Non classé

Legal definition, recent case law, litigation procedures, evidence methods and protection strategies — everything you need to know to protect 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

1. Fundamentals: What is a Trade Secret?

Unlike traditional intellectual property (patents, trademarks) which relies on a public title, trade secret law protects information by virtue of it remaining secret. This protection arose from a simple observation: some strategic information cannot or should not be patented.

The Legal Definition (Article L.151-1 of the French Commercial Code)

To be protected by law, information must cumulatively meet three strict criteria:

The 3 Cumulative Conditions

1. Secrecy
   The information is not generally known or readily accessible to persons within circles that normally deal with this type of information. This is the “non-obviousness” criterion: the information must not be commonplace in the relevant sector.
2. Commercial Value
   The information has commercial value (actual or potential) precisely because it is secret. This value can be direct (competitive advantage) or indirect (cost avoidance).
3. Reasonable Protection Measures
   The information is subject to concrete protection measures by its holder to maintain its secrecy. This is often the determining criterion in litigation.

Essential Point

If you don’t actively protect your information (confidentiality clauses, passwords, document classification), courts will consider there is no trade secret. This is the criterion most often neglected by companies.

What Does Trade Secret Law Cover?

The scope is very broad. The concept of “information” is interpreted extensively and includes:

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

Commercial information: customer 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.

Organizational information: strategic organization charts, management methods, optimized internal processes.

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

What Trade Secret Law Does NOT Protect

Understanding the limits of this protection is essential:

Independent discovery: if a competitor independently develops the same information, you cannot sue them.

Lawful reverse engineering: analyzing a product placed on the market to understand how it works is legal (unless contractually prohibited).

Information becoming public: once a secret is disclosed (voluntarily or not), protection is lost definitively.

General employee skills: the know-how acquired by an employee (their “experience”) belongs to them and can be used with a new employer.

2. 2024-2025 Case Law Review

Recent judicial developments have been marked by an ongoing tension between two imperatives: protecting business secrets and the right to evidence (a party’s need to obtain documents to assert their rights in court).

The Landmark Ruling: Cass. Com., February 5, 2025 (No. 23-10.953)

This was the major turning point. In a case between the franchise networks Speed Rabbit Pizza and Domino’s Pizza, the French Cour de Cassation established a structuring principle for balancing these rights.

The Legal Principle

“The right to evidence may justify the production of elements covered by trade secrets, provided that such production is indispensable to its exercise and that the infringement is strictly proportionate to the aim pursued.”

Practical implications:

For a judge to order production of a document covered by trade secrets, it must be indispensable to resolve the dispute, not merely “necessary” or “useful”. The term “indispensable” is intentionally restrictive: it excludes “fishing expedition” requests (exploratory evidence gathering).

The judge must conduct a proportionality assessment between the competing rights. This involves verifying that no less intrusive means of proof exists, and that the requested document is truly decisive for the outcome of the case.

Managing Seizures (Seizure-Infringement and Article 145 CPC)

When a company is subject to an ex parte seizure on its premises, how can it prevent its secrets from ending up with a competitor?

Case law requires strict application of provisional sequestration:

Documents seized that may violate trade secrets are placed in escrow with a third party (usually the bailiff). A period of one month is granted to the seized party to contest disclosure. The judge rules on whether documents can be communicated before any transmission to the seizing party, applying the proportionality test.

The Preparatory Ruling: Cass. Com., June 5, 2024 (No. 23-10.954)

This decision laid the groundwork for the balance, recognizing for the first time that the right to evidence could justify an infringement of trade secrets, while requiring strict judicial oversight.

Unfairly Obtained Evidence: Cass.Ass, December 22, 2023 (No. 20-20.648)

The French Cour de cassation ruled that evidence obtained unfairly (secret recordings, stolen documents) may be admitted in court if two conditions are met: production is indispensable to exercising the right to evidence, and the infringement of the opposing party’s rights is proportionate to the aim pursued.

3. 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) issued a major decision on the relationship between trade secrets and individual rights.

The Facts

An Austrian consumer was denied a mobile phone contract on the grounds of insufficient creditworthiness. This refusal was based on an automated assessment (credit scoring) conducted by Dun & Bradstreet. She requested an explanation of the “underlying logic” of this decision, invoking Article 15 of the GDPR (right of access). The company refused, citing trade secret protection of its algorithm.

The CJEU Decision

Principle Established by the CJEU

GDPR prevails over trade secrets regarding the right of access to personal data and information about automated decisions. The data controller must provide “meaningful information about the logic involved” in a manner that is “concise, transparent, intelligible and easily accessible”.

What this means for businesses:

Simply providing an algorithm or complex mathematical formula is not sufficient to fulfill the information obligation. The explanation must be understandable to a non-specialist.

The company must enable the individual to understand what data was used and how it influenced the decision. This doesn’t mean disclosing the complete algorithm, but explaining the determining criteria.

In case of dispute, allegedly protected information must be communicated to the judge who will balance the competing rights.

Sector Impact

This decision directly affects sectors using automated scoring: banks and credit institutions, insurance (personalized pricing), recruitment (automated CV screening), real estate rental (tenant creditworthiness), and more generally any automated decision-making process with significant effects on individuals.

4. Protection Strategies: “Reasonable Measures”

To benefit from legal protection, a company must prove it has implemented concrete measures. The term “reasonable” means appropriate to the nature of the information, the size of the company and the economic context. A SME doesn’t have the same resources as a Fortune 500 company, and courts take this into account.

Protection Measures Checklist

Legal Measures

• ☐ Non-disclosure agreements (NDAs): systematic before any discussion with a partner, service provider or investor
• ☐ Enhanced confidentiality clauses: in employment contracts and commercial agreements
• ☐ Non-compete clauses: for strategic positions, within legal limits
• ☐ IT charter: explicitly mentioning confidentiality duties and signed by all employees
• ☐ Internal regulations: incorporating confidentiality obligations

Technical Measures

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

Organizational Measures

• ☐ Document marking: “CONFIDENTIAL — TRADE SECRET” label on sensitive documents
• ☐ Information classification: confidentiality level system (C1, C2, C3…)
• ☐ Staff training: awareness of social engineering risks and information leaks
• ☐ Exit procedures: reminder interview about obligations, retrieval of access and documents
• ☐ Physical security: secured premises for sensitive paper documents
• ☐ Secret inventory: regular mapping of the company’s confidential information

Practical Tip

“CONFIDENTIAL” marking of documents is the simplest and most effective measure to prove in court. An unmarked document will be difficult to consider as a trade secret. Also invest in traceability: being able to demonstrate who accessed what information and when is invaluable in litigation.

5. Proving Your Secret: Timestamping Methods

In case of dispute, you will need to prove that you held the information before the alleged infringement. A computer file’s creation date is not sufficient proof (it can be modified). You need to establish a certain date.

The Soleau Envelope (INPI)

The best-known and most economical solution for SMEs and individual inventors.

Principle: You send a document in two identical copies to INPI (French Patent Office). One copy is kept by INPI, the other is returned to you with an official stamp certifying the date.

Cost: €15 for 5-year protection, renewable once (10 years maximum).

Advantages: Simplicity, low cost, established judicial recognition.

Limitations: Limited size (7 pages maximum per compartment), not suitable for frequent updates, no direct international validity.

Website: INPI – Soleau Envelope

Deposit with a Bailiff or Notary

Traditional solution offering maximum evidentiary weight under French law.

Principle: A ministerial officer certifies the content of a document on a given date and stores it.

Cost: Variable depending on volume, generally €100 to €500 for a simple deposit.

Advantages: Uncontestable evidentiary weight, universal acceptance by French courts, ability to deposit digital media.

Limitations: Higher cost, less agile procedure for frequent updates.

Blockchain Timestamping

Modern solution, particularly suited for tech companies and frequent updates.

Principle: A digital fingerprint (hash) of your document is recorded in a public blockchain (usually Bitcoin or Ethereum). This record is immutable and timestamped.

Cost: A few euros per timestamp via specialized services, or integratable into your internal processes.

Advantages: Automatable, suitable for software development pipelines (CI/CD), low marginal cost, traceability of each version.

Limitations: Judicial recognition still emerging in France (but growing), need to keep the original document corresponding to the hash.

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

APP Deposit (Software)

For source code and software, the French Agency for Program Protection offers a specialized deposit service.

Principle: Secure deposit of source code with certain date, recognized as proof of prior possession.

Cost: From €120 excluding VAT for 5 years.

Website: APP – Agency for Program Protection

Evidence Methods Comparison Table

6. Taking Legal Action: Procedures, Timelines and Costs

When a trade secret infringement is identified, several courses of action are available to the secret holder. The choice depends on urgency, severity of the infringement and objectives pursued.

Competent Jurisdiction

Civil Court (Tribunal judiciaire): competent for civil actions in trade secret matters. This is the general jurisdiction court.

Commercial Court (Tribunal de commerce): competent if the dispute is between two merchants or commercial companies and relates to commercial acts.

Labor Court (Conseil de prud’hommes): competent if the infringement is committed by an employee within the employment relationship (but action may be brought before the civil court for non-employment aspects).

Available Procedures

Interim Relief (Référé)

Fast-track procedure for obtaining provisional measures. Conditions: urgency and absence of serious dispute, or existence of imminent harm. Hearing timeline: generally 2 to 4 weeks after service. The judge can order provisional prohibition on use or disclosure of the secret, protective seizure of disputed products or documents, and penalty payments to ensure compliance.

Proceedings on the Merits

Full procedure for obtaining a definitive decision. Average duration: 12 to 24 months at first instance depending on complexity. Allows for final damages, permanent injunction and publication of the judgment.

Adapted Seizure-Infringement (Article L.152-3 of the Commercial Code)

Ex parte procedure (without the opposing party being notified) to establish an infringement and seize evidence. Application to the president of the civil court. Execution by bailiff at the presumed infringer’s premises. Sequestration of sensitive documents pending decision on their disclosure.

Limitation Period

Limitation Period: 5 Years

Civil action in trade secret matters 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.

Cost Estimates

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

Elements to Gather Before Taking Action

Before initiating proceedings, ensure you have the following elements:

Proof of prior possession: Soleau envelope, notarial deposit, blockchain timestamp.

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.

7. Remedies and Sanctions

In case of theft, misappropriation or unlawful disclosure, the law provides for extensive civil sanctions. Criminal liability remains limited to related offenses such as theft, breach of trust or receiving stolen goods.

What the Court Can Order

Prohibition orders: prohibition on using, manufacturing, marketing or disclosing the protected information. This prohibition may be accompanied by penalty payments for non-compliance.

Recall and destruction measures: product recall 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 repair reputational harm.

Damages: calculated taking into account negative economic consequences (loss of earnings, lost opportunity), moral damage, and profits made by the infringer through the infringement.

Legal Exceptions (Article L.151-8 of the Commercial Code)

Trade secrets cannot be invoked in certain situations of overriding interest:

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

Whistleblowers: disclosure of illegal activity or wrongdoing to protect the public interest (enhanced protection under the 2022 Waserman law).

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

Employee representatives: in the exercise of their functions (works council, union delegates).

8. Industry Case Studies

Trade secret protection is implemented differently across industries. Here are concrete examples illustrating the stakes and best practices.

Pharmaceutical and Biotechnology Industry

Typical Case: Protection of Development Data

A laboratory develops a new molecule. Before filing a patent (which requires disclosure), all R&D data constitutes critical trade secrets: preclinical trial results, tested formulations, observed side effects, synthesis processes.

Issue: A leak could allow a competitor to file a “blocking” patent or develop a similar molecule.

Recommended specific measures:

Strict compartmentalization of R&D teams (each team only has access to their part of the project). Laboratory notebooks timestamped and signed daily. Enhanced NDAs with CROs (Contract Research Organizations). Clean room procedures for license negotiations.

Technology Sector (Startups, Software Publishers)

Typical Case: Protection of Algorithms and Source Code

A startup develops a recommendation algorithm that constitutes its competitive advantage. The source code and model training parameters are trade secrets.

Issue: A developer leaving for a competitor could recreate a similar solution.

Recommended specific measures:

Technical architecture limiting access to complete code (microservices, module-based access). Systematic blockchain timestamping of commits. Specific confidentiality clauses in developer employment contracts. Monitoring of code repositories (GitHub, GitLab) to detect leaks. Formalized exit interviews with reminder of obligations.

Food and Beverage Industry

Typical Case: Protection of Recipes and Processes

A food manufacturer holds a unique recipe (sauce, beverage, processed product) whose secrecy is key to its market positioning. The most famous example is Coca-Cola, whose formula has been kept secret since 1886.

Issue: Disclosure would allow immediate copying by competitors or private labels.

Recommended specific measures:

Fragmentation of the recipe (different people know different parts). Coding of ingredients (internal codes instead of actual names). Restricted physical access to sensitive production areas. 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 about its clients. These elements constitute major intangible assets.

Issue: A consultant leaving for a competitor takes their “address book” and methods.

Recommended specific measures:

Formal documentation of methodologies marked “trade secret”. Strict policy on use of client data (no export, anonymization). Client non-solicitation clauses. Team training on the distinction between personal skills and company assets.

9. Coordination with Other IP 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

Cumulation possible: Software source code can simultaneously benefit from copyright (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).

Secrecy is preferable when: The information doesn’t meet patentability criteria. The secret can be maintained long-term (no reverse engineering possible). The commercial lifespan exceeds 20 years. You want to avoid patent costs and disclosure.

Warning: Patents Destroy Secrecy

Filing a patent requires publication of the invention (18 months after filing). This disclosure is definitive: if the patent is invalidated or expires, the information remains in the public domain. The secret is lost forever.

Trade Secrets and Trademarks

Coordination: Trademarks protect a distinctive sign (public by nature), while trade secrets can protect brand strategy, positioning studies, launch projects before public announcement.

Trade Secrets and Designs

Coordination: Before launching a new design, plans and prototypes are trade secrets. Once the product is marketed, protection shifts to design rights (registered or unregistered for the EU).

Trade Secrets and Know-How in Contracts

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.

10. International Dimension

In a globalized economy, your trade secrets cross borders. Understanding the international protection framework is essential.

The Harmonized European Framework

EU Directive 2016/943 has harmonized protection across the 27 member states. This means the definition of trade secrets and available remedies are similar throughout the European Union, 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.

Strengthen 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).

11. 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 affected individuals?
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: the Soleau envelope (INPI, €15 for 5 years), deposit with a bailiff or notary, blockchain timestamping, or APP deposit for software. A computer file’s creation date is not sufficient proof as it can be modified.

Can 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?

Dreyfus assists you in implementing your protection measures, drafting your NDAs, timestamping your secrets and defending your interests in case of infringement.

Contact Our Experts

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.

What is game reskinning?

Game reskinning involves copying the structure, logic, gameplay, algorithms, and mechanics of a game, while simply changing its appearance (graphic design, characters, sound interface) to give the illusion of a new game.

This practice, common in China, aims to reuse a successful gameplay without bearing the development cost or creative risk. As a result, it leads to “disguised” copies that seriously harm the legitimate rights holders.

Why is reskinning problematic?

• Consumer confusion: Players often fail to distinguish the original game from the copy.
• Harm to investment: Clones unfairly exploit the research and development (R&D) work of others.
• Revenue loss: Clones divert downloads and user engagement.
• Stifling innovation: By reducing the value of original creations, reskinning hinders technological progress.

3. The response of Chinese courts

3.1 A structuring case law

In the case of Rise of Kingdoms vs Commander (2024), the Guangdong High People’s Court condemned the company Jiujiu to more than 10 million yuan (USD 1.6 million) for copying the game mechanics of a competitor, while also copying the graphics from Age of Empires.
The court found that this combination—copying the “bones” (mechanics) and the “skin” (visuals) from two games—constituted parasitic behavior under Article 2 of the Chinese anti-unfair competition law (AUCL).
Three criteria were established:

1. Originality and competitive importance of the copied elements;
2. Extent of the reproduction compared to industry practices;
3. Bad faith or violation of honest business practices.

3.2 An evolving legal framework

Chinese courts have evolved: initially protective via copyright law (for software or audiovisual works), they now increasingly apply unfair competition law to sanction the abusive use of gameplay.
The Supreme Court also published a guideline in December 2024 on the judicial protection of technological innovation, recommending the broad application of AUCL clauses to fight “free riding” (Effortless gain) in innovative sectors.

What can developers and rights holders do?

• Document the creation process: design documents, code versions, aesthetic choices.
• Register protectable elements: trademarks, designs, interfaces.
• Implement proactive monitoring: detect clones on app stores.
• Build a strong evidence case: visual comparisons, confusion tests, economic data.
• Combine legal grounds: copyright, unfair competition, trade secrets.

Conclusion

Chinese courts mark a turning point in the fight against game reskinning, relying not only on copyright law but also on an evolving interpretation of unfair competition law. This strategy, now supported by hefty financial sanctions, is a deterrent to parasitic behavior in the gaming industry.
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 game reskinning?

   It is the practice of copying a game’s gameplay while only changing its appearance.

2. Why do Chinese courts impose high damages?

   To compensate for competitive loss and penalize unfair practices.

3. Are game mechanics protected by copyright?

   No, they are considered as ideas, but can be protected through unfair competition law.

4. Does this case law apply to foreign games?

   Yes, as long as they are exploited in the Chinese market.

5. What evidence is required?

   Screenshots, video comparisons, functional analyses, data on audience or revenue loss.

Background and Origins

On June 9, 2023, France enacted Law No. 2023-451, a pioneering piece of legislation aimed at regulating the commercial practices of influencers and protecting social media users. This law represents a significant step in regulating commercial influence and combating the abuses by influencers on various digital platforms.

Definitions and Objectives

In recent years, the sector of commercial influence has seen exponential growth but also significant deviations, ranging from the promotion of dangerous products to deceptive commercial practices. The Directorate General for Competition, Consumer Affairs, and Fraud Prevention (DGCCRF) conducted several investigations revealing increasing deceptive commercial practices. Simultaneously, the Professional Advertising Regulatory Authority (ARPP) had already established good practice rules and created an Observatory for Responsible Influence in 2019. However, these measures proved insufficient, prompting legislators to intervene more rigorously to regulate commercial influence and combat its abuses.

This new legislation is noteworthy for its role in regulating concepts increasingly integrated into our daily lives. Article 1 of the law precisely defines the term “influencer” as follows: “Individuals or legal entities who, for a fee, use their notoriety with their audience to communicate electronically to the public content aimed at directly or indirectly promoting goods, services, or a cause engage in the activity of commercial influence”. Additionally, the activity of influencer agents is now regulated by Article 7, which defines them as intermediaries representing influencers or facilitating their relations with advertisers while ensuring the compliance of their activities with the regulations in force.

In France, where the number of influencers is estimated at around 150,000, the behaviours of some have highlighted the need for stringent regulation to protect consumers, especially the younger one, who are highly susceptible to these new forms of advertising. With this context, the law mandates that platforms hosting influencer content identify and remove illegal materials while ensuring the transparency of commercial posts.

Influencers must now establish written contracts with advertisers, explicitly specifying the terms of their collaboration to ensure clarity and protection. Moreover, the law requires increased transparency: any publication must clearly indicate whether it is an “advertisement” or a “commercial collaboration” to avoid any confusion among consumers, in accordance with Article L. 121-3 of the Consumer Code.

Additionally, this legislation continues the efforts of the October 29, 2020, law by enhancing the protection of all sector actors, including minor influencers. Dedicated measures aim to secure the activity of child influencers on all digital platforms such as Instagram, Snapchat, TikTok, and extend the provisions initially provided for minor YouTubers by the October 19, 2020, law. Thus, these young influencers now benefit from the protections of the Labor Code. Their parents or legal guardians are required to sign contracts with advertisers, and a portion of the income generated is reserved for their future in the form of a nest egg.

Violations of these rules can result in severe penalties, including imprisonment of up to two years and fines of up to 300,000 euros. The law also establishes joint liability between the influencer, the advertiser, and their agent, ensuring that victims of abusive commercial practices can obtain effective redress.

Assessment After Several Months of Implementation of French Law No. 2023-451

Since its implementation, French Law No. 2023-451 has resulted in numerous sanctions against influencers for deceptive commercial practices. In response, online platforms have enhanced their monitoring policies to align with the new legislative standards.

Nevertheless, this law has encountered criticism from many content creators, who view it as an overly stringent government intervention. They contend that the swift enactment of this legislation may stifle creativity and innovation within the influencer marketing industry.

In response to these criticisms, a code of conduct for influencers has been developed. Although useful, this guide does not fully meet the legal requirements of Law No. 2023-451 and does not have the same legal standing as the legislation itself. However, it plays an important educational role by raising awareness among influencers about transparency and consumer protection issues. It also provides detailed explanations and practical tools, such as contract templates and compliance checklists.

In addition, the European Commission has expressed reservations about this law, suggesting that it may conflict with the Digital Services Act (DSA) and that it did not follow the notification procedure required by the Commission. As a result, the DDADUE law was promulgated on 22 April 2024 with the aim of revising the basic articles of the influencer legislation. This reform aims to align French legislation with European standards, including the E-Commerce Directive and the DSA, in order to ensure consistent regulation within the European Union.

Conclusion

Law no. 2023-451 represents a major step forward in the regulation of the commercial influence sector in France. While criticisms remain, the need to protect consumers and ensure greater transparency in the practices of influencers justifies these stringent measures. Future adjustments, in particular through the DDADUE law, will better harmonise French regulation with European standards and ensure uniform consumer protection across the European Union. Despite the criticism, the need to protect consumers and promote transparency in influencers’ advertising practices justifies the adoption of strict measures. Nevertheless, this regulation raises questions about its compliance with European directives, particularly with regard to freedom of expression and digital innovation.

The legal debate surrounding deceptive trade marks has taken on new significance with a preliminary question recently referred to the Court of Justice of the European Union (CJEU). This question focuses on the precise definition of a deceptive trade mark, particularly when the misleading information pertains not to the characteristics of the products or services but to the company itself.

Background of the Case

The case involves the French company Fauré Le Page, initially known for selling weapons and ammunition, as well as leather accessories. Founded in 1716 in Paris, the original Maison Fauré Le Page ceased operations in 1992, after which all its assets were transferred to its sole shareholder, the Saillard company. In 1989, Saillard filed an application for the French trade mark “Fauré Le Page,” covering products such as firearms and their parts, as well as leather and imitation leather goods.

In 2009, this trade mark was sold to a new entity, Fauré Le Page Paris, established that same year. This company subsequently filed, in 2011, two applications for French trade marks, both containing the words “Fauré Le Page Paris 1717” and covering various leather goods. However, these trade marks were contested by the company Goyard ST-Honoré, which sought their cancellation on the grounds that they were misleading, based on the old Trade Mark Directive (Directive 2008/95/EC, replaced by Directive (EU) 2015/2436).

Legal Framework

European trade mark legislation, particularly Article 4(1)(g) of the Trade Mark Directive (Directive (EU) 2015/2436), stipulates that a trade mark may be refused registration or annulled if it is “of such a nature as to deceive the public, particularly as to the nature, quality, or geographical origin of the goods or services.” Additionally, Article 20(b) of the same directive provides for the revocation of a trade mark if, after its registration, it becomes deceptive due to the use made of it by its proprietor or with the proprietor’s consent.

The main issue is whether a trade mark can be considered deceptive when it conveys false information not about the characteristics of the products or services, but about the attributes of the company itself, such as its founding date or age.

The Decision of the Court of Appeal and the question asked by the French Supreme Court (Cour de Cassation) to the CJUE

The Court of Appeal of Paris ruled that the “Paris 1717” trade marks was invalid. It found that the mention “Paris 1717” referred to the location and date of establishment of the company, which could mislead the public into believing in the continuity of the company’s operations since that date and the supposed transfer of know-how from the original Maison Fauré Le Page to Fauré Le Page Paris. This judgment was based on the fact that the original company had ceased its activities in 1992, while the new entity was founded in 2009.

However, Fauré Le Page Paris appealed this decision to the Cour de Cassation, arguing that Article 4(1)(g) of the Trademark Directive required deception regarding the characteristics of the products and services, not the qualities of the trade mark owner, such as the company’s founding year.

The Preliminary Question to the CJEU

Faced with this interpretation of the law, the Cour de Cassation decided to refer a preliminary question to the CJEU. It asks whether a trade mark can be considered deceptive when the false information concerns the age, reliability, and know-how of the manufacturer, rather than the characteristics of the goods themselves. Specifically, it poses two questions to the CJEU:

1. Should Article 4(1)(g) of Trademark Directive be interpreted to mean that a reference to a fictitious date in a trade mark, conveying false information about the age, reliability, and know-how of the manufacturer, is sufficient to establish the existence of actual deception or a serious risk of deceiving consumers?

2. If the answer to the first question is negative, should that article be interpreted to mean that a trade mark can be considered deceptive if there is a likelihood that consumers will believe that the trade mark owner has been producing these goods for centuries, thereby conferring a prestigious image on them, when this is not the case?

The outcome of this case could have significant implications for companies using historical references in their branding strategy. If the CJEU concludes that such a practice is deceptive, it could broaden the grounds for annulment of trade marks to include false information about the company itself, not just the products or services.

There is already precedent in European case law. For example, in the W. F. Gözze Frottierweberei and Gözze case (C-689/15), the CJEU ruled that for a trade mark to be deceptive, it must, by itself, create a risk of deceiving consumers, regardless of the use made of it after registration.

Furthermore, if the preliminary question had been posed under Article 20(b) of TMD3, which focuses on deceptive use of the trade mark after registration, the answer might be different. This article does not limit deception to the characteristics of the goods or services but could include misleading information about the company.

In any case, if the geographical origin of goods and services can be considered an important characteristic under Article 4(1)(g) of the Trademark Directive, why not the founding date of the company? Both are intangible properties, but they can significantly impact the perceived quality of goods and services and consumers’ purchasing decisions.

Future Implications

The decision the CJEU makes in this case will be crucial. It could redefine the legal criteria surrounding the notion of a deceptive trade mark, with potential repercussions for branding strategies, particularly in the luxury sector, where history and heritage play a key role. Companies may need to reassess their branding strategies to ensure that any historical or prestigious references are not perceived as misleading by consumers.

It is essential for companies to take a proactive approach to trade mark management, ensuring that the historical or prestigious information they use does not mislead consumers. The CJEU’s decision could also have an impact beyond Europe, influencing trade mark practices globally.

This case highlights the increasing importance of protecting consumers against misleading commercial practices and underscores the need for companies to maintain full transparency in their brand communication.