General Court, 24 September 2019, Case T-112/18) case, clarified the scope of the concept of “exploitation” within the meaning of Article 10 of Regulation (EC) No. 2100/94. The General Court notably distinguished evaluation operations intended to assess the behavior or commercial value of the variety from acts revealing exploitation of the variety for profit-making purposes and an intention to place it on the market.

A pre-commercial trial should not, in principle, be treated as exploitation where its purpose remains experimental, the volumes are proportionate to the needs of the assessment, the partners are identified, the material is controlled, and the operation does not reveal an intention to place the variety on the market. It is therefore essential to secure such situations through precise documentation; otherwise, the breeder may be exposed to a risk that the trial will be recharacterized as an act of exploitation.

What documentation should be kept to demonstrate compliance with the novelty period?

In the event of a dispute, evidence becomes decisive: the breeder must be able to establish the chronology of the acts carried out, their purpose and the safeguards governing them. The CPVO General Guidelines on Article 10 of Regulation (EC) No 2100/94 recall, in this respect, that the relevant date for assessing the first commercial exploitation is, in principle, the date of physical delivery of the varietal constituents or harvested material. Delivery notes, dispatch notes and logistical traceability records should therefore be kept with particular care, as they may help identify the starting point of the novelty period.

Conclusion

In the field of plant variety rights, novelty is rarely lost by sheer accident: it is often lost through a lack of anticipation. A poorly framed trial, an insufficiently documented transfer or premature communication may be enough to weaken the protection of a variety.

Securing the filing therefore requires organizing, at an early stage, the chronology of trials, transfers of material and initial commercial steps. Protection does not begin on the filing date: it is built from the very first exchanges with third parties.

Dreyfus law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus law firm works in partnership with a global network of attorneys specializing in Intellectual Property.

Nathalie Dreyfus with the support of the entire Dreyfus team.

FAQ

1. Can a transfer free of charge trigger the novelty period?
Yes, if it in fact amounts to a disposal to third parties for purposes of exploitation. The fact that the transfer is free of charge is not decisive. An unregulated transfer to an industrial partner, distributor or potential customer may trigger the novelty period if it forms part of a logic of exploitation.

2. Is a trial agreement sufficient to eliminate all risk?
The agreement is essential, but it is not sufficient if the actual practice reveals commercial exploitation. The volumes transferred, the duration of the trial, the remuneration, the rights granted to the partner and the communications surrounding the variety must remain consistent with an experimental purpose.

3. What happens if the deadline is exceeded by a single day?
Exceeding the time limit may result in loss of novelty and therefore jeopardize the protection sought. If the title has already been granted, it may be exposed to an action for invalidity.

4. Are the rules identical in all countries?
The principles derived from the UPOV Convention are broadly harmonized, but their implementation may vary from one jurisdiction to another. The applicable time limits, the qualification of trials, the treatment of free transfers and the scope of acts of commercialization may differ.

5. Which documents should be kept as a priority?
All documents capable of demonstrating the chronology and purpose of the acts carried out should be kept: trial agreements, delivery notes, invoices, purchase orders, trial protocols, agronomic reports, confidentiality clauses, proof of return or destruction of the material, catalogues and dated commercial communications.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific situations or to constitute legal advice.

Introduction

France was the first Member State of the European Union to establish an autonomous legal framework for e-sports. Law No. 2016-1321 of October 7, 2016 for a Digital Republic introduced into the French Internal Security Code a dedicated chapter governing video game competitions, thereby putting an end to a legal vacuum affecting the entire industry.

This pioneering framework rests on three pillars:

• the regulated authorisation of in-person competitions offering prizes,
• the prohibition of paid online competitions offering cash prizes, and
• the creation of a specific employment contract for salaried professional players.

This is a sui generis framework, at the crossroads of  digital law, employment law and the law applicable to video games, without, however, granting esports the sporting recognition provided for under the French Sports Code. A bill tabled in November 2025 could further this structuring process.

The organisation of e-sports competitions : obligations and limitations

The prior notification requirement

Any in-person video game competition organised in France and offering financial prizes is subject to a prior notification requirement before the Ministry of the Interior. This formality must be completed no earlier than one year and no later than one month before the date of the event. Several competitions may be notified simultaneously.

Failure to comply with this requirement is not insignificant: the organiser may become subject to the general regime governing games of chance and gambling, which is particularly stringent and may even entail criminal sanctions.

Regulation of entry fees

The law imposes a cap on entry fees collected from players in order to prevent any shift towards classification as gambling. The proportionality between such fees and the prizes actually awarded is a central criterion of legality, which each organiser must assess carefully before the event.

Prohibition of paid online competitions offering cash prizes

The current legal framework formally prohibits the collection of entry fees for online competitions offering cash prizes, pursuant to Articles L. 320-1 et seq. of the French Internal Security Code. This prohibition clearly distinguishes regulated but authorised in-person tournaments from fully online formats involving financial stakes, which remain treated as gambling activities.

The status of professional competitive video game players

The salaried professional player contract

France has created a derogatory employment contract specifically designed for professional e-sports players : the salaried professional competitive video game player contract. This mechanism enables clubs to recruit players under employment law while taking into account the specific features of the sector, in particular the especially short duration of professional careers.

This contract has several essential characteristics :

• a term ranging from one to five years;
• a prohibition on engaging players under the age of 12 in competitions offering financial rewards;
• affiliation to the general social security regime applicable to employees, including health coverage, pension rights and social security contributions;
• adaptation to the specific constraints of the sector, including training, travel and career duration.

Enhanced protection for minor players

French law pays particular attention to minor players. The engagement of a minor requires parental authorisation, compliance with child labour rules and continued educational supervision. The commercial exploitation of a minor player is strictly limited.

Competition organisers also have specific obligations : they must avoid violent content unsuitable for minors, addictive mechanics and mechanisms that may be assimilated to disguised betting.

Risks of reclassification

Despite the existence of this specific contract, some organisations continue to rely on service agreements or self-employed status. This practice exposes the organisation to a significant risk of reclassification as an employment contract, resulting in retroactive payment of social security contributions, dismissal indemnities and, in the most serious cases, criminal penalties for concealed employment.

E-sports and online gambling : a decisive legal boundary

The online gambling regime established by the 2010 law

Law No. 2010-476 of May 12, 2010 opened three activities to competition : sports betting, horse-race betting and online poker, while maintaining the prohibition of online casinos. Betting on e-sports competitions falls within the category of sports betting and is subject to authorisation by the French National Gambling Authority (ANJ), created in 2019.

JONUM : a European regulatory innovation

France has taken a pioneering step in Europe with the regime applicable to games involving monetisable digital objects, known as JONUM, introduced by the SREN Law of May 21, 2024 and made operational by the ANJ in February 2026.

This three-year experimental framework targets games at the boundary between video games and regulated gambling, allowing players to acquire digital objects, NFTs or blockchain tokens that may be traded on secondary markets.

JONUM operators are subject to substantial obligations. They must comply with a cap on non-monetary rewards of EUR 1,000 per player, per game and per year, as well as a limitation on crypto-asset rewards to 20% of the game’s annual turnover.

They must also implement responsible gaming tools, such as time limits, weekly spending caps and self-exclusion mechanisms. A prior declaration to the ANJ is required before any launch. Finally, operators must retain transaction data and provide detailed reporting.

Enforcement against prediction markets

In 2026, the ANJ adopted an enforcement policy against prediction market platforms, such as Kalshi and Polymarket, which it considered to be unlicensed gambling services. These operators received formal warnings and implemented geoblocking of French IP addresses.

France is not acting in isolation: the Belgian Gaming Commission and the Spanish authority adopted similar positions in early 2026.

The 2025 bill : towards a responsible and attractive e-sports framework

A bill “for a responsible and attractive e-sport” was introduced before the French National Assembly on November 18, 2025. Although it has not yet been placed on the parliamentary agenda, it announces three major developments that stakeholders in the sector should anticipate now.

Statutory recognition of the talent passport

The talent passport granted to foreign e-sports players and coaches, which has until now been issued on the basis of a mere interministerial instruction, would be expressly enshrined in law. Securing this residence permit is crucial to France’s international attractiveness in a sector where talent circulates globally.

Opening up paid online competitions

The bill provides for the authorisation of paid online competitions with prizes, which would constitute a significant relaxation of the current regime. The prohibition of such formats, based on Articles L. 320-1 et seq. of the French Internal Security Code, is currently one of the main obstacles to the economic development of French e-sports.

Creation of a structured training pathway

The bill provides for the creation of dedicated e-sports training centres subject to approval and training agreements, as well as the establishment of an official list of high-level players granting them access to support mechanisms reserved for elite athletes. This symbolic and practical recognition has long been awaited by professional clubs.

Intellectual property in the e-sports ecosystem

The specific position of publishers

E-sports has a fundamental structural feature : the video game used in competition is protected by copyright and related rights held by the publisher. Licence agreements between publishers and tournament organisers allow publishers to define, to a significant extent, the conditions under which the competitive ecosystem may be exploited.

This concentration of rights in a single actor for each title makes contractual negotiations particularly sensitive.

Protection of club trademarks

E-sports organisations build their value around a recognisable trademark identity, including names, logos, slogans and visual elements. Protecting these assets through registration is essential.

An effective strategy includes filing before the French National Institute of Industrial Property, INPI, in France in Classes 9, 25, 28, 35 and 41; filing at European level before the EUIPO; international filing through the WIPO Madrid System; and filing designs for logos and visual identities.

Monitoring and combating infringement

The protection of trademarks and domain names requires proactive monitoring of online infringements, including cybersquatting, fake social media accounts and illegal betting websites reproducing the visual identity of licensed operators.

Several out-of-court procedures make it possible to recover an abusively registered domain name : the UDRP procedure administered by WIPO for generic extensions such as .com, .org and .net; the SYRELI procedure administered by AFNIC for French national extensions such as .fr; and the URS system for clear cases of cybersquatting.

A broader domain name strategy is therefore essential for e-sports stakeholders seeking to protect their online presence.

Rights of professional players

Professional players and streamers may, in practice, benefit from several layers of protection :

• image rights over their person, which must be contractually assigned for any commercial exploitation;
• neighbouring rights as performers where their performance displays original artistic features;
• rights over their name and voice, enforceable against unauthorised uses, particularly artificial intelligence generated deepfakes.

Conclusion

The regulatory framework for e-sports in France is one of the most advanced in Europe, yet it remains incomplete. Between the legal architecture established by the 2016 law, regulatory innovations such as the JONUM regime, the growing importance of the 2025 bill and the overlapping issues of intellectual property, employment law and advertising compliance, stakeholders in the sector are operating in a constantly evolving legal environment.

Dreyfus  assists clients in managing complex intellectual property matters by providing tailored advice and comprehensive operational support for the full protection of intellectual property rights.

Dreyfus & Associés works in partnership with a worldwide network of lawyers specialised in intellectual property.

Nathalie Dreyfus, with the assistance of the entire team at Dreyfus.

Q&A

1. Who owns the rights to an esports tournament ?

Rights are generally shared among several stakeholders depending on the elements concerned: the game publisher, which owns the intellectual property rights in the video game; the organiser, which may hold rights in the event, its recording, related content and the tournament brand; and the players or teams, who notably have rights over their image, name or voice, and, in certain cases, rights over their performances where these are original. Contractual clarification is therefore essential before any commercial exploitation or broadcast.

2. Can a publisher control the organisation of esports competitions based on its game ?

Yes. Unlike traditional sports, esports are based on video games protected by copyright. The publisher may therefore regulate the use of its game in competitions, including through licences, tournament rules, broadcasting restrictions or commercial exploitation terms.

3. What are the legal risks relating to esports players’ image rights ?

The use of a player’s image, name, voice or pseudonym should be governed by a clear authorisation, particularly for advertising campaigns, merchandising, sponsored content or event recordings. Clubs and organisers should also anticipate risks linked to deepfakes and unauthorised uses generated by artificial intelligence.

4. Are non-compete clauses valid in esports player contracts ?

Yes, provided that they are strictly framed. A non-compete clause must be justified by the team’s legitimate interests, limited in time and geographical scope, proportionate to the player’s role, and accompanied by financial compensation.

5. Must the personal data of players and spectators be protected ?

Yes. Clubs, platforms and organisers must comply with the GDPR when collecting data relating to players, spectators, users, minors, payments, rankings or competition registrations. More broadly, personal data protection is a key compliance issue for e-sports stakeholders.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific situations or to constitute legal advice.

Introduction

In a notable judgment handed down on 12 March 2026 (Nador Cott Protection SAS v Asda Stores Ltd, [2026] EWHC 553 (Pat)), the UK Patents Court provided important clarification on the concept of an essentially derived variety (EDV) as applied to citrus fruit.

The decision concerns the mandarin variety “Tang Gold”, which the holder of the protected variety “Nadorcott” claimed was an essentially derived variety of Nadorcott. The dispute therefore required the UK court to examine the criteria for establishing the existence of an EDV and, more specifically, the method for identifying the essential characteristics of the initial variety.

The main lesson from this decision is clear : EDV status cannot be inferred from mere genetic or phenotypic similarity. It requires a rigorous analysis of the essential characteristics of the protected variety and of their expression in the allegedly derived variety.

The Nadorcott / Tang Gold dispute : background and issues

The “Nadorcott” variety is a late, seedless mandarin created in Morocco and protected since 2004 by a Community plant variety right. Following Brexit, this protection was converted into a UK national right as from 1 January 2021.

Given its international commercial success, this variety has already given rise to several major disputes, notably before the Court of Justice of the European Union in Case C-176/18. The UK dispute between Nador Cott Protection SAS and Asda Stores Limited falls within this broader context of exploiting and actively defending the rights attached to this plant variety.

Tang Gold, a variety derived by irradiation

The “Tang Gold” variety, marketed under the name “Tango” in certain countries, was developed by the University of California, Riverside from irradiated buds of the “W. Murcott” variety, which was alleged during the proceedings to correspond to the Nadorcott variety.

This variety has a particular characteristic : it does not produce viable pollen. As a result, its fruit remains seedless even in the presence of cross-pollination with other nearby varieties. This agronomic advantage enables growers to avoid certain cultivation constraints designed to preserve seedlessness.

Taking the view that Tang Gold was an essentially derived variety of Nadorcott, Nador Cott Protection SAS brought infringement proceedings against Asda, a distributor of these mandarins in the United Kingdom.

The proceedings : from the application for a stay to the trial on the merits

In response to the infringement action brought against it, Asda applied to the UK Plant Variety Rights Office (PVRO) for the revocation of the plant breeder’s right relating to the “Nadorcott” variety. This application was based on several grounds, including lack of novelty, lack of distinctness and a challenge to entitlement to the right.

At the same time, Asda asked the Patents Court to stay the proceedings pending the PVRO’s decision on the validity of the title. This application for a stay was rejected. The UK court therefore held that the infringement action could continue without waiting for the outcome of the revocation proceedings.

The trial on the merits was accordingly held in November 2025 before the Patents Court. At that stage, no decision had yet been issued by the PVRO on the validity of the “Nadorcott” plant breeder’s right.

The concept of an essentially derived variety (EDV) under UK law

Legal definition : the three cumulative conditions under section 7 of the Plant Varieties Act 1997

UK law defines EDVs autonomously from EU Regulation No. 2100/94 of 27 July 1994 on Community plant variety rights. Section 7(3) of the Plant Varieties Act 1997 requires three cumulative conditions to be met for a variety to be regarded as essentially derived from an initial variety :

• it must be predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of that initial variety ;
  • it must be clearly distinguishable from the initial variety by one or more characteristics capable of precise description ;
  • except for the differences resulting from the act of derivation, it must conform to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of that initial variety.

The Nadorcott/Tang Gold case is one of the first judicial decisions to examine in depth the application of these criteria to a commercially strategic fruit variety.

Essential characteristics at the heart of the debate

The issue of pollen fertility and seed formation

The debate focused mainly on the consequences of Tang Gold’s failure to produce viable pollen.

Unlike Tang Gold, the Nadorcott variety produces fertile pollen capable of fertilising nearby varieties and causing seeds to appear in the fruit.

To preserve the variety’s commercial qualities, growers must therefore implement various preventive measures, such as isolating plantations or installing insect-proof nets.

Tang Gold removes this constraint, since its fruit remains seedless regardless of growing conditions.

The method for identifying essential characteristics

Relying in particular on the UPOV Explanatory Notes, the judge recalled that an essential characteristic must be assessed by reference to its importance for the economic actors concerned, whether growers, distributors or consumers.

The reasoning adopted is particularly instructive. The court did not regard the absence of viable pollen as a mere ancillary improvement to Nadorcott. It considered that this property provided growers with a substantial agronomic and economic advantage, to the extent that it constituted an essential characteristic in its own right.

Accordingly, Tang Gold does not merely reproduce the essential characteristics of Nadorcott. It introduces an additional essential characteristic that substantially alters the profile of the variety.

This analysis led the Patents Court to conclude that Tang Gold does not meet the definition of an essentially derived variety within the meaning of the Plant Varieties Act 1997.

The judge nevertheless noted that a different conclusion might have been reached under Regulation (EC) No. 2100/94 on Community plant variety rights, the wording of which differs significantly from the UK legislation.

Finally, the court expressly rejected any consideration of the cost or importance of the investments made to develop Tang Gold, as such factors have no bearing on the legal classification of an EDV.

The cascade principle and the protection of harvested material

Mechanism and purpose of the cascade principle

The judgment also provides important clarification on the application of the so-called “cascade” principle set out in section 6(3) of the Plant Varieties Act 1997.

This mechanism allows the holder of a plant breeder’s right to act in respect of harvested material where the holder has not had a reasonable opportunity to exercise its rights upstream in relation to propagating material.

Historically designed to combat the importation of cut flowers from countries that did not recognise plant breeders’ rights, this mechanism now plays a major role in the international trade in fruit and vegetables.

Imports from countries without protection

Some of the Tang Gold mandarins marketed by Asda came from Peru, Chile and Egypt, territories in which the Nadorcott variety did not benefit from any protection.

The judge adopted a restrictive interpretation of the concept of “unauthorised use”. In the judge’s view, a use can only be characterised as unauthorised in a territory where the plant breeder’s right is actually in force.

As a result, the production and marketing of fruit in a country where there is no protection cannot be regarded as infringing, even where that fruit is subsequently imported into the United Kingdom.

This analysis is based on the UPOV Explanatory Notes published in 2013, although those notes are not binding.

Divergences between UK law, EU Regulation and UPOV

Beyond the dispute between Nadorcott and Tang Gold, the decision highlights the growing risk of fragmentation in plant variety rights law.

The judge himself acknowledged that the outcome of the dispute might have been different under Regulation (EC) No. 2100/94, which applies within the European Union. This divergence is particularly significant both in relation to the definition of essentially derived varieties and the scope of protection granted to harvested material.

This issue is all the more topical because an expert study published by UPOV in January 2026 adopts an interpretation that differs substantially from that adopted by the Patents Court regarding the concept of “unauthorised use” and the interpretation of the cascade principle.

The decision therefore illustrates the growing importance of an international plant variety protection strategy. In a legal environment marked by divergences of interpretation between different protection systems, the geographical scope of rights and the way in which they interact have become decisive factors in securing and exploiting varietal innovations.

Conclusion

The judgment in Nador Cott Protection SAS v Asda Stores Ltd is a major decision in the field of plant variety rights. For the first time, a UK court carried out an in-depth analysis of the concept of an essentially derived variety as applied to a high-value commercial fruit variety.

Beyond the specific case of the Nadorcott and Tang Gold varieties, the decision recalls that EDV status cannot result from mere genetic similarity or common origin. It requires the precise identification of the essential characteristics of the initial variety and an assessment of whether those characteristics remain effectively expressed in the allegedly derived variety. The introduction of a new essential characteristic with its own agronomic or economic value may therefore prevent classification as an EDV.

The judgment also provides important clarification on the application of the cascade principle and on the territorial scope of plant breeders’ rights, while highlighting the divergences of interpretation that may exist between UK law, EU law and recent UPOV work.

In a context of increasing internationalisation of agricultural and horticultural supply chains, this decision underlines the importance for breeders of implementing a coherent global protection strategy, taking into account both the choice of territories in which protection is sought and the need to anticipate differences of interpretation between legal systems.

Dreyfus & Associés assists its clients with complex issues relating to plant variety rights, providing tailored advice and comprehensive operational support for the implementation and optimisation of protection strategies that incorporate all intellectual property tools.

Dreyfus & Associés is partnered with a global network of Intellectual Property attorneys.

Nathalie Dreyfus, with the support of the entire Dreyfus team.

Q&A

1. What methods are used to determine if a variety is essentially derived ?

Experts combine genetic analysis, morphological tests, and agronomic trials, comparing genotype, fidelity of essential characteristics, and distinctiveness of observable traits, in line with UPOV criteria and local laws.

2. Could the absence of viable pollen in Tang Gold be a standalone commercial advantage ?
Yes. The lack of viable pollen reduces contamination risk for neighboring crops and simplifies the production of seedless fruits, providing a distinctive advantage for producers and distributors, independently of legal disputes.

3. Why do some countries like Peru, Chile, and Egypt not protect Nadorcott ?

Protection of plant varieties varies by national legislation and UPOV membership. Some countries have not implemented variety rights for certain species or prioritize free access to varieties to support local agriculture and exports.

4. What international strategies do breeders use to protect a variety like Nadorcott ?

Breeders file rights on the variety in multiple countries, monitor imports and sales, enter into licenses or commercial agreements, and use genetic analysis to detect potential derived varieties.

5. What is the difference between UK plant variety rights and EU law post-Brexit ?

Since 1 January 2021, the UK has an autonomous plant variety rights regime, administered by the PVRO. The wording of the Plant Varieties Act 1997 differs from Regulation (EC) No 2100/94, notably regarding the EDV definition. CPVO decisions are not binding on UK courts, and vice versa, creating a tangible risk of divergent interpretations.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific situations nor to constitute legal advice.

Introduction

AI-assisted coding is emerging as one of the most profound technological disruptions of this decade. Platforms such as GitHub Copilot, Cursor and Claude Code now allow an AI agent to design, structure and deliver a complete software package based solely on high-level instructions. This technical acceleration raises a strategic legal question: can a company truly protect, under copyright law, software created with the assistance, or even under the impetus, of AI agents?

In a context where AI programming tools are becoming genuine production partners, legal departments and technical teams must anticipate a major risk: losing, in whole or in part, the protection attached to the software assets they believed they controlled.

The legal framework for copyright protection of software

The European foundation: the software directive

Under European Union law, copyright protection for software is based on Directive 2009/24/EC on the legal protection of computer programs, commonly referred to as the “Software Directive”. This text requires Member States to grant protection to “the expression in any form of a computer program”. The wording is deliberately broad: it covers both source code and object code, as well as preparatory design material, functional specifications, architectures and technical documentation provided that these elements reflect genuine creative work.

The central criterion remains originality, as interpreted by the Court of Justice of the European Union (CJEU).

According to settled European case law since the judgment in Bezpečnostní softwarová asociace (C-393/09, BSA, 22 December 2010), and as confirmed in the Painer cases, of December 1, 2011 (C-145/10) “a computer program is protectable only if its author has exercised “free and creative choices” in the way the software’s functionalities are expressed.”

Elements whose form is entirely dictated by technical constraints, a sorting equation or a standardized compression protocol cannot, in themselves, claim protection.

Post-Brexit continuity in the United Kingdom

Since the United Kingdom’s withdrawal from the European Union, UK copyright law has remained aligned with these principles. The Court of Appeal of England and Wales confirmed in THJ v Sheridan that originality, within the meaning of the Copyright, Designs and Patents Act 1988 (CDPA), still requires the work to be the “author’s own intellectual creation”, in line with European standards. At this stage, no substantial divergence appears to be emerging between continental and UK law on this issue.

Protection of non-code elements: interface and assets

Beyond the code itself, the visual, textual and sound elements that make up the user interface benefit from their own protection regime. In Infopaq (C-5/08, 16 July 2009), the CJEU held that a work is protected where it is the “author’s own intellectual creation”, reflecting the author’s personality and expressed through free and creative choices.

This approach was recently reaffirmed by the CJUE in the Mio judgment of December 4, 2025 (C-580/23, 2024), which clarified the contours of originality for graphic and sound elements.

AI at the heart of the development process: a threat to protection?

Three levels of AI involvement in the software development cycle should be distinguished, as each carry distinct legal consequences:

• The code copilot such as GitHub Copilot or Tabnine: AI suggests code snippets that the developer accepts, modifies or rejects. The creative initiative remains human.
• The conversational development assistant such as ChatGPT or Claude: the developer describes a feature in natural language and receives a complete code block, which is then integrated into an architecture that the developer controls.
• The autonomous coding agent such as Claude Code, Devin or OpenHands: based on a high-level specification, the agent plans, codes, tests and delivers the entire project with minimal human supervision.

It is this third category that concentrates most of the legal risk. Where the agent autonomously determines the software architecture, chooses programming paradigms and writes the thousands of lines of code forming the final product, the human contribution may be reduced to the formulation of an intention which is difficult to characterize as a “free and creative choice” within the meaning of CJEU case law.

The core issue is that the technical performance of code and its originality under copyright law are radically different qualities. Software generated by an AI agent may be syntactically flawless, functionally complete and algorithmically sophisticated, while still lacking any human creative imprint. What it reflects is the statistical combination of the model’s training corpus, not the personality of an author.

Yet it is precisely this imprint the trace of choices that the author could have made differently that forms the basis of protection under Directive 2009/24/EC and settled CJEU case law. AI-optimized code is not necessarily original code in the legal sense: this is the first pitfall that legal teams must learn to identify.

European and U.S. case law on AI-assisted coding

There is not yet any case law directly addressing software entirely coded by AI. The available decisions concern other types of AI-generated works, such as images, logos and lyrics, but they converge around a common criterion that can be directly transposed to software: protection depends on measurable and documented human creative control over the final result.

The U.S. position

In the United States, the applicable framework is set out in the Copyright Act of 1976, whose constitutional basis has been interpreted by the Supreme Court as requiring a human author. The U.S. Copyright Office formalized this position in its revised 2023 guidance, stating that material generated by AI without sufficient human creative control cannot be registered.

The Case of Thaler v. Perlmutterdecided on March 18, 2025, by the District of Columbia Court of Appeals, illustrates this requirement. Although the case did not concern software, but rather a visual work generated by AI, the court’s reasoning is directly relevant to AI-generated code. By recalling that the Copyright Act requires the existence of a human author, the court confirmed that the protection of an AI-assisted creation depends on human intervention in the final result. Transposed to software, this requirement means assessing whether the developer actually designed, selected, structured or modified the generated code, beyond merely submitting a request to the tool.

We invite you to read the dedicated article on this case on our blog.

The European position

The first European decision: Prague Municipal Court, October 11, 2023

In the first European decision on this issue, case no. 10 C 13/2023-16, the Prague Municipal Court refused to grant copyright protection to an image generated using DALL-E by OpenAI. The claimant had written a prompt describing the desired scene in detail; the court held that this was not sufficient to demonstrate that the image was “the unique result of the creative activity of a natural person”. Now final, this decision establishes a principle applicable to any type of AI-generated content: a high-level instruction given to a generative system does not, ipso facto, confer copyright ownership over the resulting output.

The Munich court’s reference decision: no protection for AI-generated logos

In its decision of February 13, 2026 (AG München, 142 C 9786/25, GRUR-RS 2026, 1513), the Munich court refused copyright protection for three AI-generated logos, holding that neither the prompts nor the successive human interventions demonstrated sufficient creative control over the final form of the works. The court nevertheless left open the possibility that protection could arise where human creative elements “dominate” the result to such an extent that it can be regarded as the author’s own original creation. This leaves a narrow path that legal and technical practice must now seek to build upon.

The Frankfurt case: the burden of proving authorship

The decision of the “Landgericht Frankfurt am Main” (Frankfurt am Main Regional Court GRUR-RS 2025, 41927), sheds light on a decisive procedural issue. A lyricist sought an injunction for infringement of her lyrics; the defense submitted expert evidence claiming that the lyrics had been generated by AI. The claimant responded with a simple sworn statement establishing her initial authorship, AI having been used only for subsequent musical adaptation.

The court held that this statement was sufficient at the interim relief stage. This case reveals a major risk for companies: the “AI defense” is becoming a means of challenging copyright, placing an increasing evidential burden on creators, one that only rigorous preventive documentation can anticipate.

Conclusion

The rise of agentic coding forces companies to rethink their approach to software intellectual property, no longer as an automatic protection acquired by the mere fact of development, but as the result of a conscious strategy of human involvement and creative documentation. The transatlantic convergence of European and U.S. case law points to a coherent legal horizon: only measurable and documented human creative control can form the basis of copyright protection for software developed with the assistance of AI.

Dreyfus & Associés assists its clients in managing complex intellectual property matters by providing tailored advice and comprehensive operational support for the full protection of intellectual property rights.

Dreyfus & Associés works in partnership with a global network of specialized intellectual property lawyers.

Nathalie Dreyfus with the support of the entire Dreyfus team.

FAQ

1. Can software generated entirely by AI be protected by copyright in France?
No, under current positive law. Copyright protection requires the work to be the author’s own intellectual creation, reflecting free and creative choices (Article L. 112-1 of the French Intellectual Property Code; Directive 2009/24/EC). Software whose architecture, structure and code have been determined autonomously by an AI agent does not satisfy this criterion. Only the parts of the code that are subject to identifiable and documented human creative interventions may qualify for protection.

2. What is the difference between an AI coding assistant and an autonomous coding agent from a legal standpoint?
The distinction is crucial. A coding assistant, or copilot, suggests code fragments that the human developer selects, adapts and integrates: the chain of creative decisions remains human. By contrast, an autonomous agent performs the entire design and production process based on high-level instructions, reducing the human contribution to the formulation of an intention. The more control AI exercises over the final result, the weaker copyright protection becomes.

3. How can companies preserve copyright when using AI tools?
The key lies in documenting and structuring human interventions. Developers should retain architecture notes, creative decision logs, version histories and prior specifications evidencing their expressive and structural choices. Companies should also define mandatory creative control checkpoints within development processes, where a human developer deliberately and traceably validates or transforms AI outputs.

4. Is U.S. law aligned with European law on the protection of AI-generated software?
Yes. The convergence between U.S. and European law provides a coherent analytical framework for companies operating internationally.

5. Can trade secret protection replace copyright for AI-generated software?
It may constitute a partial and effective substitute for internal-use software. Directive 2016/943/EU on the protection of trade secrets, transposed into French law by Law No. 2018-670 of July 30, 2018, protects any commercial information that has economic value, is not publicly disclosed and is subject to reasonable protective measures. Strictly internal software, whose code is not exposed to third parties, may therefore be protected independently of copyright considerations, provided that appropriate confidentiality measures are implemented, such as restricted access, contractual clauses and a BYOD policy.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific circumstances or to constitute legal advice.

Introduction

When filing a trademark that includes a logo, a recurring question arises: should a description of the visual elements of the sign be included? Although this approach may seem relevant as a means of guiding the interpretation of the logo, it is, in the majority of cases, inadvisable. Indeed, trademark law rests on a fundamental principle: the graphic representation of the sign is, in itself, sufficient to delineate the scope of protection. The addition of a description may, on the contrary, introduce unnecessary complexity and, in certain cases, undermine the validity of the trademark.

The graphic representation as the sole basis of a trademark

Trademark law, both in France and at the European level, requires that the trademark be represented in a clear, precise and objective manner. This requirement is codified in the French Intellectual Property Code and is grounded in settled European case law (see CJEU, December 12, 2002, Sieckmann, C‑273/00). The logo, as a graphic representation, must enable the immediate identification of the distinctive elements of the sign: its shape, its typography, its colours where applicable, and its overall arrangement.

Adding a textual description to a logo that is already visually distinct and self-explanatory may appear superfluous. Indeed, superimposing a textual layer upon a visual perception gives rise to unnecessary ambiguity. The cardinal principle of trademark law is to assess the trademark as it is perceived by the relevant public, without being influenced by descriptions. This approach ensures greater legal certainty for the trademark and avoids divergent interpretations.

The legal risks associated with adding a description

The addition of a description, even where drafted with due care and precision, entails several legal risks which may materialise in practical terms in the course of litigation. These risks must be taken into account by any person seeking to maximise the protection afforded to their trade mark.

A source of ambiguity

One of the principal risks arising from the addition of a description is the ambiguity it may create. For example, describing a colour as ‘golden’ without defining it precisely may open the door to divergent interpretations. Similarly, terms such as ‘relief’ or ’embossed’ may give rise to confusion as to the true nature of the logo, particularly where the visual effect of the relief is not clearly perceptible in all reproductions of the logo.

A restrictive effect on the scope of protection

Another significant risk associated with the addition of a description is that it may narrow the scope of trademark protection. By specifying certain elements of the logo, the applicant may limit protection solely to the elements mentioned in the description. For example, a description detailing a logo with specific colours and a particular typography could be construed as restricting trademark protection to those elements alone. Accordingly, any variation not described in the application may fall outside the scope of protection, thereby weakening the proprietor’s position in the event of infringement.

A litigation tool for third parties

Finally, the description of a logo may become a fertile ground for challenge by competitors. A competitor may seize upon an inconsistency between the description and the image of the logo in an attempt to undermine the validity of the trademark. Discrepancies between the text and the graphic representation may thus be relied upon to call into question the protection afforded to the trademark and to introduce uncertainty as to the outcome of the litigation. These arguments, while often characterised as formal in nature, may have a real impact on the legal robustness of the trademark.

The key lesson from recent case law : Babek International Limited v Iceland Foods Limited

The case Babek International v. Iceland Foods handed down by the UK High Court of Justice on October 23, 2025, perfectly illustrates the risks associated with the addition of a description in a trademark application. In that case, the proprietor of the trademark had accompanied its logo with a description referring to colours and an ’embossed’ (relief) effect.

The defendant relied on this description to challenge the validity of the trademark, highlighting an inconsistency between the description and the graphic representation of the logo. Although the defendant’s arguments were not upheld at first instance, the case nevertheless raised fundamental questions regarding the legal impact of adding descriptions to trademark applications.

Analysis of the court of appeal’s judgment

One of the legal errors identified by the Court of Appeal in this case concerned the application of a ‘capacity to distinguish test’ an erroneous criterion used by the court of first instance to assess the description of the trademark. The court had suggested that the colour of a logo should be specified in detail (for example, by reference to a Pantone code) where that colour was essential to the trademark’s capacity to distinguish itself from others. However, the Court of Appeal rejected this approach, holding that the validity of a trademark did not depend solely on the precise specification of colours, but rather on compliance with three principal conditions:

• (1) constituting a sign;
• (2) being capable of graphic representation; and
• (3) being capable of distinguishing goods or services.

This reinforces the view that the graphic representation is, in itself, sufficient to define the scope of protection, and that descriptions may create greater legal risks than they provide additional legal certainty.

Exceptional cases where a description may be useful

Notwithstanding the risks outlined above, there are situations in which a description may be justified. However, in such cases, it must be used with caution and must remain strictly functional, without seeking to introduce unnecessary detail.

Non-traditional trademarks

For non-traditional trademarks, such as sound, motion or multimedia trademarks, the graphic representation alone may be insufficient to fully describe the sign. In such cases, a supplementary description may be necessary to explain the distinctive character of the sign. For example, a sound trademark or a colour trademark may benefit from additional description to clarify its use or its distinctive effect.

Claims to specific colours

Where colour plays a crucial role in the identity of the trademark, it may be relevant to add a description specifying the shades used, particularly where they are codified or standardised. Even so, excessive detail should be avoided, and the description should be limited to what is clear and precise.

Particular configurations of complex trademarks

Finally, in the case of highly complex logos combining multiple distinctive elements (for example, geometric shapes, lighting effects, etc.), it may be useful to add a description clarifying certain technical aspects of the logo, so as to ensure comprehensive protection.

Our strategic recommendations for a secure filing

In the context of a trademark filing with a logo, it is essential to adopt a strategic approach that prioritises simplicity and clarity. Our principal recommendations are as follows:

1. Assess the visual intelligibility of the logo: The logo must be immediately understood by anyone who sees it, without the need for a description. If this is not the case, a description may be considered, but it should be kept very concise and precise.
2. Ensure consistency with the visual: Before adding a description, it is necessary to ensure that it does not risk impairing the coherence of the logo or introducing ambiguities.
3. Anticipate legal risks: Adding a description may be turned against the applicant. It is therefore important to ask: ‘Could this description limit our protection?’ If the answer is yes, it is better to refrain from including one.
4. Prioritise legal robustness: The application should seek to protect the trademark in its entirety, without reducing the scope of that protection to overly specific elements. Opposition or invalidity proceedings may indeed rely on any formal weakness in the initial application.

Conclusion

Ultimately, the answer to the question ‘Should you add a description when filing a trademark  with a logo?’ is clear: no, except in exceptional circumstances. The graphic representation is, in principle, sufficient to ensure effective legal protection, whereas a description may introduce unnecessary limitations. Trademark law rests on a global visual assessment, and a textual interpretation may often be detrimental to the clarity and effectiveness of the protection.

The Babek case perfectly illustrates the legal dangers associated with adding a description: a description, however apparently straightforward, may give rise to costly proceedings and more rigorous scrutiny of the trademark, with risks of ambiguity that may undermine its validity. In cases of doubt, it is therefore recommended to limit the application to the graphic representation alone.

Dreyfus & Associés assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus & Associés works in partnership with a global network of attorneys specializing in Intellectual Property.

Nathalie Dreyfus with the support of the entire Dreyfus team

Q&A

1. In what circumstances may a trademark be refused on account of an incorrect description?

Where the description added is ambiguous or inconsistent with the graphic representation of the trademark, this may lead to a refusal. For example, a description suggesting three-dimensional characteristics where the logo is two-dimensional may constitute a ground for refusal. The competent authorities will examine the consistency between the text and the image to ensure that the trademark is properly defined and that it satisfies the criteria of clarity and precision required for registration.

2. Does the absence of a description reduce the protection afforded to a figurative trademark?

No. As a matter of principle, the protection afforded to a figurative trademark is based on the visual representation as filed. Intellectual property offices and courts primarily assess the overall impression produced by the sign, irrespective of any textual description.

3. Can a description added when filing a trademark be relied upon against the proprietor in infringement proceedings?

Yes. Where the description confines the trademark to very specific elements, such as precise colours or particular visual effects, a defendant may argue that the allegedly infringing sign does not faithfully reproduce the elements described and therefore falls outside the scope of protection. The description may thus become a double-edged sword: it can narrow the scope of protection in offensive proceedings just as much as it may weaken the mark in defence.

4. Does the description of a trademark affect the court’s assessment in opposition proceedings?

In opposition proceedings, the registration office compares the marks as they are perceived visually, phonetically and conceptually by the average consumer. A restrictive description may lead the examiner or board of appeal to limit the comparison to the elements expressly described, potentially reducing the prospects of success of the opposition.

5. Can a description strengthen the distinctive character of a trademark?

In practice, this is rarely the case. Distinctive character is assessed primarily by reference to the sign itself and the perception of the relevant public. A description does not automatically enhance the legal distinctiveness of a logo.

This publication is intended for general public guidance and to highlight issues. It is not intended to apply to specific circumstances or to constitute legal advice.

Introduction

The judgment in Case T-159/24 of September 24, 2025, delivered by the General Court of the European Union in relation to the ‘Cripps Pink’ and ‘Cripps Red’ varieties, constitutes an important decision in the field of plant variety rights (PVRs). While it does not rule on the nullity of the rights at issue, it validates a decisive step : the opening of nullity proceedings based on the existence of serious doubts as to novelty within the meaning of Regulation (EC) No 2100/94.

Situated at the intersection of plant breeding and the international circulation of plant material, this decision highlights a central issue in plant variety law : reconciling early-stage dissemination practices, often necessary for agronomic development, with the requirement to preserve commercial novelty.

The ruling recalls that insufficiently controlled dissemination of a variety, or of its plant material, may, where it occurs in a context of economic exploitation, be regarded as novelty-destroying.

Legal framework applicable to plant varieties in the European Union

The European plant variety rights regime is based on Council Regulation (EC) No 2100/94 of July 27, 1994 , which establishes a Community protection title producing uniform effects throughout the territory of the European Union. This system is administered by the Community Plant Variety Office (CPVO), which is responsible for examining applications and managing rights. The Regulation thus establishes an autonomous regime for the protection of plant varieties, distinct from patent law both in terms of its conditions and its subject matter, even though these two systems coexist in practice in the field of agronomic and biotechnological innovation.

This autonomy of plant variety rights is particularly important where the variety has already circulated before the filing of the application for protection. In practice, trials, transfers of plant material or exchanges with partners may take place before the title is granted. At what point can such prior dissemination, apparently preparatory or experimental in nature, be regarded as a making available capable of destroying the novelty of the variety ?

To answer this question, it is necessary to return to the conditions governing the validity of the title. As a matter of substance, the validity of a protection title requires, in particular, that the variety be :

• distinct (Article 7),
• uniform (Article 8),
• stable (Article 9),
• and new (Article 10).

These four criteria are known by the acronym DUS + N.

As regards novelty, Article 10 of the Regulation does not adopt a logic of absolute novelty comparable to that of patent law. It follows a logic of commercial novelty : a variety is deemed to be new if, at the filing date, its variety constituents or harvested material have not been sold or otherwise disposed of to others, by the breeder or with his consent, for the purposes of exploitation of the variety, more than one year before that date within the European Union, or more than four years outside the Union, this period being extended to six years for trees and vines. This framework reflects the structure of the 1991 UPOV Convention , which remains the international matrix of plant variety rights.

This approach explains why the analysis does not focus solely on the existence of prior circulation of the plant material, but also on the concrete circumstances in which it took place : the purpose of the transfer, the contractual framework, the degree of control retained by the breeder and the economic context of the dissemination.

In the case of apple varieties protected in the late 1990s, the economic stakes of a potential challenge to the title therefore remain real, even where the protection is approaching the end of its term.

Nullity procedure before the CPVO

The application for a declaration of nullity is first examined by the CPVO, acting as the competent administrative authority at first instance. The Office assesses the evidence submitted by the applicant and may, depending on the stage of the procedure, either refuse to open an examination on the merits or initiate such an examination in order to determine whether the conditions for the validity of the right were in fact satisfied at the time it was granted.

The CPVO’s decision may then be appealed before the Board of Appeal of the CPVO. This Board, which is the Office’s internal administrative appeal body, reviews the legality and merits of the contested decision. It may uphold the CPVO’s decision, annul it, exercise the powers of the Office itself, or remit the case to the competent body of the CPVO for further action.

Finally, the decision of the Board of Appeal may be challenged before the General Court of the European Union. The General Court then carries out judicial review of the decision of the Board of Appeal.

Facts and procedure in case T-159/24

‘Cripps Pink’, marketed under the Pink Lady® brand, and ‘Cripps Red’, marketed under the Sundowner® brand, were developed by John Cripps from a cross between ‘Golden Delicious’ and ‘Lady Williams’ made in 1973. Community plant variety rights were subsequently granted by the CPVO in 1997 for ‘Cripps Pink’ and in 1998 for ‘Cripps Red’.

The difficulty lies in the circumstances in which those varieties circulated before they were protected in Europe. At the time, Australia did not yet have a regime comparable to the European system for the protection of plant varieties. The debate therefore concerned the characterisation of the transfers of plant material that had taken place before the critical date : were they merely for testing or commercial evaluation, or did they amount to making the varieties available for exploitation, capable of destroying their novelty ?

This issue was not new : it had already given rise to an initial nullity procedure, which had, however, been unsuccessful. In 2014, Pink Lady America LLC sought a declaration of nullity of the Community plant variety right relating to ‘Cripps Pink’, arguing that the variety was not new. By judgment of 24 September 2019 in Case T-112/18, the General Court dismissed the action brought against the decision of the Board of Appeal of the CPVO of 14 September 2017 in Case A 007/2016. The evidence produced at that time had led to the conclusion that the earlier transfers of plant material had taken place within a framework of testing or commercial evaluation, without amounting to commercial exploitation capable of destroying novelty.

Case T-159/24 follows on from that first dispute. In the new proceedings, Teak Enterprises Pty Ltd was the holder of a variety known under the denominations ‘Barnsby’ or ‘PLBAR B1’, presented as a mutation of ‘Cripps Pink’ and recognised as an essentially derived variety, meaning that its commercialisation depended on the authorisation of the holder of the initial variety.

In May 2021, the CPVO refused to open nullity proceedings against ‘Cripps Pink’ and ‘Cripps Red’, taking the view that the evidence produced did not give rise to serious doubts as to their novelty. That decision was, however, annulled by the CPVO Board of Appeal on 12 January 2024 in Joined Cases A 019/2021 and A 020/2021. The Western Australian Agriculture Authority, holder of the rights at issue, then brought an action before the General Court of the European Union.

By its judgment of 24 September 2025 in Case T-159/24, the General Court dismissed that action. It did not, however, declare the Community plant variety rights invalid. The scope of the judgment is more limited, but essential : the General Court confirms that the new evidence produced by Teak Enterprises was capable of giving rise to serious doubts as to the novelty of the varieties, thereby justifying the opening of nullity proceedings.

The issue therefore focuses on the condition of novelty. For apple trees, the grace period applicable to acts carried out outside the European Union is six years, meaning that the critical date was set at 29 August 1989. Any sale or making available to third parties, by the breeder or with his consent, for purposes of exploitation before that date was therefore capable of affecting the validity of the rights.

The General Court’s reasoning : novelty, implied consent and “serious doubts”

The Court first rejected the argument that the CPVO was bound by the judgment in case T-112/18. That earlier case was not based on the same evidence and concerned only ‘Cripps Pink’, whereas the new application also concerned ‘Cripps Red’.

The Court then recalled that nullity proceedings involve two distinct stages. At this stage, the issue was not yet to declare the rights null and void, but only to determine whether the evidence submitted gave rise to “serious doubts” as to their validity.

As regards the burden of proof, the Court confirmed that it lies with the applicant for a declaration of nullity. However, at the stage of “serious doubts”, the applicant is not required to fully establish the invalidity of the right : it must only produce evidence that is sufficiently clear, specific and substantiated to justify an examination of the merits by the CPVO. According to the Court, the new evidence relied on by Teak Enterprises met that requirement.

The judgment also provides an important clarification regarding the breeder’s consent. Such consent may be inferred from the circumstances : the absence of a written licence is therefore not sufficient to rule out consent where the conditions under which the plant material was supplied reveal a genuine absence of restrictions.

Finally, the Court endorsed the analysis that certain supplies could go beyond the framework of mere trials and form part of a process of dissemination for economic purposes. It was precisely this uncertainty that justified the continuation of the nullity proceedings.

Implications for breeders, right holders and licensees

For breeders, this decision highlights the importance of a rigorous legal framework governing the dissemination of plant material from the earliest stages of development. The conditions of trials, transfers of material and usage restrictions must be clearly defined and documented.

For existing right holders and licensees, the judgment underscores that a right is not definitively secure where new evidence emerges. A favourable prior decision does not preclude a new challenge if it is based on a different evidentiary record.

In a sector where proof often relies on historical practices and fragmented documentation, traceability and proper record-keeping are essential.

Conclusion

The judgment in Case T-159/24 does not declare the plant variety rights relating to the ‘Cripps Pink’ and ‘Cripps Red’ varieties null and void. It does, however, confirm that the validity of those rights may be re-examined where new evidence gives rise to serious doubts as to compliance with the novelty requirement.

The main contribution of the decision lies in the analytical method adopted by the General Court. Novelty is not assessed in the abstract, but by reference to the specific circumstances in which the plant material was disseminated before the application was filed. In particular, the Court takes into account the purpose of the transfer, the existence or absence of restrictions on use, the degree of control retained by the breeder, and the economic context of the dissemination.

Dreyfus & Associés assists its clients in addressing complex issues relating to plant variety rights, providing tailored advice and comprehensive support in implementing and optimising protection strategies across all areas of intellectual property (plant variety rights, patents, trademarks and know-how).

Dreyfus & Associés works in partnership with a global network of specialized intellectual property lawyers.

Nathalie Dreyfus with the support of the entire Dreyfus team.

Q&A

1. Is my plant variety right at risk after this judgment, even if it has already been upheld once ?

Potentially, yes. The central contribution of the judgment in Case T-159/24 is precisely that a favourable prior ruling does not prevent a new challenge, provided it is based on a distinct case file : new witnesses, new instances of dissemination, broader scope. ‘Cripps Pink’ was successfully defended in 2019 (Case T-112/18); six years later, it faces a substantive nullity examination. No right is definitively shielded as long as new evidence may emerge.

2. What is the concrete difference between “experimental trials” and “commercial exploitation” ?

The distinction does not depend on the label attached to the operation but on the concrete conditions under which the material is made available. An experimental trial requires strict framing : limited geographical scope, restricted audience, written prohibition of replanting and marketing, and documented traceability of transfers. Conversely, transfers made without restriction to growers oriented towards commercialisation amount to economic dissemination, even if the parties label them as trials. In the ‘Cripps Pink’ case, it is precisely these factual conditions that tipped the analysis in 2025.

3. The breeder’s implied consent : what does it change in practice ?

Everything. Before this judgment, one could reasonably assume that the absence of a formal licence was sufficient to exclude the breeder’s consent. The General Court now accepts that consent may be inferred from the circumstances : unrestricted transfers, lack of patent or other intellectual property protection, broader context oriented towards economic exploitation. For breeders, this means that contractual silence is no longer protective : what is not expressly prohibited may be interpreted as tacitly authorised.

4. What are the concrete risks for licensees and operators if nullity is ultimately granted ?

For Community plant variety rights, nullity has retroactive effect (Article 20 of Regulation No. 2100/94 ) : the right is retroactively deprived of its effects. The practical consequences are significant : loss of the exclusive exploitation monopoly, weakening of ongoing licence agreements, possible challenge to royalties already collected, and exposure of operators to actions from third parties who had been subject to the monopoly. Anticipating the risk of nullity when drafting contracts, through warranty clauses, risk-sharing mechanisms or royalty adjustment provisions, has become an operational necessity, not a sophistication.

5. How to secure a variety breeding programme effectively, starting today ?

Four structuring reflexes: (i) formalise in writing any transfer of plant material, even to trusted partners, expressly prohibiting replanting and marketing; (ii) maintain a dated and exhaustive register of transfers (recipient, volume, purpose, restrictions); (iii) anticipate the protection strategy, CPVO filing, possible articulation with a patent, before any economically oriented dissemination; (iv) periodically audit the existing portfolio to identify documentary weaknesses before a third party does it for you.

This publication is intended for general public guidance and to highlight issues. It is not intended to apply to specific circumstances or to constitute legal advice.

Introduction

The valuation of intangible assets consists in identifying, organising and assessing the non-physical elements that contribute to the economic value of a business. The issue is straightforward: what has not been identified, protected and documented is difficult to value.

A serious valuation exercise therefore does not consist in arbitrarily assigning an attractive figure to an asset. It requires demonstrating that the asset exists, that it is duly owned by the company, that it is enforceable against third parties, that it has economic relevance, and that it is capable of generating or securing revenue.

Identifying intangible assets that can truly be valued

The first step consists in drawing up an inventory of the company’s intangible assets. Not all such assets are based on the same legal foundation, and not all are valued in the same manner.

Certain assets are protected by industrial property titles. This is the case for trademarks, patents and designs rights.

• A trademark may embody the company’s reputation, customer trust and commercial distinctiveness. Its value depends, in particular, on its distinctiveness, the territory in which it is protected, its reputation, its effective use and its ability to support a commercial strategy.
• A patent, for its part, may constitute a strategic asset where it protects a key technology, limits competitors’ market entry or enables revenue to be generated through licensing.
• Designs rights, in turn, may also constitute valuable assets where they protect the appearance of a product, its design, lines or aesthetic features, thereby contributing to its commercial appeal and differentiation on the market.

Other assets fall more within the scope of copyright, contract law or internal documentation. Software, applications, algorithms, interfaces, databases, graphic content and original creations may represent significant value, particularly in the technology and digital sectors. Their valuation nevertheless requires verification of ownership of the rights, especially where the creations have been produced by employees, freelancers, service providers or partners.

Finally, certain assets are not necessarily registered but may nevertheless be essential to the company’s business. Know-how and trade secrets, including internal methods, commercial data, protocols, formulas, pricing strategies and customer information, may constitute a decisive competitive advantage. Their value then depends on their confidential nature, their economic usefulness and the measures implemented to preserve their confidentiality.

Legally securing rights prior to any valuation

Prior to any valuation, intellectual property due diligence is essential. An investor, acquirer or partner does not merely value an idea, a technology or a trademark: they value an asset that the company can effectively exploit, defend and transfer.

This review must make it possible to answer several key questions. Is the company indeed the holder of the rights? Are the trademarks, patents, designs registered in the relevant territories? Do the employment, service provision or assignment agreements contain appropriate clauses? Do licences granted to third parties restrict the freedom to operate? Are trade secrets subject to sufficient protection measures?

This step is decisive. High-performing software developed without a valid agreement, a trademark used but not registered in the appropriate territories, or strategic know-how insufficiently protected may lose a substantial part of its value during due diligence.

Conversely, clear and comprehensive documentation strengthens the credibility of the valuation. It demonstrates that the company has control over its intangible assets and is able to derive a secure economic advantage from them.

Choosing an appropriate valuation method

Once the assets have been identified and secured, their valuation may be considered. There is no single method: the approach adopted depends on the nature of the asset, its stage of development, its exploitation, its market and the company’s strategy.

• The cost approach

This method consists in assessing the investments required to create, develop or replace the asset. It may take into account research and development expenditure, design costs, filing fees, professional fees, technical development costs and market launch costs.

This method is useful for recent assets or assets that are still only marginally exploited, but it has one limitation: the cost of creation does not always reflect the asset’s actual economic value. A costly patent may prove difficult to exploit, whereas a trademark created with limited resources may become highly profitable.

• The market approach

This method consists in valuing an intellectual property asset by comparing it with transactions involving similar assets, such as patent assignments, trademark licences, software valuations, franchise agreements or comparable transactions in the same sector. This method is based on the idea that the financial terms observed for a comparable asset may serve as a reference for assessing the value of the asset being valued.

The comparison must, however, be carried out with caution. The assets used as references must have similar characteristics, particularly with regard to the business sector, the territory concerned, the duration of the rights, the degree of exclusivity granted, the reputation of the asset, its stage of development and its commercial potential.

In practice, however, its application may be difficult, as the financial terms of licence or assignment agreements are often confidential.

• The income approach

This method consists in assessing the future income that the asset may generate or secure. It may include licensing royalties, cost savings, additional margins or commercial exclusivity. This method is often the most meaningful for investors, as it directly links the intangible asset to future economic performance. It nevertheless requires robust, documented and prudent assumptions.

In practice, these methods may be combined. The valuation must remain consistent with the legal, economic and commercial reality of the asset concerned.

Turning intangible assets into revenue

The valuation of intangible assets is not solely an accounting or financial exercise. It also makes it possible to structure their exploitation and turn them into sources of revenue.

• Licensing

A licence enables the company to retain ownership of the asset while authorising a third party to exploit it. It may be exclusive or non-exclusive, and may be limited to a territory, a duration, a sector or a category of products. Remuneration may take the form of a lump sum, royalties proportional to turnover, guaranteed minimums or a combination of these mechanisms.

• Assignment

An assignment, by contrast, enables the ownership of the asset to be transferred to a third party. It may generate immediate revenue but entails a loss of control. It should therefore be considered with caution, particularly where the asset concerned is central to the company’s strategy.

Other mechanisms may also be used to exploit the value of intangible assets. Co-branding may bring together two trademarks in order to create a joint offering. Franchising, for its part, is based on the structured provision of a set of intangible assets enabling the franchisee to reproduce a commercial concept, such as trademarks, know-how, commercial methods or distinctive signs, for example.

In all cases, valuation requires a rigorous contractual framework. An intangible asset creates lasting value only if the conditions governing its exploitation are clearly defined and legally secured.

Conclusion

The valuation of intangible assets is based on a progressive approach. It is first necessary to identify the assets that may be valued, then to secure their ownership and enforceability, before selecting an appropriate valuation method and considering their monetisation.

For an innovative company, this approach can make the difference between an asset that is difficult to defend and a genuine lever for growth, financing and negotiation.

Dreyfus law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus law firm works in partnership with a global network of attorneys specializing in intellectual property.

Nathalie Dreyfus with the support of the entire Dreyfus team.

Q&A

1. Can open-source components reduce the value of software?

They may do so depending on the licences used. Certain open-source licences impose specific obligations, particularly with respect to redistribution, attribution of authorship or making the source code available. Poor management of these licences may create legal risk and reduce the value of the software during due diligence.

2. Can the departure of an employee affect the value of an intangible asset?

Yes, particularly where key know-how or knowledge is not sufficiently documented or protected. If the asset depends solely on one individual, its value is more fragile. The company must therefore organise internal knowledge transfer, confidentiality and the preservation of essential elements.

3. How can an intangible asset be prevented from losing value over time?

Rights must be kept in force, titles renewed where necessary, unauthorised uses monitored, documentation updated, contracts adapted and the asset continuously exploited. An intangible asset that is not properly maintained may gradually lose both its legal and economic value.

4. Can an overvaluation be risky?

An excessive or insufficiently documented valuation may result in a loss of credibility with investors, acquirers or partners. It may also be challenged in the context of a financial transaction. The valuation must therefore remain prudent, justified and consistent with the available data.

5. Can intangible assets be used as collateral or as a financing lever?

In certain circumstances, yes. Some intangible assets may be taken into account in financing transactions, pledges or asset-structuring arrangements. However, their acceptance depends on their demonstrable value, legal certainty and potential liquidity.

The purpose of this publication is to provide general guidance to the public and to highlight certain issues. It is not intended to apply to particular situations or to constitute legal advice.