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Introduction

Through its proposal for a regulation on certain plants obtained by new genomic techniques (NGTs), the European Commission seeks to fundamentally reshape the regulatory framework applicable to plant innovation. The proposal is based on a differentiated approach: certain plants, by reason of the nature of the genetic modifications introduced, would be excluded from the traditional scope of genetically modified organisms (GMOs), while others would remain subject to a specific regulatory regime.

This shift in regulatory boundaries is far from merely technical. It directly affects the legal qualification of products, the predictability of applicable rules, and the operational flexibility available to economic operators within the European market. The reform thus raises a central question: according to which criteria should EU law henceforth distinguish between non-regulated innovation and regulated innovation?

What are “new genomic techniques”?

New genomic techniques (NGTs) refer to recent methods enabling targeted modification of an organism’s genome. In other words, they allow precise intervention on a specific segment of DNA. The most well-known tool is currently CRISPR-Cas9, which operates through an enzyme that cuts DNA and a guide system directing that enzyme to the exact location where the modification is to be made.

These techniques may produce highly diverse outcomes. They may, for instance, introduce minor DNA alterations, deactivate a gene, modify the protein encoded by that gene, or introduce a new genetic trait. NGTs therefore do not constitute a single technique, but rather a set of tools capable of producing varied effects, which complicates their legal qualification.

The current legal status of NGTs

Following an action brought in 2015 by several associations, the Court of Justice of the European Union (CJEU) was called upon to clarify the legal status of techniques now referred to as NGTs (CJEU, 25 July 2018, Case C-528/16).

In its decision of 25 July 2018, the Court held that organisms obtained through new mutagenesis techniques fall, in principle, within the definition of GMOs under Directive 2001/18/EC. It further recalled that only certain conventional mutagenesis techniques are exempt, as they have long been used and are considered to have an established safety record. NGTs, as more recent techniques, do not benefit from this exemption and therefore remain subject to the GMO regulatory framework under current law.

In practice, this assimilation has generated legal uncertainty, insofar as plants with identical characteristics may fall under different regulatory regimes depending on the technique used. Operators are thus exposed to the risk of reclassification as GMOs, with direct implications for regulatory obligations, time-to-market, and the security of their investments.

Against this background, the proposed regulation aims to fundamentally reconfigure the legal regime applicable to plants obtained through NGTs by introducing a binary distinction that departs from the uniform classification as GMOs established by CJEU case law. This segmentation is based on a product-oriented approach rather than on the technique used, marking a significant development in EU biosafety law.

What does the European Commission’s proposal provide?

On 5 July 2023, the Commission proposed a specific regulatory framework for plants obtained by certain NGTs. The core idea is no longer to treat them uniformly as GMOs, but to distinguish between two categories based on the characteristics of the final product. The proposal thus adopts a binary structure: category 1 and category 2.

Category 1 NGT plants: towards assimilation with general seed law

Category 1 plants are characterised by targeted, limited genetic modifications that are indistinguishable from those that could occur naturally or through conventional breeding methods:

• No stable insertion of exogenous DNA into the genome
• Limited and targeted genetic changes (site-directed mutagenesis, small insertions)
• Outcomes equivalent to those achieved through conventional mutagenesis or breeding

From a legal perspective, such plants would be expressly excluded from the scope of Directive 2001/18/EC on GMOs, subject to a verification procedure. This entails several consequences such as the removal of the requirement for prior authorisation under GMO legislation, the absence of a systematic environmental assessment for GMOs, and their inclusion within the standard regime for seeds and plants.

Category 2 NGT plants: a regulated intermediate regime

Category 2 plants encompass more complex genomic modifications, particularly where:

• The modifications exceed what could occur naturally
• Exogenous genetic sequences are inserted or recombined
• The phenotypic effects involve a higher degree of uncertainty

These plants remain subject to a specific regulatory regime, although this is significantly less stringent than the standard framework for GMOs. Consequently, the risk assessment procedure is simplified and proportionate, the authorisation process is regulated but streamlined, and the traceability requirements have been adapted.

This intermediate regime reflects an intention to calibrate regulatory constraints to the level of identified risk, in line with the principle of proportionality under EU law. Nevertheless, the practical implementation of this distinction may give rise to interpretative disputes, particularly regarding classification criteria between categories 1 and 2.

A particularly sensitive aspect of the reform concerns the redefinition of traceability and consumer information requirements.

Unlike traditional GMOs, certain NGT plants, especially those in category 1, may:

• Be exempt from specific labelling requirements where equivalent to conventional varieties
• Be placed on the market within agricultural and food supply chains without formal distinction
• Not be subject to specific GMO traceability obligations

Ongoing debates

The proposed reform raises not only biosafety concerns but also broader issues relating to intellectual property, traceability, labelling, and environmental monitoring of NGT-derived plants. These issues remain particularly sensitive in light of the provisional agreement reached at EU level in December 2025 on the future NGT regulation.

Intellectual property is central to these discussions. On the one hand, plant variety rights protect new varieties while preserving breeders’ access for further innovation. On the other hand, the use of patents for certain traits obtained through NGTs raises concerns regarding market concentration and restricted access to innovation. These questions therefore extend beyond technical legal considerations and directly affect the structure of the seed market.

Traceability and labelling also remain contentious. In practice, identifying an NGT plant based solely on the final product may be difficult, complicating control mechanisms. The issue of consumer information therefore remains unresolved: some stakeholders advocate for specific labelling, while others consider such requirements unjustified for plants closely resembling conventional varieties.

Finally, post-market monitoring remains a key issue. Even where regulatory requirements are relaxed for certain NGT plants, several stakeholders advocate maintaining appropriate environmental surveillance and specific safeguards for certain agricultural sectors, particularly those seeking to exclude such techniques.

These concerns are echoed in the French political context. On 21 January 2026, a proposal for a European resolution was submitted to the French National Assembly opposing the deregulation of NGT plants and advocating for a strict European framework in terms of health, environmental, and democratic safeguards. This initiative illustrates that, despite ongoing developments at EU level, consensus remains far from achieved.

Conclusion

The proposed regulation on plants obtained through certain new genomic techniques reflects a significant shift in EU law governing plant biotechnology. By departing from the principle of systematically classifying NGTs as GMOs, it seeks to establish a more differentiated framework based on the characteristics of the final product rather than solely on the technique used. This evolution aims to enhance regulatory coherence and legal certainty for economic operators.

However, the reform does not resolve all challenges. The determination of classification criteria, the interaction with traceability and information requirements, and the implications for intellectual property, competition, and environmental monitoring remain widely debated. In this respect, the European resolution proposal submitted to the French National Assembly in January 2026 demonstrates that the choices made at EU level continue to face significant reservations, particularly in light of the precautionary principle and the protection of certain agricultural sectors.

Beyond technical considerations, the reform highlights a broader issue: the balance EU law seeks to strike between fostering innovation, safeguarding the internal market, ensuring consumer information, and protecting the environment. This balance will ultimately determine the role that NGTs will play within the European agricultural model.

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. What are new genomic techniques (NGTs)?

NTGs refer to modern techniques that enable the targeted modification of a plant’s genome.

2. What is the difference between NGTs and GMOs?

GMOs typically involve the introduction of foreign genetic material into a plant.
NGTs, by contrast, may modify an existing gene without introducing external DNA.

3. Why did the CJEU classify NGTs under the GMO framework?

The CJEU adopted a broad interpretation of Directive 2001/18/EC, based on the precautionary principle, holding that recent genome-editing techniques lacking a history of safe use should be subject to the same regulatory framework as traditional GMOs.

4. What are the implications for agriculture?

NGTs may improve crop yields and resilience but also raise economic, legal, and societal issues.

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

Introduction

Can a design be protected even if it does not result from any particular creative effort?

At first glance, the question may appear counterintuitive. Legal protection is still often associated with some form of intellectual or artistic input.

However, in design law, this assumption is incorrect. Under this system, protection is not contingent on creativity, but on the product’s appearance.

A confusion rooted in the history of applied arts

The frequent confusion between copyright and design law is not coincidental. It largely stems from the history of applied arts and the historical convergence between artistic creation and industrial production.

From the nineteenth century onwards, aesthetic forms applied to industrial products, particularly in sectors such as textiles, furniture, ceramics and goldsmithing, were perceived as artistic creations applied to utilitarian objects.

This proximity between artistic creation and industrial design fostered a conceptual overlap between copyright and design law, leading to the mistaken assumption that design protection requires a creative contribution.

This historical background also explains the principle of cumulative protection, now recognized under European law. Under this principle, a single creation may benefit simultaneously from:

• Design protection, which safeguards the appearance of a product as such.
• Copyright protection, provided that the work meets the requirement of originality.

Nevertheless, these two regimes rest on fundamentally distinct legal foundations.

An autonomous legal framework: the irrelevance of creative effort

Unlike copyright, which requires an original work reflecting the personality of its author, design law does not make protection conditional upon the existence of intellectual effort or artistic creation.

Pursuant to Regulation (EC) No 6/2002, protection is granted provided that two conditions are met:

• Novelty: the design must not have been made available to the public prior to the filing date, subject to the exceptions provided for by the Regulation (EC) No 6/2002, in particular Article 7, such as the grace period or improper disclosure.
• Individual character: the design must produce, on the informed user, an overall impression that differs from that produced by earlier designs. In this assessment, the degree of freedom of the designer is a decisive factor: where such freedom is constrained by technical or functional requirements, relatively minor differences may suffice to establish individual character.

It follows that design law is concerned exclusively with the visual outcome of a product, irrespective of the creative process that led to its development.

The Deity Shoes case: a significant clarification by the Court of Justice of the European Union

The Deity Shoes case (CJEU, 18 December 2025, Deity Shoes, S.L. v Mundorama Confort, S.L. and Stay Design, S.L., Case C-323/24) is a recent yet already emblematic decision that clearly illustrates this approach.

In this case, the company Deity Shoes, S.L brought infringement proceedings based on a registered design against two competing companies.

The competing companies challenged the validity of the design, arguing that the shoes merely resulted from a combination of elements available in suppliers’ catalogues, without any genuine design activity or intellectual effort.

The Spanish court, Juzgado de lo Mercantil n° 1 of Alicante, referred several questions to the CJEU for a preliminary ruling, in particular:

• Whether it is necessary to demonstrate genuine creative activity in order to obtain protection;
• Whether the personalization of pre-existing designs may be protected.

The Court provided a clear answer. It held that the designer’s creative activity or intellectual effort does not constitute a condition for protection.

Accordingly, only the appearance of the product, its novelty and its individual character are relevant.

The Court further clarified that a combination of pre-existing elements may indeed constitute a protected design, provided that it produces a different overall impression.

This decision confirms that design law primarily pursues an economic objective, namely the protection of product appearance on the market, rather than the artistic recognition of a work.

Conclusion

It is therefore not necessary to demonstrate intellectual effort or artistic creation in order to benefit from design protection. Only novelty and individual character are relevant.

Design law thus clearly differs from copyright: it does not seek to reward creativity, but rather to protect the appearance of products from an economic perspective.

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. Is it necessary to be a professional designer in order to obtain protection?

The status or profession of the creator is irrelevant. Any natural or legal person may apply for design protection, provided that the legal requirements are satisfied.

2. Can a simple design be protected?

The complexity of a design is not a relevant criterion. Even a very simple design may be protected if it is new and possesses individual character.

3. Can a design resulting from technical constraints be protected?

Features solely dictated by technical function are not eligible for protection. However, aesthetic choices that remain independent of such constraints may be protected.

4. Is protection automatic?

No, protection generally requires registration (registered design), except in the case of the unregistered Community design.

5. What is meant by an “informed user”?

An informed user is a notional figure situated between the average consumer and the sectoral expert, possessing a certain level of awareness of existing designs.

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

In an environment where competition is growing increasingly fierce, the idea of resurrecting abandoned trademarks, known as zombie trademarks , has become a major strategic shift. Far from being a mere trend, trademarks revival has become a true economic lever. This article explores the assessment criteria, differences in treatment between jurisdictions, and the often underestimated legal risks associated with the reactivation of dormant trademarks.

What is a Zombie Trademark?

Zombie trademarks are those that have been registered  but are no longer actively used, either because they have expired or because they have not been put to genuine use. These brands are often considered “dead” in the sense that they are not exploited commercially. However, under certain circumstances, they can be reactivated or “resurrected.”

What motivates the resurrection of old Trademark ? Nostalgia is a key factor: consumers are drawn to the nostalgic aspect of these trademarks, especially when they evoke cultural memories. Furthermore, reviving trademarks can provide a competitive advantage by reducing the need to build a new brand identity while capitalizing on some residual reputation.

An emblematic example of this strategy is Old Spice, a men’s grooming brand, which was relaunched in the 2010s with a modern marketing approach and saw its sales double.

Legal risks associated with the revival of an abandoned trademark

Reactivating a trademark after revocation for non-use

Trademark law is based, inter alia, on the concept of use, the effective absence of which may lead to the revocation of the trademark registration. Failing serious use over an uninterrupted period of five years, a trademark is exposed to revocation, in accordance with Regulation (EU) 2017/1001 on the European Union trade mark. Once revocation is declared, the exclusive rights on the trademark cease to exist. From a strictly legal standpoint, the sign then becomes available again and may, in principle, be the subject of a new filing by a third party.

For a new applicant, the disappearance of the earlier right may appear to create an opportunity. Nevertheless, this opportunity remains fragile, particularly where the sign continues to enjoy a lasting presence in the public’s mind.

The role of residual reputation

Certain historical trademarks, although legally revoked, continue to benefit from persistent public recognition. This phenomenon is commonly referred to as residual reputation.

When a third party files a trademark that was previously well known, it may be exposed to the risk that the new filing is characterised as an opportunistic appropriation of pre-existing goodwill. In such circumstances, the challenge no longer concerns the existence of an earlier trademark right, but rather the legitimacy of the new applicant’s conduct.

The Question of Good Faith According to the European Approach

Reactivating a trademark must be done carefully. If a third party attempts to re-register an abandoned trademark and uses it in a way that could create a misleading impression of continuity, it could be interpreted as bad faith.

In the Nehera case (T-250/21, judgment of July 6, 2022), the European Court ruled that the lack of use and protection of the “Nehera” trademark for several decades, combined with the absence of any surviving reputation and exploitation, excluded any bad faith on the part of the applicant. Mere knowledge of past use was not sufficient to establish bad faith.

In the present case, the applicant had undertaken its own commercial efforts to relaunch the mark without creating a misleading impression of continuity, such that bad faith could not be established.”

In contrast, in the Simca case (T-327/12, judgment of May 8, 2014), the European Court confirmed that the Simca brand still enjoyed a residual reputation in 2007 despite its historical use. The applicant, fully aware of this reputation and the absence of serious prior use, filed the application intending to exploit that reputation, which constituted parasitism.

Therefore, the existence of a surviving reputation, combined with positive knowledge and the intent to take advantage of that reputation, led to the determination of bad faith, resulting in the invalidation of the European Union trademark.

Diverging National Approaches in Europe on the Good Faith Issue

An analysis of national case law reveals a marked divergence among EU Member States in the assessment of good faith in the context of the re-filing of abandoned trademarks. This heterogeneity highlights the absence of a unified approach as regards the weight given to a sign’s past notoriety and to the applicant’s intention at the time of filing.

In Germany, in the Testarossa case involving Ferrari (29 W (pat) 14/21), the court adopts a restrictive conception of bad faith. It holds that the residual reputation of a sign, taken in isolation, is not sufficient to preclude a new filing. In the absence of a current likelihood of confusion or a clearly established infringement of an existing protected trademark, the re-filing is not considered unlawful.

By contrast, the Court of Appeal of Paris, in the VOGICA case (May 16, 2025, RG No. 23/17886), adopts a significantly more protective approach. Although the trademark had not been subject to any genuine use since 1991, the court acknowledged the existence of a substantial residual reputation on the French market. Noting, moreover, the applicant’s inability to substantiate an autonomous and credible economic project, the court inferred an intention to unduly appropriate the economic value attached to the sign’s past notoriety. This strategy was characterised as parasitic behaviour, leading to the invalidation of the filing.

More generally, national courts do not assess good faith in a uniform manner when it comes to the re-filing of trademarks that have been abandoned or revoked for non-use.

What are the major legal risks identified in reviving a trademark?

Reviving a brand becomes legally risky when the following conditions are met:

• A current residual reputation, a proven knowledge of this reputation,
• And the absence of an independent economic project,

which exposes the applicant to:

• Invalidity for bad faith,
• Parasitic actions,
• And the lasting blockage of any revival strategy.

Conclusion

The revival of brands is a powerful strategy, but it must be approached with caution. A zombie brand can offer a significant competitive advantage, but the legal risks are also substantial. A successful resurrection relies on good faith, genuine use, and a thorough understanding of European case law. Therefore, a detailed analysis of the brand’s history, its prior use, and its residual reputation is essential.

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. What is a parasitic act in the context of brand revival?
A parasitic act involves exploiting the reputation of a historical brand without bringing any real innovation or added value, with the aim of unduly benefiting from its image.

2. What are the legal risks associated with reviving a dormant trademark?
Reviving a brand involves several legal risks, including cancellation for non-use if the brand has not been used for an extended period, bad faith, or a risk of confusion with other brands.

3. Can a dormant trademark be revived if it has been cancelled for non-use?
Reviving a dormant brand cancelled for non-use is possible, but it is subject to strict conditions. If a brand has been cancelled for non-use, it is necessary to prove that it has been used again in a serious and continuous manner in commerce.

4. Does residual good faith protect a trademark?
It depends on the assessment of the courts, based on whether the brand’s notoriety is still active in the public’s mind.

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.

Statutory definition, recent case law, contentious procedure, evidentiary methods and protection strategies — everything you need to know to safeguard your confidential information.

In an economy built on intangibles, a company’s value often lies in what it doesn’t disclose. Customer databases, algorithms, business strategies or technical know-how: these critical assets are not always patentable, and this is where trade secret protection comes into play.

Since the French law of July 30, 2018, transposing EU Directive 2016/943, France has had a powerful but demanding protective framework. The 2024-2025 case law has significantly clarified the relationship between trade secrets, the right to evidence and GDPR. This reference guide provides everything you need to understand, protect and defend your confidential information.

This guide covers:

• The legal definition and 3 cumulative protection criteria
• The 2024-2025 case law review and its practical implications
• Litigation procedures: taking legal action, timelines, costs
• Methods for proving the prior existence of your secret
• Industry case studies (pharma, tech, food & beverage)
• Coordination with other intellectual property rights
• The international dimension of protection

Evolution of the Legal Framework

Fundamentals: What is a Trade Secret?

Unlike traditional intellectual property (patents, trademarks), which rests upon a public title, trade secret protection safeguards information by reason of its very secrecy. This protection arose from a simple observation: certain strategic information cannot, or should not, be patented.

The statutory definition (Article L.151-1 of the French Commercial Code)

To benefit from statutory protection, information must satisfy three strict cumulative criteria set out in Article L.151-1 of the French Commercial Code:

1. The secret nature of the information

The information is not generally known or readily accessible to persons familiar with that type of information. This is the criterion of “non-obviousness”: the information must not be commonplace within the relevant sector.

2. Commercial value

The information has commercial value (actual or potential) precisely because it is secret. Such value may be direct (competitive advantage) or indirect (cost avoidance).

3. Reasonable protective measures

The information is the subject of concrete protective measures taken by its holder to preserve its secret nature. This is the criterion most often determinative in litigation.

Key point : If you do not actively protect your information (confidentiality clauses, passwords, document classification), the court will hold that no trade secret exists. This is the criterion most frequently overlooked by businesses.

What does a trade secret cover?

The scope is exceedingly broad. The notion of “information” is to be understood expansively and includes:

Technical know-how: manufacturing processes, recipes, chemical formulae, production methods, optimisation parameters, technical drawings.

Commercial information: client and prospect lists, pricing policies, supplier terms, product margins, internal market shares.

Strategic data: M&A projects, development plans, proprietary market studies, business plans, financial projections.

Organisational information: strategic organisational charts, management methods, optimised internal processes.

Algorithms and data: source code, scoring models, proprietary databases, software architectures.

What trade secrets do NOT protect

It is essential to grasp the limits of this protection:

Independent discovery: if a competitor develops the same information autonomously, you may not bring action against them.

Lawful reverse engineering: the analysis of a product placed on the market in order to ascertain its functioning is lawful (save for any contrary contractual stipulation).

Information that has become public: once a secret is disclosed (whether voluntarily or otherwise), protection lapses irrevocably.

General employee skills: the know-how acquired by an employee (his or her “experience”) belongs to that employee and may be employed in the service of a new employer.

Case law landscape 2024-2025

Recent judicial developments are marked by a sustained tension between two imperatives: the protection of corporate secrets and the right to evidence (the necessity for a party to obtain documents in order to vindicate its rights in court).

The seminal ruling: French Court of Cassation, Commercial Chamber, 5 February 2025 (n°23-10.953)

This decision marks the principal turning point. In a case opposing the franchise networks Speed Rabbit Pizza and Domino’s Pizza, the French Court of Cassation laid down a structural principle governing the equilibrium between these competing rights.

The judicial principle : “The right to evidence may justify the production of materials covered by trade secrets, provided that such production is indispensable to the exercise of that right and that the resulting interference is strictly proportionate to the aim pursued.”

Practical implications: for a court to order the production of a document covered by trade secrets, that document must be indispensable to the resolution of the dispute, and no longer merely “necessary” or “useful”. The term “indispensable” is deliberately restrictive: it excludes “fishing expeditions” (exploratory searches for evidence).

The court must conduct a proportionality assessment between the competing rights. This requires verifying that no alternative evidentiary means less injurious to the secret exist, and that the document sought is genuinely decisive for the outcome of the proceedings.

Management of seizures (saisie-contrefaçon and Article 145 of the French Code of Civil Procedure)

Where a company is subjected to an ex parte seizure on its premises, how can it prevent its trade secrets from reaching its competitors?

Case law imposes the strict application of provisional sequestration: documents seized which are liable to disclose trade secrets are placed under sequestration with a third party (typically the judicial commissioner). A one-month period is granted to the seized party to challenge the communicability of the documents. The court rules on transmission to the seizing party prior to any disclosure, by applying the proportionality test.

The preparatory ruling: Cass. Com., 5 June 2024 (n°23-10.954)

This decision laid the foundations of the doctrine, recognising for the first time that the right to evidence could justify an encroachment upon trade secrets, while requiring strict judicial supervision.

Unfairly obtained evidence: Plenary Assembly, 22 December 2023 (n°20-20.648)

The Plenary Assembly held that evidence obtained by unfair means (covert recordings, purloined documents) may be adduced in court provided that two conditions are satisfied: its production is indispensable to the exercise of the right to evidence, and the interference with the rights of the opposing party is proportionate to the aim pursued.

Trade Secrets vs GDPR: The CJEU Ruling of February 27, 2025

At the European level, the Court of Justice (CJEU, C-203/22, Dun & Bradstreet Austria) handed down a major decision concerning the articulation between trade secrets and the rights of natural persons.

The facts

An Austrian consumer was refused a mobile telephony contract on the grounds that her creditworthiness was deemed insufficient. This refusal rested upon an automated assessment (credit scoring) carried out by Dun & Bradstreet. She sought explanations as to the “underlying logic” of that decision, invoking Article 15 GDPR (right of access). The company refused on the ground of the trade secret protecting its algorithm.

The CJEU’s decision

Principle laid down by the CJEU : The GDPR prevails over trade secrets in matters of access rights to personal data and information concerning automated decisions. The data controller must provide “meaningful information about the underlying logic involved” in a manner that is “concise, transparent, intelligible and easily accessible”.

What this entails for businesses: the mere disclosure of an algorithm or a complex mathematical formula is not sufficient to discharge the duty of information. The explanation must be intelligible to a non-specialist.

The undertaking must enable the data subject to understand which data have been used and how they influenced the decision. This does not entail disclosure of the entire algorithm, but rather an explanation of the determinative criteria. In the event of litigation, allegedly protected information must be communicated to the court, which shall balance the competing rights.

Sectoral impact — This decision directly affects sectors employing automated scoring: banks and credit institutions, insurance (personalised pricing), recruitment (automated CV screening), residential leasing (tenant solvency), and more generally any automated decision-making process producing significant effects on individuals.

Protection Strategies: “Reasonable Measures”

To benefit from statutory protection, the undertaking must demonstrate that it has implemented concrete measures. The term “reasonable” denotes measures adapted to the nature of the information, the size of the undertaking, and the economic context. An SME does not have the same resources as a CAC 40 group, and the courts take this into account.

Protective measures checklist

Legal measures

• Non-disclosure agreements (NDAs): systematic prior to any discussion with a partner, service provider or investor
• Reinforced confidentiality clauses: in employment contracts and commercial contracts
• Non-competition clauses: for strategic positions, within statutory limits
• IT charter: expressly setting out the duties of confidentiality and signed by all collaborators
• Internal regulations: incorporating confidentiality obligations

Technical measures

• Access management: need-to-know principle
• Traceability: access logs for sensitive documents
• Encryption: of sensitive data both at rest and in transit
• Strong authentication: MFA for access to critical systems
• DLP (Data Loss Prevention): data leakage prevention tools

Organisational measures

• Document marking: “CONFIDENTIAL — TRADE SECRET” labelling on sensitive documents
• Information classification: tiered confidentiality system (C1, C2, C3, etc.)
• Team training: awareness of social engineering risks and information leakage
• Departure procedures: exit interview reminding obligations, retrieval of access credentials and documents
• Physical security: secure premises for sensitive paper documents
• Inventory of secrets: regular mapping of the undertaking’s confidential information

Practical advice : The “CONFIDENTIAL” marking of documents constitutes the simplest and most effective measure to evidence before a court. An unmarked document will rarely be regarded as falling within the scope of trade secret protection. Equally, invest in traceability: the ability to demonstrate who accessed which information and when proves invaluable in litigation.

Establishing your trade secret: timestamping methods

In the event of litigation, you will need to prove that you held the information prior to the alleged infringement. The creation date of a digital file does not constitute sufficient proof (such date may be altered). You must establish a certain date.

e-Soleau (INPI): the dematerialised version of the Soleau envelope

The most widely known and economical solution for SMEs, start-ups and individual inventors. Since 1 April 2024, the paper Soleau envelope has been definitively discontinued: only the e-Soleau service remains, fully dematerialised, in accordance with Decree n°2023-166 of 7 March 2023 and the amending order modifying the decree of 9 May 1986.

Principle: you submit online, via the procedures.inpi.fr portal, a digital file (PDF, image, ZIP archive), which is timestamped by the INPI. A digital fingerprint (SHA-256 hash) is computed and preserved within the INPI’s Electronic Archiving System, AFNOR-certified. A timestamped filing certificate is generated immediately upon payment.

Cost: €15 per 5-year period of conservation, for documents not exceeding 50 MB. Each additional 50 MB tranche costs €10, up to a global limit of 2 GB per filing.

Conservation period: since 8 April 2024, the maximum conservation period has been increased from 10 to 20 years. The initial filing is for 5 years, extendable in successive 5-year tranches up to a maximum of 20 years. Extensions may be requested at the time of filing or subsequently.

Technical capacity: up to 100 files may be included within a single e-Soleau, for a total maximum volume of 2 GB. The former seven-page-per-compartment limitation disappeared together with the paper version.

Advantages: simplicity, low cost, accessibility 24/7, established judicial recognition, AFNOR-certified archiving.

Limitations: does not constitute an industrial property title; confers solely an evidentiary effect of prior possession (and the benefit of personal prior possession in patent matters, Article L.613-7 of the French Intellectual Property Code); no direct international value.

Website: INPI – e-Soleau

Filing with a judicial commissioner or a notary

Traditional solution offering maximum evidentiary force under French law. Since 1 July 2022, bailiffs (huissiers de justice) and judicial auctioneers (commissaires-priseurs judiciaires) have been merged into a single profession: that of judicial commissioner (Order n°2016-728 of 2 June 2016). As from 1 July 2026, this title becomes exclusive.

Principle: a public officer ascertains the contents of a document on a given date and stores it. The report drawn up has evidentiary force unless and until rebutted.

Cost: variable depending on volume, generally between €100 and €500 for a simple filing.

Advantages: incontrovertible evidentiary force, universal acceptance by French courts, ability to deposit digital media.

Limitations: higher cost than e-Soleau, less agile procedure for frequent updates.

Blockchain timestamping

A modern solution, particularly suited to technology companies and frequent updates.

Principle: a digital fingerprint (SHA-256 hash) of your document is inscribed in a public blockchain (typically Bitcoin or Ethereum). Such inscription is immutable and timestamped. The European eIDAS Regulation (EU n°910/2014) recognises the legal value of qualified electronic timestamping.

Cost: a few euros per timestamp via specialised services, or integrable into your internal processes.

Advantages: automatable, suited to software development pipelines (CI/CD), low marginal cost, version-by-version traceability.

Limitations: judicial recognition still emerging in France (though steadily growing), requirement to retain the original document corresponding to the hash.

Service providers: Woleet, OriginStamp, KeeSign, or solutions integrated into document management platforms.

APP filing (software)

For source code and software, the Agence pour la Protection des Programmes (APP) provides a specialised filing service.

Principle: secure deposit of source code with a certain date, recognised as proof of prior possession.

Cost: from €120 (excl. VAT) for 5 years.

Comparative table of evidentiary methods

Bringing legal action: procedure, time limits and costs

Where an infringement of trade secrets is identified, several courses of action are available to the holder of the secret. The choice depends on urgency, the gravity of the infringement and the objectives pursued.

Competent jurisdiction

Judicial Court (formerly Tribunal de grande instance): competent for civil actions concerning trade secrets. This is the court of general jurisdiction.

Commercial Court (Tribunal de commerce): competent where the dispute opposes two traders or commercial companies and concerns acts of commerce.

Labour Court (Conseil du prud’hommes): competent where the infringement is committed by an employee within the framework of the employment relationship (although the action may be brought before the Judicial Court for non-employment-related aspects).

Available proceedings

Summary proceedings (urgency)

An expedited procedure enabling the obtaining of provisional measures. Conditions: urgency and absence of serious dispute, or existence of imminent harm. Hearing date: generally 2 to 4 weeks following the writ of summons. The court may order the provisional prohibition on using or disclosing the secret, the conservatory seizure of disputed products or documents, and a astreinte (financial penalty) to ensure compliance.

Substantive proceedings

A complete procedure leading to a definitive decision. Average duration: 12 to 24 months at first instance depending on complexity. Permits the obtaining of definitive damages, permanent injunctions and publication of the judgment.

Adapted seizure (Article L.152-3 of the French Commercial Code)

Ex parte procedure (without notice to the opposing party) enabling the recording of an infringement and the seizure of evidence. Application to the President of the Judicial Court. Execution by a judicial commissioner on the premises of the alleged infringer. Sequestration of sensitive items pending the decision on their communicability.

Limitation period

Limitation: 5 years — Civil actions in matters of trade secrets are barred after 5 years from the date on which the holder of the secret had knowledge, or ought to have had knowledge, of the last fact enabling the action (Article L.152-2 of the French Commercial Code). This period may be interrupted by formal notice or by service of a writ.

Estimated costs

These estimates are indicative and vary according to case complexity, firm reputation and geographic area.

Materials to be assembled prior to action

Before initiating proceedings, ensure you have the following elements:

Proof of prior possession: e-Soleau, filing with a judicial commissioner or notary, blockchain timestamping..

Proof of protection measures: signed NDAs, IT charters, access logs, document classification.

Proof of infringement: disclosed documents, infringing products, witness statements, correspondence.

Damage assessment: loss of revenue, lost R&D investments, reputational harm.

Sanctions and remedies

In the event of theft, misappropriation or unlawful disclosure, the law provides for extensive civil sanctions. The criminal dimension remains confined to ancillary offences such as theft, breach of trust or receiving stolen property.

What the court may order

Injunctive measures: prohibition on using, manufacturing, marketing or revealing the protected information. Such prohibition may be coupled with an astreinte (sum payable for each day of non-compliance).

Recall and destruction measures: recall of products from the market, destruction of documents, files or products incorporating the secret (“infringing goods”).

Publication of the decision: at the infringer’s expense, in newspapers or on websites, to remedy reputational harm.
Damages: calculated by reference to the negative economic consequences (lost profits, loss of opportunity), moral prejudice and the profits derived by the infringer through the infringement.

Statutory exceptions (Article L.151-8 of the French Commercial Code)

Trade secrets are not enforceable in certain situations involving overriding interests (Article L.151-8 of the French Commercial Code):

Exercise of the right to information: freedom of expression and freedom of the press, particularly to disclose information of public interest.

Whistleblowers: disclosure of unlawful activity or reprehensible conduct in order to safeguard the public interest (protection reinforced by the French Waserman Law of 2022).

Protection of a legitimate interest: notably the right to evidence, subject to the proportionality conditions established by 2025 case law.

Employee representatives: in the exercise of their functions (social and economic committee, trade union representatives).

Sector-specific case studies

Trade secret protection is implemented in different ways depending on the sector. The following examples illustrate the issues at stake and the recommended best practices.

Pharmaceutical industry and biotechnology

Typical case: Protection of development data

A laboratory develops a new molecule. Prior to filing a patent (which entails disclosure), all R&D data constitute critical trade secrets: pre-clinical trial results, formulations tested, observed side effects, synthesis processes.

Issue: a leak may enable a competitor to file a “pre-emptive” patent or develop a similar molecule.

Recommended specific measures:strict compartmentalisation of R&D teams (each team having access only to its segment of the project). Daily timestamped and signed laboratory notebooks. Reinforced NDAs with CROs (Contract Research Organizations). Clean room procedures for licensing negotiations.

Technology sector (start-ups, software publishers)

Typical case: Protection of algorithms and source code

A start-up develops a recommendation algorithm constituting its competitive advantage. The source code and model training parameters constitute trade secrets.

Issue: a developer departing for a competitor could recreate a similar solution.

Recommended specific measures: technical architecture restricting access to the complete code (microservices, modular access). Systematic blockchain timestamping of commits. Specific confidentiality clauses within developers’ employment contracts. Monitoring of code repositories (GitHub, GitLab) to detect leaks. Formalised exit interviews with reminder of obligations.

Agri-food

Typical case: Protection of recipes and processes

A food manufacturer holds a unique recipe (sauce, beverage, processed product) the secrecy of which is the cornerstone of its market positioning. The most celebrated example is that of Coca-Cola, whose formula has remained secret since 1886.

Issue: disclosure would enable immediate copying by competitors or private label brands.

Recommended specific measures: fragmentation of the recipe (different persons knowing different parts). Codification of ingredients (internal codes in lieu of actual names). Restricted physical access to sensitive production zones. Regular audits of key ingredient suppliers.

Consulting and professional services

Typical case: Protection of methodologies and client data

A consulting firm develops proprietary methodologies and holds strategic data on its clients. These elements constitute major intangible assets.

Issue: a consultant departing for a competitor takes with them their “contact book” and methods.

Recommended specific measures: formal documentation of methodologies bearing the “trade secret” mention. Strict policy on the use of client data (export prohibition, anonymisation). Non-solicitation clauses concerning clientele. Team training on the distinction between personal skills and corporate assets.

Interaction with other intellectual property rights

Trade secrets are not intellectual property rights in the strict sense, but they interact with other available protections. An effective protection strategy often combines several regimes.

Trade Secrets and Copyright

Cumulative protection: the source code of a software programme may simultaneously benefit from copyright protection (which protects the original form of expression) and trade secret protection (which protects the underlying algorithms and business logic).

Key differences:

Trade Secrets and Patents

Strategic choice: To patent or keep secret? This choice is fundamental and irreversible.

Patenting is preferable when: The invention is easily identifiable through reverse engineering. You want to monetize the invention (licenses, assignments). The commercial lifespan is less than 20 years. You need a title enforceable against all (including independent discoverers).

Trade secret is preferable where: the information does not satisfy the criteria for patentability. The secret can be sustainably maintained (no possible reverse engineering). The commercial life cycle exceeds 20 years. You wish to avoid the costs and the disclosure inherent in a patent.

Caution: a patent destroys the secret — Filing a patent entails publication of the invention (18 months after filing). Such disclosure is definitive: should the patent be invalidated or expire, the information remains in the public domain. The secret is forever lost.

Trade Secrets and Trademarks

Articulation: Trademarks protect a distinctive sign (public by nature), whereas trade secrets may protect the trademark strategy, positioning studies, and launch projects prior to public announcement.

Trade Secrets and Designs

Articulation: prior to the launch of a new design, the plans and prototypes constitute trade secrets. Once the product is marketed, protection passes to the design (registered or, within the EU, unregistered).

Trade secrets and know-how in contractual matters

In know-how license agreements or franchises, trade secrets are often the basis of the transferred value. Confidentiality clauses must be particularly carefully drafted, with a precise definition of the know-how scope, protection obligations for the licensee, and control mechanisms.

International Dimension

In a globalised economy, your trade secrets travel beyond borders. It is essential to grasp the international protection framework.

The Harmonized European Framework

EU Directive 2016/943 has harmonised protection across all 27 Member States. This means that the definition of trade secrets and the available remedies are similar throughout the European Union, thereby facilitating cross-border protection.

The TRIPS Agreement (WTO)

Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires the 164 WTO members to protect “undisclosed information”. This is the minimum ground of international protection.

International Comparison

Best Practices for International Protection

Adapt your NDAs to applicable law: An NDA governed by French law won’t have the same effectiveness before an American or Chinese court. Include choice of law and jurisdiction clauses.

Map your information flows: Identify where your secrets transit (subsidiaries, subcontractors, cloud). Each jurisdiction crossed requires a protection analysis.

Reinforce clauses with foreign partners: In some countries with weaker protection, stricter contractual clauses (penalties, bank guarantees) can compensate.

Consider international arbitration: For cross-border disputes, arbitration (ICC, LCIA) can offer faster proceedings and facilitated enforcement in many countries (New York Convention).

Patent vs Trade Secret: Comparison Table

Combined Strategy

The two protections are not mutually exclusive. An optimal strategy can combine: patenting key innovations (strong, monetizable protection) and keeping complementary information secret (manufacturing processes, optimization parameters, implementation know-how).

12. Q&A: Your Questions About Trade Secrets

What is the difference between a patent and a trade secret?
A patent grants a 20-year monopoly in exchange for public disclosure of the invention. A trade secret protects information as long as it remains secret (unlimited duration), but does not protect against independent discovery by a competitor (lawful reverse engineering). A patent is enforceable against everyone; a trade secret only protects against unlawful acquisition.

Can an employee use their knowledge with a new employer?
Yes, acquired know-how (“experience”) belongs to the employee. The line is crossed if they take documents, client files or use specific technical secrets identified as confidential by their former employer. The distinction lies in the nature of the information: general skills (usable) vs. protected information (prohibited).

What constitutes a “reasonable protection measure”?
There is no official list, but case law recognizes: “Confidential” marking of documents, restricted computer access, signed confidentiality clauses, physical security of premises and staff training. Complete absence of such measures prevents legal protection. “Reasonable” is assessed according to company size and nature of the information.

Do trade secrets override whistleblower protections?
No. The law provides clear exceptions (Article L.151-8 of the Commercial Code). Trade secrets cannot be invoked to prevent disclosure of illegal activity or wrongdoing aimed at protecting the public interest (right to alert). The 2022 Waserman law strengthened this protection.

How long does protection last?
It is potentially perpetual. It lasts as long as the three conditions (secrecy, value, protection) are met. If the information becomes public — through disclosure, leak or independent discovery — protection is immediately and definitively lost. The example of Coca-Cola’s formula (kept secret since 1886) illustrates this potentially unlimited duration.

Can trade secrets yield to the right to evidence?
Yes, since the French Cour de cassation’s ruling of February 5, 2025 (No. 23-10.953). The judge must verify whether production of the document is “indispensable” to prove the alleged facts and whether the infringement of secrecy is “strictly proportionate” to the aim pursued. This is a case-by-case assessment that excludes exploratory requests.

Must I explain my algorithms to data subjects?
Since the CJEU ruling of February 27, 2025 (C-203/22), yes for automated decisions with significant effects (scoring, profiling). You must provide “meaningful information about the logic involved” in an understandable manner. This doesn’t mean disclosing the complete algorithm, but explaining the criteria used and their influence on the decision.

What is the limitation period for legal action?
Civil action is time-barred after 5 years from the day the trade secret holder knew or should have known the last fact enabling them to exercise their action (Article L.152-2 of the Commercial Code). This period can be interrupted by a formal notice or legal proceedings.

How can I prove I held the information before the infringement?
Several methods establish a certain date: e-Soleau (INPI, €15 for 5 years, up to 20 years’ conservation, filed online via procedures.inpi.fr since the discontinuation of the paper format in April 2024), filing with a judicial commissioner (formerly bailiff, since the merger of the professions on 1 July 2022) or notary, blockchain timestamping, or APP filing for software. The creation date of a digital file does not constitute sufficient proof, as it may be altered.

May source code be protected by both copyright and trade secrets?
Yes, these two protections can be combined. Copyright protects the original form of the code (automatically, without formalities), while trade secret law protects the underlying algorithms and business logic (provided the 3 legal criteria are met and confidentiality is maintained).

Legal References

• Definition and criteria: Article L.151-1 of the French Commercial Code
• Lawful and unlawful acquisition: Articles L.151-3 to L.151-6 of the French Commercial Code
• Exceptions: Articles L.151-7 and L.151-8 of the French Commercial Code
• Limitation period: Article L.152-2 of the French Commercial Code
• European Directive: Directive (EU) 2016/943 of June 8, 2016
• 2025 case law: Cass. Com., February 5, 2025, No. 23-10.953 | CJEU, February 27, 2025, C-203/22
• Soleau Envelope: INPI – Soleau Envelope

Need to Audit Your Protection or Take Legal Action?

The Dreyfus law firm assists you in implementing your protective measures, drafting your NDAs, timestamping your trade secrets and defending your interests in the event of infringement.

Contact our experts

Dreyfus law works in partnership with a global network of lawyers specialised in intellectual property.

Nathalie Dreyfus with the support of the entire Dreyfus team.

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

Introduction

The term Habeas Data echoes the centuries-old principle of Habeas Corpus, transposing the protection of individual freedoms into the immaterial sphere of personal data. In the age of digital medicine and global circulation of medical information, Habeas Data serves as a true guardian of personal health data, ensuring each individual’s right to access, control, and correct the information relating to their most intimate sphere: their health.

The origins of Habeas Data

Historical context and legal philosophy

Habeas Data emerged in the 20th century in Latin America as a constitutional remedy, allowing individuals to protect themselves against the abusive collection, use, or storage of their data. It enshrines the principle that personal data, like individual liberty, must be protected against arbitrary interference.

Recognition in latin american constitutional systems

Countries such as Brazil, Colombia, and Argentina have incorporated Habeas Data into their constitutions, granting citizens the right to access, rectify, or delete personal data held by public or private entities. This mechanism has served as a model for broader debates on digital sovereignty.

Definition of Habeas Data and health data

What Habeas Data covers

Habeas Data guarantees every individual the right to consult personal data held by third parties and to request its rectification or deletion if inaccurate or unlawfully processed. It is a procedural right that enshrines the principle of informational self-determination.

Clarifying the notion of health data

Under Article 4(15) of the GDPR, health data is defined as personal data related to the physical or mental health of a natural person, including the provision of health care services, revealing information about their health status. Its specificity lies in its highly sensitive nature, as it can impact dignity, employment, insurance, or individual freedom.

Why Habeas Data is essential for health data

Sensitivity and risks of misuse

Health data is classified as a special category of data. Unauthorized disclosure can have serious consequences, such as denial of insurance, stigmatization, workplace discrimination, or reputational harm.

Safeguarding dignity, privacy, and autonomy

Habeas Data functions as a constitutional safeguard that keeps health data under the individual’s exclusive control. It strengthens privacy, personal autonomy, and informational integrity, especially at a time when electronic medical records and digital health platforms are becoming widespread.

Distinction from European mechanisms such as the GDPR

Points of convergence

Both Habeas Data and the General Data Protection Regulation (GDPR) pursue similar objectives: transparency, purpose limitation, and rights of access, rectification, and erasure. Both are based on the principle of giving individuals control over their personal data.

Key differences in scope and application

The essential difference lies in their legal nature. The GDPR is a regulation applicable across the European Union, imposing obligations on data controllers. Habeas Data, on the other hand, is a constitutional right directly enforceable before the courts, providing citizens with an effective remedy.

Strategic and legal challenges

Why Habeas Data was established

This mechanism was designed to limit the growing power of institutions and corporations handling sensitive data, particularly in the healthcare sector. It ensures that individuals retain control over information that can directly affect their privacy and decision-making.

Anticipating the challenges of health data protection

Protecting health data now intersects with cross-border data flows, artificial intelligence, and digital platforms. An effective strategy requires:

• strengthening compliance programs in healthcare institutions,
• implementing clear patient consent practices,
• monitoring international transfers of sensitive data.

Conclusion

Habeas Data acts as a constitutional shield for health data, complementing and sometimes surpassing European mechanisms such as the GDPR. Its procedural dimension strengthens the effective protection of individuals in an increasingly digital society.

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 is partnered with a global network of lawyers specializing in intellectual property.

Nathalie Dreyfus with the assistance of the entire Dreyfus team.

FAQ

1. What is Habeas Data in simple terms?
It is a right allowing any person to access their personal data and request its correction or deletion.

2. Why is Habeas Data particularly important for health data?
Because such data is extremely sensitive, and its misuse may cause discrimination, financial loss, or harm to dignity.

3. What is the difference between Habeas Data and the GDPR?
The GDPR is a European regulation imposing obligations, while Habeas Data is a constitutional right directly enforceable in court.

4. Does the GDPR also protect health data?
Yes, it classifies health data as “sensitive data,” requiring explicit consent and enhanced safeguards.

5. Which countries recognize Habeas Data?
Notably Brazil, Argentina, and Colombia, where it is enshrined in the Constitution.