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The European Parliament Adopts New Measures for More Sustainable Packaging

Written by Dreyfus18/12/2024

In a context where each European generates nearly 190 kilograms of packaging waste annually, the EU has seen a steady increase in this waste, from 66 million tonnes in 2009 to 84 million tonnes in 2021. Packaging generated a turnover of 355 billion euros in 2018, highlighting both its economic importance and environmental impact.

On November 22, 2023, the European Parliament and the Council made a significant step in combating packaging waste by reaching a provisional agreement on a set of measures aimed at redefining the European packaging market.

On April 24, 2024, the Parliament adopted these new measures with 476 votes in favor, 129 against, and 24 abstentions. The deputies resisted intense lobbying to promote a more circular and sustainable economy.

This regulation is part of the European Green Deal, launched in 2019, which aims to make Europe the first carbon-neutral continent by 2050 and to reduce greenhouse gas emissions by 55% compared to 1990 levels by 2030, in line with the European climate law of June 2021 and the directive on single-use plastics.

Objectives of the New Regulation

With these measures covering the entire lifecycle of packaging, the Parliament’s objectives are clear: to meet citizens’ expectations to build a circular economy, avoid waste, phase out unsustainable packaging, and combat the use of single-use plastic packaging.

Among the key objectives, the EU commits to reducing the amount of packaging by 5% by 2030, 10% by 2035, and 15% by 2040, focusing on reducing plastic packaging. To achieve this, from 2030, the circulation of single-use packaging such as packaging for unprocessed fruits and vegetables will be banned, often criticized by the association Greenpeace under the hashtag #RidiculousPackaging.

In addition to the ban on unnecessary packaging, the new measures impose restrictions on the void ratio in packaging, prohibiting packaging that contains more than 50% empty space.

Furthermore, to protect consumer health, strict limits will be set regarding the use of perfluorinated and polyfluorinated alkyl substances (PFAS) in food packaging.

Promoting Recycling

From January 1, 2030, most packaging sold in the European Union must be recyclable and will be classified based on its recyclability level. It is planned that packaging must be made up of at least 10% recycled products. Additionally, a label will inform consumers about the contents of these packages.

To enhance the recycling of packaging, containers of plastic or metal beverages less than 3 liters must be collected separately with a deposit system. However, there is a significant exception for wine, spirits, milk, and dairy products.

Conclusion

Frédérique Ries, the rapporteur of the proposal, emphasized that for the first time, the EU sets packaging reduction targets regardless of the material used. The new rules encourage innovation and include exemptions for micro-enterprises while banning single-use chemicals in food packaging. This regulation is seen as a victory for the health of European consumers and calls for collaboration among all industrial sectors, EU member states, and consumers to combat excessive packaging.

The Council still needs to formally approve this agreement before it comes into effect. However, this legislation marks a further step towards achieving the EU’s environmental goals, incorporating citizens’ concerns for more sustainable resource management and reducing the environmental impacts of packaging. Dreyfus is committed to the environment to reduce our waste and optimize our energy consumption.

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The Importance of Monitoring Brands on Social Media and Advanced Strategies to Counter Infringements

Written by Dreyfus17/12/2024

Online presence plays a crucial role in shaping a brand’s image, but this visibility also exposes it to significant risks such as counterfeiting, defamation, and rights violations. Social media, as both a catalyst for opportunities and a breeding ground for threats, demands increased vigilance. Companies must integrate monitoring as a fundamental element of their intangible asset management strategy. Dreyfus, an expert in intellectual property, positions itself as a key player in this field by providing tailored technical and legal solutions.

The Imperative of Proactive Monitoring on Social Media

Contrary to a commonly held assumption, content hosts (Facebook, Instagram, TikTok, etc.) are not legally obligated to actively monitor what is posted. According to the European Directive 2000/31/EC on electronic commerce, these technical intermediaries can only be held liable once notified of the existence of illegal content. This legal gap forces companies to assume active monitoring themselves to protect their brand.

The risks faced by companies that neglect monitoring are diverse and severe:

  • Counterfeiting: The dissemination of counterfeit products via social media affects revenues and weakens brand image.
  • Defamation and Smear Campaigns: A viral negative publication can irreparably damage a company’s reputation.
  • Identity Theft: Fake accounts exploiting the name of a brand or its executives undermine stakeholder trust.
  • Intellectual Property Rights Violations: Unauthorized use of logos or trade names can erode the legal protection of these assets.

Takedown Mechanisms: Pillars of a Reactive Response

Platforms such as Amazon, Alibaba, and Facebook have implemented “notice and takedown” procedures that allow illegal content to be reported and removed. These mechanisms directly address the proliferation of infringements within their ecosystems.

Typical Steps in a Takedown Procedure

  1. Identifying Infringing Content: This involves automated tools or manual analysis to pinpoint problematic posts.
  2. Notifying the Host: A formal request, including evidence of the violation, is submitted to the relevant platform.
  3. Review by the Host: Moderation teams assess the compliance of the request with internal policies and the legal framework.
  4. Content Removal: If the complaint is valid, the illegal content is swiftly deleted or blocked.
  5. Follow-up and Escalation: In cases of rejection or recurrence, legal actions may be considered.

A notable example is Amazon’s “Brand Registry” program, which provides brand owners with tools to monitor listings and report violations. Alibaba offers similar functionalities tailored to the Asian e-commerce context.

Why Rely on a Specialist Like Dreyfus?

Turning to experts maximizes the chances of success and minimizes delays in takedown procedures. Dreyfus offers:

  • Deep Legal Expertise: Each case is evaluated based on the applicable legal framework and relevant jurisprudence.
  • Advanced Technological Tools: Automated monitoring ensures rapid and accurate detection of infringements.
  • Comprehensive Support: From initial monitoring to potential legal proceedings, Dreyfus handles the entire process.

Social Media: Opportunities and Vulnerabilities

The open and participatory nature of social media, while a source of marketing opportunities, also serves as a gateway for various infringements.

  • Fraudulent Advertisements: These exploit a brand’s image to redirect users to counterfeit sites.
  • Shocking or Controversial Content: Associating a brand with controversial themes harms its public perception.
  • Orchestrated Smear Campaigns: Fabricated negative reviews, hostile hashtags, or defamatory posts erode reputation.

Three Strategic Axes for Enhanced Protection

Brands must adopt a multi-level approach: proactive, preventive, and reactive.

  1. Proactive: Maintain a Visible and Active Presence

Regular communication on social media helps monitor and control discussions about the brand.

  1. Preventive: Implement Structured Monitoring

Surveillance tools—such as automated crawlers or configurable alerts—detect potential infringements before they escalate.

  1. Reactive: Leverage Legal and Technical Remedies

Takedown procedures and legal actions remain essential steps to counter confirmed infringements.

A Changing Future: Challenges and Perspectives

The rapid evolution of technologies and online practices presents new challenges:

  • The Emergence of Deepfakes: These falsified contents complicate issues of defamation and counterfeiting.
  • Increased Regulation: The legal framework governing platforms could evolve, affecting host responsibilities.
  • Dual Use of Artificial Intelligence: While useful for monitoring, AI can also be exploited for malicious purposes.

Conclusion

Monitoring brands on social media is an indispensable strategic issue. Given the absence of proactive oversight by platforms, it is essential for companies to adopt comprehensive defense strategies. With the support of experts like Dreyfus, they can anticipate and counter threats while ensuring the sustainability and credibility of their brand in an ever-evolving digital environment.

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Legal challenges of product similarity in the fashion industry

Written by Dreyfus09/12/2024

The fashion industry, known for its dynamism and innovation, is also a sector where protecting trademarks and designs is essential. One of the major challenges brands face in this field is product similarity. The definition and interpretation of this similarity have a direct impact on the scope of legal protections, particularly for trademarks, patents, and designs. This article examines various aspects of product similarity in the fashion industry, based on recent jurisprudence and developments in the field.

CONTENTS

  • What is product similarity?
  • The INPI vs. the Paris Court of Appeal: A jurisprudential divergence
  • The importance of similarity for fashion industry players
  • The rise of “dupes”: A threat to intellectual property
  • The need for jurisprudential clarification to ensure legal certainty

What is product similarity?

Product similarity refers to the evaluation of the degree of resemblance between two products or services, particularly in the context of trademark registration. This assessment is crucial as it determines whether a product or brand already exists on the market and whether another product could cause confusion among consumers.

In the fashion industry, this involves comparing not only the products themselves (clothing, accessories, perfumes) but also their uses, target audiences, and consumer perceptions. Competent authorities, such as the INPI (French Intellectual Property Office) or the Paris Court of Appeal, are responsible for resolving such disputes when a trademark is contested.

The criteria for similarity include:

  • Physical characteristics of the product: shape, color, material, etc.
  • Visual impression: how a consumer might perceive the products when observing them.
  • Purpose and use: products serving similar purposes may be deemed similar.
  • Target audience: for example, a luxury brand and an average ready-to-wear brand, while visually similar, may target different market segments and not cause confusion.

The INPI vs. the Paris Court of Appeal: A jurisprudential divergence

Differences in the interpretation of product similarity in the fashion industry have led to contradictory decisions. In some cases, the INPI considers perfumery, jewelry, and watchmaking products to be marginally similar to clothing. According to the INPI, similarity lies in the potential association between these products in the consumer’s mind, which could cause confusion regarding their origin.

However, the Paris Court of Appeal adopts a stricter stance, often relying on jurisprudence from the European Union’s General Court. The Court views the similarity between products as different as clothing and fashion accessories, such as jewelry or watches, as more limited due to clear differences in their use, design, and presentation.

These divergences create legal uncertainty for fashion industry players. Brands may face difficulties determining whether their protections cover all related products or if their trademarks might be challenged over similar but non-identical products. This raises broader questions about intellectual property protection, particularly regarding the scope and validity of registered trademarks.

The importance of similarity for fashion industry players

For fashion brands, legal protection depends on creating a strong and distinct identity. Industry players must be vigilant to avoid their products being perceived as copies of existing designs. This requires a differentiation strategy based on:

  • Innovative and unique designs
  • A clear brand image
  • Effective communication campaigns

Legal decisions on product similarity directly influence this strategy, as they determine how far a brand can go in launching new products while respecting the intellectual property rights of others.

The rise of “dupes”: A threat to intellectual property

The proliferation of “dupes,” imitations of high-end products offered at affordable prices, disrupts traditional notions of intellectual property protection. These products, widely popularized on social media, blur the line between legitimate inspiration and counterfeiting. While they do not claim to impersonate a brand, their visual or functional similarity can confuse consumers and diminish the perceived value of original products.

Legal challenges posed by dupes include exploiting grey areas in existing protections. Although designs effectively protect certain distinctive features, they often fail to counter such imitations. Shape trademarks and copyright laws, while helpful, involve complex and often lengthy legal proceedings.

The rise of dupe culture reflects admiration for luxury products and a desire to democratize style. However, it also poses an economic risk to established brands. By flooding the market with low-cost products, dupes undermine the exclusivity and innovation that define luxury brands.

In a context where consumers increasingly gravitate toward these alternatives, brands must double down on differentiation efforts through both designs and communication. Explicit recognition of intellectual property rights, combined with a proactive strategy against dupes, is crucial for maintaining their market position.

The need for jurisprudential clarification to ensure legal certainty

Disputes over product similarity are common in the fashion industry, as many brands seek to protect distinctive elements such as patterns, cuts, or logos. These disputes can result in significant costs, not only for the parties directly involved but also for the entire market due to the length and complexity of legal proceedings.

The evolution of judicial decisions demonstrates that product similarity in the fashion industry is a constantly evolving concept. The divergences in interpretation between the INPI and the Paris Court of Appeal highlight the need for legal clarification. More consistent jurisprudence would better frame trademark protections and mitigate current legal uncertainty.

Clarifying the criteria for product similarity would enhance legal certainty for fashion industry players. In the meantime, brands must remain particularly vigilant and adopt robust differentiation strategies to protect against litigation and consumer confusion.

The fashion industry, with its specificities, requires in-depth analysis of products, their uses, and consumer perceptions to ensure effective intellectual property protection. The challenge lies in brands’ ability to navigate this complexity while remaining innovative and distinctive.

Our experts are at your disposal to advise you on intellectual property strategy and online brand protection. Dreyfus Law Firm works in partnership with a global network of intellectual property lawyers.

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The NIS 2 Directive: Towards stronger, harmonized European cybersecurity

Written by Dreyfus02/12/2024

A new directive at the heart of European challenges

The NIS 2 Directive, published on December 27, 2022 in the Official Journal of the European Union, represents an ambitious response to the intensification of cyber threats. With a deadline for transposition into national law set for October 17, 2024, this regulation strengthens and expands the framework established by the first NIS Directive, adopted in 2016. It imposes harmonized requirements, designed to strengthen the security of networks and critical information systems in all member states.

Unlike its predecessor, NIS 2 applies to a considerably larger number of entities and business sectors, reflecting a growing recognition of the risks posed by cyber-attacks. Its ambition is to ensure greater resilience for critical infrastructures, while boosting competitiveness and stakeholder confidence.

The main objectives of the NIS 2 Directive

The directive aims to protect strategic sectors essential to the smooth running of society and the economy. It targets areas such as energy, healthcare, transport and digital infrastructures. By introducing more stringent requirements, NIS 2 seeks to minimize the potential disruption caused by cyber-attacks.

One of the fundamental aims of the directive is to standardize practices between member states, thereby reducing regulatory disparities and facilitating compliance for entities operating in several countries. This harmonization creates a clear and coherent legal framework, strengthening cross-border cooperation in the face of cyber threats.

The obligations imposed by NIS 2

The directive distinguishes between two broad categories of entities, depending on their strategic importance: essential entities (EE) and important entities (EI). This differentiation is based on criteria such as size, turnover and the critical role played by the entity in its sector. Critical entities, because of their potential impact, are subject to more stringent obligations.

Under NIS 2, the entities concerned must put in place legal, technical and organizational measures to protect their information systems. This includes regular risk analysis, the implementation of appropriate solutions and the deployment of rapid response mechanisms in the event of an incident. Incidents with a significant impact will have to be reported to the ANSSI, which may initiate checks to verify compliance.

Failure to comply with these obligations could result in financial penalties of up to 2% of worldwide sales for EAs and 1.4% for EIs. These fines, proportionate to the seriousness of the breaches, are designed to ensure strict implementation of the measures set out in the directive.

Sectors covered by NIS 2

The directive covers a wide range of sectors, from digital infrastructure and healthcare to food production and postal services. By broadening its scope, NIS 2 recognizes the systemic nature of cyber-risks and the need for a comprehensive approach to protect essential services. This new framework also applies to public administrations, reflecting their central role in national resilience.

French transposition of the NIS 2 Directive

The transposition of the NIS 2 Directive in France is part of the bill on the resilience of critical infrastructures and the strengthening of cybersecurity, presented to the Council of Ministers on October 15, 2024. This text, which also incorporates the REC and DORA regulations, aims to strengthen the security of networks and information systems essential to critical and highly critical sectors. The Commission Supérieure du Numérique et des Postes (CSNP) has played an active role, issuing successive recommendations, notably on the clarification of the sectors concerned, the compliance deadline set at December 31, 2027, and the integration of adaptability clauses for technological advances, such as artificial intelligence. Once adopted by Parliament, the draft will be supplemented by some twenty implementing decrees, detailing the obligations of the entities concerned and finalizing security requirements, notably around the notion of Regulated Information System (RIS). This process illustrates France’s ambition to align itself with European standards, while taking account of national specificities.

ANSSI’s central role in implementation

As the national cybersecurity authority, ANSSI occupies a strategic position in the implementation of the NIS 2 directive. Charged with supporting entities subject to the directive, the agency has favored a collaborative approach, involving key industry players such as professional federations (UFE), cybersecurity associations (CLUSIF, CESIN) and qualified service providers (PASSI, PRIS, PDIS). This participative methodology led to in-depth consultations in 2023, covering the scope of the entities concerned, interactions with ANSSI and cybersecurity requirements.

Why prepare now?

The NIS 2 directive is more than just a legal obligation. It represents a strategic opportunity for companies and public authorities. By strengthening their cybersecurity practices, organizations can not only protect themselves against growing threats, but also enhance their competitiveness and strengthen the trust of their partners and customers. A proactive approach is essential to turn these constraints into a sustainable advantage.

The NIS 2 directive sets a new standard for cybersecurity in Europe. By tightening requirements and broadening the scope of entities concerned, it seeks to protect critical infrastructures in the face of growing cyber threats. French companies and public authorities need to prepare for these changes now, to ensure their resilience and competitiveness in an increasingly connected and interconnected environment.

Our experts are at your disposal to guide you through this transition and guarantee you optimum cybersecurity. Dreyfus Lawfirm works in partnership with a worldwide network of lawyers specialized in Intellectual Property.

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ICANN’s Accreditation of Blockchain-Specialized Companies: A New Chapter for Domain Names

Written by Dreyfus25/11/2024

The Internet Corporation for Assigned Names and Numbers (ICANN), plays a pivotal role in maintaining the security, stability, and interoperability of the internet. As a regulatory body, it also ensures to stimulate competition and develop policies for unique Internet identifiers.

ICANN’s Role in the Internet Ecosystem

ICANN is at the heart of the domain name management system, overseeing the registrar accreditation process. To be accredited, an entity must meet strict criteria including significant financial considerations, such as a minimum working capital. Following the approval of the application, an accreditation agreement is signed with ICANN. This regulatory framework ensures that the internet remains a globally open and accessible platform, safeguarding the security and stability of the domain name system.

Accreditation of Freenam and Unstoppable Domains by ICANN

Recently, ICANN accredited two companies specializing in blockchain technologies: Freenam and Unstoppable Domains. These accreditations were surprising, especially considering these entities were once critics of ICANN. This integration symbolizes a significant evolution in the internet ecosystem, reflecting an openness towards technological innovations and new paradigms in domain name management.

Freenam and Unstoppable Domains can now offer gTLDs (Generic Top-Level Domains), top-level domain extensions used globally, like “.com” or “.net”, and country-specific ccTLDs (Country Code Top-Level Domains), such as “.fr” for France or “.de” for Germany.

Before Accreditation: The Web3 Domain Offering

These entities already offered Web3 domain names, such as “.eth” or “.wallet”. These domain names differ radically from traditional extensions like “.com” as they do not name an IP address but rather a public key used for sending and receiving crypto assets on the blockchain, similar to an interactive IBAN capable of not only facilitating financial transactions but also interacting with smart contracts.

A Web3 domain is designed to be uncensorable and immutable. It allows users to link an easily memorable blockchain address to their crypto wallet, website, or social media profiles, without worrying about censorship or suspension of their domain name by a third party. These technical and functional characteristics invite us to question the suitability of the term “domain name”. Some authors suggest they be called “digital wallet names”.

While gTLD-type classic domain name extensions are assigned and managed under the control of ICANN, there is no international entity or organization for Web3 domain names, which are registered on a public blockchain, inherently decentralized. Moreover, these Web3 domain names are issued by naming companies that do not retain any administrative rights over these domain names or the smart contracts of the issued NFTs.

Future Perspectives

This accreditation is likely to intensify competition in the domain name sector, offering more choices and innovative features to users, in line with blockchain advancements. Benefits for end-users include more choices and enhanced security, as no third party can intervene to modify or delete these blockchain domains, thus eliminating the need for periodic renewal.

Conclusion

This new step in domain name regulation underscores ICANN’s continuous adaptation to new technological realities and its crucial role in facilitating an orderly transition to more innovative and secure domain name systems.

Thanks to its expertise in Web 3.0, Dreyfus Law Firm supports you through every stage of your blockchain projects.

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The International Trademark and the New Members of the Madrid Protocol

Written by sacha.tuillier@dreyfus.fr20/11/2024

The Madrid System, administered by the World Intellectual Property Organization (WIPO), offers businesses a simplified way to protect their trademarks internationally. With the regular addition of new member countries, such as Qatar, in May 2024, the system continues to expand, providing companies with new business opportunities in strategic territories. But how do these new memberships affect the landscape of international trademarks?

The International Trademark and Its Benefits

The Madrid System is based on two international treaties: the Madrid Agreement of 1891 and the Madrid Protocol of 1989. These two instruments allow businesses to file a single international trademark application, designating the countries where they wish to protect their mark.

However, before a company can file such an application, it must first register its mark at the national level in the country where it is established. Following the registration of the international trademark, a dependency link is created with the national mark for a period of five years. Consequently, the loss of rights on the national mark automatically results in the same loss for the international mark in all designated countries.

Through the Madrid System, businesses can benefit from uniform protection of their mark in multiple countries while reducing costs and administrative steps. A single application also simplifies the management of trademark renewals, which are valid for a period of ten years and can be renewed indefinitely.

Qatar’s Accession and Its Implications for International Companies

Qatar became the 115th member of the Madrid Protocol on May 3, 2024, marking a new phase for the Gulf region. It is the fourth country out of six Gulf Cooperation Council (GCC) members to join. This accession allows Qatari companies to register their trademarks internationally through a single procedure while facilitating access to foreign markets. Conversely, foreign businesses can now more easily protect their trademarks in Qatar by designating the country directly in their international trademark application.

For international businesses, the accession of new countries like Qatar to the Madrid Protocol opens up unprecedented commercial opportunities in markets that were previously less accessible. It enables the extension of trademark protection in strategic geographical areas, particularly given the rapid economic growth in the Middle East.

Challenges to Anticipate with New Members

Although the Madrid Protocol offers a centralized filing process, each member country retains its own national trademark laws. This means that even if a trademark is accepted at the international level, it may face challenges in some newly acceded countries. National offices may, for example, reject a trademark based on their specific criteria or extend the processing times, especially in cases of opposition.

Furthermore, companies must be prepared to face opposition in the designated countries. These oppositions may be based on pre-existing rights, leading to prolonged disputes or partial refusals of protection in certain countries. Opposition procedures may vary across jurisdictions, and the timelines can differ significantly.

Conclusion

The ongoing expansion of the Madrid System, with new accessions such as Qatar’s, strengthens the system’s global reach, facilitating access to new business markets. However, these advantages come with legal and administrative challenges, particularly linked to the national specificities of member countries. A proactive risk management approach, particularly regarding oppositions and variations in protection criteria, is essential for companies seeking to optimize their international trademark strategy.

Dreyfus Law Firm provides expert support at every international trademark registration and management stage. Our deep understanding of legal subtleties and our experience in global markets ensure optimal protection tailored to your specific needs.

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Entry Into Force on May 1, 2025 of the EU “Design Package”: Modernizing the EU Designs Framework

Written by Dreyfus19/11/2024

The recent publication of Regulation (EU) 2024/2822 and Directive (EU) 2024/2823 marks a key milestone in the modernization of the European legal framework for designs. These reforms, with certain provisions taking effect from May 1, 2025, foresee a phased implementation to harmonize, simplify, and adapt the system to the digital age.

Harmonization and modernization 

The term “Community design” has been updated to “European Union design” (EUD). This symbolic change modernizes the terminology while aligning it with that of European trademarks. To enhance identification, a visual symbol Ⓓ has been introduced, providing greater coherence within the system.

The reform expands definitions to incorporate technological advances. Animations, graphical interfaces, and digital twins are now included in the scope of protection, reflecting their essential role in modern industries. The concept of “product” has also been extended to non-physical forms, covering items used in video games or virtual environments such as the metaverse.

Filing procedures are now more flexible and better suited to creators’ needs. Applications can group up to 50 designs without classification constraints, and various digital formats are now accepted for design representations. Additionally, creators can defer publication for up to 30 months, offering strategic discretion to protect their designs while planning their market launch.

To promote accessibility, particularly for small and medium-sized enterprises (SMEs) and independent designers, some fees have been reduced or eliminated. Filing fees, for example, have been lowered, and the costs associated with the transfer of rights have been completely removed. However, a notable increase in renewal fees is expected. Previously, renewal fees for a 25-year period ranged from €90 to €180. Under the new framework, fees will start at €150 and rise to €700 by the fourth renewal cycle. This adjustment may disproportionately affect industries with longer product life cycles, such as automotive and industrial design, compared to industries like fashion, which are less impacted by the fee increase.

Enhanced protection of rights 

The EU reform clarifies key aspects of design visibility. From now on, visibility is no longer a general requirement for protection, except for components of complex products. This revision eliminates past ambiguities and extends protection to a wider range of contemporary and diverse designs.

A major innovation is the introduction of the repair clause. This provision removes legal protection for spare parts necessary to restore the appearance of a complex product, limiting exclusive rights in this domain. The measure strikes a balance between design protection and competition in the spare parts market. However, it requires manufacturers to inform consumers about the origin of the products used for repairs, enhancing transparency and enabling informed choices.

In the realm of 3D printing, the reform introduces an exclusive right allowing rights holders to prohibit the creation, dissemination, and use of digital files capable of reproducing a protected design via 3D printing. Although this technology remains relatively uncommon in households, the provisions anticipate its potential growth, safeguarding creators’ rights in this emerging field.

Lastly, the reform extends rights holders’ protections to goods in transit within the European Union, even if their final destination is outside EU territory. This change strengthens the enforcement of intellectual property rights in a globalized context, addressing the challenges posed by counterfeit goods in international trade.

Alternative dispute resolution and legal certainty 

The reform encourages EU Member States to establish administrative mechanisms for contesting the validity of national designs. Inspired by the EUIPO model for the European trademark (oppositions and cancelation actions), this approach offers a less expensive and faster alternative to traditional judicial procedures.

Additionally, the requirement for first disclosure within the EU has been abolished. Now, the initial disclosure of a design outside the EU can confer protection as an unregistered design. This change eliminates ambiguities from previous regulations, an important aspect in the post-Brexit context, where many designers chose the UK for their first presentations. This clarification further harmonizes the legal framework and reduces uncertainties for creators operating across multiple markets.

Key challenges to monitor 

While the reform has integrated significant advances for the digital age, uncertainties remain regarding the protection of AI-generated designs. This rapidly growing area raises fundamental questions about the adequacy of current legal frameworks, making it essential to ensure effective protection tailored to these new forms of creation.

Additionally, the growing divergences between EU and UK regimes, exacerbated by Brexit, require close attention. Creators and businesses must exercise caution to harmonize their design protection strategies in these two now-distinct territories, minimizing legal and commercial risks associated with this fragmentation.

Timeline and future prospects 

The new provisions will take effect in May 2025 for the regulation, while Member States have until December 2027 to transpose the directive into their national laws. This phased approach aims to ensure a harmonized application of the new rules across the European Union, offering creators an adjustment period.

The EU design reform represents a significant step forward in modernizing the legal framework and addressing 21st-century challenges. By clarifying key concepts, simplifying processes, and anticipating technological developments, the European Union offers a robust and inclusive system. For businesses and creators operating in Europe, adapting swiftly to these changes is essential to maximize the protection and competitiveness of their designs.

For assistance with managing and protecting your designs, our intellectual property experts are at your service. Dreyfus Law Firm with an international network of lawyers specializing in Intellectual Property.

 

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Case Study on Trademark Fraud Allegations in France: Hot Couture’s Pierre Cadault from Netflix Hit Series “Emily in Paris”

Written by Dreyfus18/11/2024

Breaking Down INPI’s Landmark Decision: A Tale of Two Industries

 The French National Institute of Industrial Property (INPI) recently addressed an intriguing trademark dispute that caught the entertainment industry’s attention. The case, involving a character name from the popular Netflix series “Emily in Paris,” has illuminated crucial aspects of bad faith trademark registration claims in the entertainment sector. The dispute centered on a trademark registration filed for cosmetics under Class 3, strategically positioned two months after the series premiere. The contested trademark is related to a fictional character portrayed as an extravagant couturier in the series, creating an unexpected intersection between beauty, fashion, and trademark law.

 

The INPI’s investigation delved deep into the chronology of events. Their analysis revealed “insufficient evidence” to establish the trademark holder’s awareness of prior use at the filing date. Despite the character “Pierre Cadault” prominently featured in the series as a renowned fashion designer, the evidence failed to demonstrate that the name “Cadault” alone had achieved meaningful recognition in France during the crucial initial months following the show’s release.

 

The art of proving bad faith: Beyond surface-level analysis

 A pivotal element in the INPI’s decision rested on the distinction between industries. While acknowledging the subtle connection between high fashion and cosmetics, the INPI determined that cosmetics operate in a separate commercial sphere from haute couture. This industry differentiation substantially weakened any presumed connection between the character’s name and the registered trademark category.

 

The INPI emphasized a fundamental principle: “mere awareness” of prior use does not constitute fraudulent intent. The burden of proving bad faith registration demands concrete evidence that the filing was specifically calculated to prevent a third party from utilizing a necessary business identifier. The timing of the registration, occurring two and a half months post-series launch, combined with the absence of communication between parties, significantly influenced the final determination.

 

The INPI’s reasoning revealed a subtle understanding of practical trademark enforcement. The notable absence of any legal action by the trademark holder to prevent the character’s name use in the series substantially undermined claims of malicious intent. This passive approach contrasted sharply with typical bad-faith scenarios, where trademark holders actively pursue cease-and-desist measures or legal proceedings.

 

A framework precision for evaluating bad faith

 The decision carried significant implications for the intersection of entertainment properties and trademark rights. The INPI acknowledged that while obtaining an injunction to prevent character name use would be legally challenging, potential conflicts could arise if Viacom pursued character-based cosmetic products. This nuanced observation highlights the complex relationship between entertainment content and commercial trademark rights.

 

This decision clarifies the framework for assessing bad faith in entertainment-related trademark registrations. The ruling emphasizes the critical importance of substantial evidence, industry context, and practical commercial implications. Future disputes will likely reference this decision’s “balanced approach” to evaluating trademark validity in the entertainment sector.

 

Conclusion

 The INPI’s thorough analysis offers valuable guidance for navigating the complex landscape of entertainment property rights and trademark protection. The decision underscores the necessity of considering both immediate and potential future commercial applications when evaluating trademark registration intent. This forward-looking perspective ensures that trademark protection serves its intended purpose without unduly restricting creative expression in the entertainment industry.

 

The ruling’s subtle approach to analyzing bad faith claims provides a robust framework that balances the legitimate interests of trademark applicants with those of entertainment property rights holders. As the entertainment industry continues to evolve, this decision will serve as a crucial reference point for resolving similar disputes, ensuring fair and practical outcomes in the dynamic intersection of entertainment and trademark law.

 

 At Dreyfus Law Firm, we recognize that the entertainment and media landscape present unique challenges for trademark protection, as evidenced by the recent “Emily in Paris” case. Our expertise lies in navigating these complex intersections between creative content and trademark rights. We guide entrepreneurs and companies through the intricate process of establishing and defending their trademark rights, particularly when industries overlap, as we saw with the fashion and cosmetics sectors in this case. “Bad faith claims” require sophisticated analysis and compelling evidence, but they are insufficient to demonstrate prior use or knowledge. Dreyfus Law Firm excels at building comprehensive strategies that consider both immediate concerns and future commercial implications. Our team prides itself on helping clients understand the practical aspects of trademark enforcement while ensuring their intellectual property assets are properly protected across multiple industries and jurisdictions.

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Securing Creations: The Blueprint to French Intellectual Property Dispute Resolution

Written by Dreyfus05/11/2024

French intellectual property (IP) law, deeply rooted in civil law tradition, is designed to ensure robust protection and enforcement of IP rights. The French legal framework for intellectual property disputes encompasses civil and criminal remedies, specialized courts, and a highly structured procedural system. This article delves into the intricacies of IP dispute resolution in France, focusing on trademark enforcement, litigation procedures, available remedies, and alternative dispute resolution (ADR) mechanisms while highlighting the essential balance between civil and criminal liabilities in IP infringement cases.

Trademark Enforcement in French Law

Trademark protection in France is governed by the Intellectual Property Code, which outlines the legal avenues available to trademark owners in cases of infringement. The law offers a dual approach whereby acts of infringement can be classified as both criminal and civil offenses. In most cases, trademark disputes are handled by civil courts. However, certain violations may lead to criminal prosecution.

 

For criminal liability, the stakes are high. Trademark infringement can result in substantial penalties, with fines reaching up to 400,000 euros and imprisonment for up to four years for individuals. Legal entities may face fines of up to 2 million euros. While these penalties underline the seriousness with which France views IP violations, the majority of trademark disputes remain within the civil court system, with ten designated courts spread across France, including key jurisdictions like Paris, Marseille, and Lyon.

 

Procedural Pathways in IP Disputes

A trademark infringement lawsuit in France typically begins with a writ of summons, a procedural document laying out the nature of the dispute, legal arguments, and remedies sought. The summons must also contain evidence of the claimant’s attempt to resolve the issue amicably before resorting to litigation. Once filed, both parties are required to be represented by legal counsel throughout the proceedings.

 

The civil litigation process is notably distinct in France due to the absence of a discovery phase. Instead, a claimant can request a search and seizure procedure commonly referred to as “saisie-contrefaçon.” This powerful mechanism enables the claimant, with the assistance of a bailiff, to collect evidence of infringement, including seizing goods and related documents. To initiate this procedure, the claimant must first obtain court authorization, which is granted upon showing a reasonable suspicion of IP infringement. Once the “saisie-contrefaçon” is completed, the claimant has a strict timeline, typically 20 business days or 31 calendar days, to file the main proceedings, failing which the evidence seized may become inadmissible.

 

French courts also adhere to a stringent timeline for rendering decisions in first-instance proceedings, with judgments typically issued within 24 months. This relatively predictable timeframe particularly appeals to right holders seeking timely enforcement of their rights.

 

Burden of Proof and Remedies

As in most civil legal systems, the burden of proof in French IP law lies with the claimant. This responsibility extends to establishing both the occurrence of the infringing act and the likelihood of continued or imminent infringement. In some cases, particularly when seeking provisional relief, such as a preliminary injunction, the claimant must demonstrate that the trademark violation appears likely or is about to occur.

 

French courts offer both provisional and permanent remedies. Provisional remedies can be awarded during injunctive proceedings and may include an order prohibiting further infringement, the seizure of suspect goods, or a requirement for the infringer to provide financial guarantees. Permanent remedies are granted once the court rules on the merits of the case, which may involve the destruction or recall of infringing goods, as well as orders to cease all infringing activities. Additionally, monetary remedies are calculated based on the economic harm caused to the trademark owner, the profits made by the infringer, and any moral damages. However, French law does not provide for punitive damages, and courts retain discretion when determining the final award.

 

Alternative Dispute Resolution: A Growing Trend

While litigation remains the primary method for resolving IP disputes in France, alternative dispute resolution (ADR) techniques, such as mediation and conciliation, are slowly gaining traction. The French government and courts are actively encouraging the use of ADR as a cost-effective, confidential, and flexible means of resolving IP conflicts. One of the key advantages of ADR lies in its ability to preserve business relationships while offering swift resolution, as parties can enter into ADR before or after litigation has commenced.

 

That said, ADR, in the context of intellectual property disputes, carries certain limitations. For instance, rights holders seeking immediate relief, such as a preliminary injunction or seizure order, must rely on the courts, as ADR mechanisms do not provide such enforceable interim measures. Despite these limitations, the growth of ADR signals a shift toward more collaborative methods of resolving trademark and other IP disputes in France.

 

Conclusion

French intellectual property dispute resolution offers a comprehensive, well-structured system that balances civil and criminal liabilities, provides robust enforcement mechanisms, and promotes alternative means of conflict resolution. Trademark owners benefit from clearly defined procedural rules, access to specialized courts, and a range of both provisional and permanent remedies. As the role of ADR continues to grow, the flexibility of the French system ensures that right holders can tailor their enforcement strategies to the unique demands of each case. Through a combination of litigation, administrative enforcement, and ADR, France remains a key jurisdiction for the protection of intellectual property rights.

 

With our team’s mastery of French Intellectual Property Law Dispute Resolution, trademark enforcement, civil and criminal litigation, procedural efficiency, and the nuanced application of search and seizure procedures “saisie-contrefaçon”, Dreyfus Law Firm provides clients with a decisive edge in safeguarding their intellectual property rights. The firm’s intimate understanding of the French legal landscape and its strategic use of provisional and permanent remedies ensure swift and effective resolution of IP disputes. Companies seeking to protect their valuable assets can trust Dreyfus Law Firm to deliver robust defense strategies, minimize litigation costs, and, where appropriate, navigate alternative dispute resolution methods to achieve favorable outcomes. Their expertise in this complex area of law makes them the optimal choice for businesses aiming to secure their intellectual property in the competitive French market.

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Blockchain Technology: A Revolution in Legal Evidence?

Written by Dreyfus30/10/2024

In the field of intellectual property law, the matter of evidence is crucial. Traditionally, electronic timestamping offered a solution. However, these methods remain limited by national frameworks. Conversely, blockchain is a global, reliable, accessible alternative that could become a prominent international standard.

 

How Blockchain Evidence Works

Blockchain is a decentralized technology characterized by transparency and security. Unlike centralized systems, it operates without a single control authority. Each transaction is recorded in a shared ledger, creating a chain of tamper-proof information. Public blockchains are accessible to all, similar to an indestructible public ledger, while private blockchains restrict access. This structure ensures data remains immutable and unalterable.

The system’s security is maintained by miners, who validate transactions by solving complex calculations in exchange for rewards, ensuring the integrity of the information.

 

How to Use Blockchain for Proof

  1. Create a Hash: The document is converted into a unique string of numbers and letters (a hash).
  2. Record on the Blockchain: The hash is registered in the blockchain through a minor financial transaction, making it permanent.
  3. Verification: To prove authenticity, simply compare the current document’s hash with the one on the blockchain. A match confirms its authenticity.

 

Traditional Solutions vs. Blockchain

Traditional evidence solutions, although effective, are often limited to national jurisdictions, posing obstacles internationally. Procedures like notary records or the Soleau envelope do not offer universal protection. Blockchain, however, being open source, offers universal timestamping based on mathematical rules, lowering entry barriers and providing an immutable and traceable proof system.

 

Various Use Cases

  • Creation Protection:
    • Ongoing Protection: Blockchain timestamps each version of a creation (e.g., fashion, jewelry), providing continuous coverage, even for unfinished works.
    • Pre-Patent Protection: During R&D phases, blockchain proves the existence of unpatented inventions, avoiding the need for immediate patent filing.
    • Contributor Traceability: In collaborative projects, blockchain identifies each contribution, reducing authorship disputes.
  • Electronic Signatures: Introduced in France in 2000 and standardized in the EU by the eIDAS Regulation, electronic signatures now include three types: simple, advanced, and qualified. Blockchain is increasingly used in this area to ensure integrity and authenticity, meeting the criteria for simple and advanced signatures. With the implementation of eIDAS 2 in 2024, blockchain could be integrated into qualified electronic signature systems.

 

Current Limitations and Future Prospects

In France, the legal recognition of blockchain evidence is mainly limited to the financial sector. For example, Ordinance No. 2016-520 authorized blockchains to record and transfer unlisted financial assets, like minibonds. Ordinance No. 2017-1674 and Decree No. 2018-1226 further extended their use of shared electronic financial security records. The PACTE Law of 2019 strengthened this by authorizing the recording and circulation of financial assets on the blockchain, including stocks and bonds.

At the European level, Regulation 910/2014/EU, effective since July 1, 2016, validates electronic signatures and timestamps, implicitly including blockchain, as admissible evidence in court, granting them similar legal value to handwritten signatures.

French law relies on a mixed system of evidence: the principle of freedom of evidence with exceptions for legal proof, mainly applied to legal acts. Perfect proof includes written documents (authentic or private), judicial admissions, decisive oaths, and reliable copies. Imperfect proofs, such as blockchain, are subject to the judge’s discretion and do not have predefined probative value by law.

Therefore, it is advisable to use a bailiff’s report. While verifying a digital fingerprint in the blockchain is technically simple and achievable via open-source tools, the judge cannot perform this manipulation. A bailiff, acting as a judicial officer, provides this report, offering technical proof to the judge and facilitating the use of blockchain evidence in legal proceedings.

 

Conclusion

Although blockchain is still considered imperfect proof under French law, its recognition is growing. It could soon become a global standard, surpassing traditional methods. Blockchain is redefining the framework of evidence in intellectual property, offering a solution adapted to the challenges of an international market.

Dreyfus Law Firm offers expert guidance at every stage of creation protection. Our mastery of legal subtleties and global market experience ensures optimal, tailored protection for your specific needs.

 

Dreyfus Law Firm works in close collaboration with a global network of specialized intellectual property lawyers.

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