Industrial Property Law

Protection of designs, like that of patents, tends to stimulate creative effort by conferring a monopoly of exploitation on the owner of the title. But whereas a patent enriches society with an industrial discovery, the creator of a design merely gives a new look to a known product. Design rights protect the endeavors of economic operators to give their products a specific appearance. The purpose  …

Introduction

Protection of designs, like that of patents, tends to stimulate creative effort by conferring a monopoly of exploitation on the owner of the title. But whereas a patent enriches society with an industrial discovery, the creator of a design merely gives a new look to a known product. Design rights protect the endeavors of economic operators to give their products a specific appearance. The purpose of creation is to enhance enjoyment, not utility. This is why the rules of artistic property and industrial property are interwoven.

The first French law on designs was passed on 18 March 1806, under the auspices of silk merchants and manufacturers in Lyon. It was repealed by the Law of 14 July 1909 , which introduced a new system that allowed concurrent protection with copyright. It was modernized by the Law of 26 November 1990 , then incorporated into the Intellectual Property Code in 1992. To take account of Directive No 98/71 of 13 October 1998 , which implements a partial approximation of Member States' design registration laws, Ordinance No 2001-670 of 25 July 2001  reformed the system introduced by the Law of 14 July 1909. It toughened the conditions of access to design protection, increased the grounds for invalidity and shortened the duration of the monopoly. In parallel with national protection systems, Regulation No 6/2002 of 12 December 2001 on Community designs established an autonomous system for the protection of unitary rights producing the same effects throughout the EU, and strengthened the protection of industrial aesthetics. Following this regulation, the Law of 29 October 2007  introduced specific provisions for Community designs into the Intellectual Property Code (Art. L. 515-1, L. 522-1 and L. 522-2 IP Code), and aligned the protection of designs against infringement with that of patents and trademarks. Lastly, the Pacte Law of 22 May 2019, with the new Article L. 521-3-2, made actions for invalidity of designs not subject to any statute of limitations. Codified in Book V of the Intellectual Property Code (Art. L. 511-1 s. IP Code), the current design regime applies to both national and EU designs. Designs registered before 1 October 2001 remain subject to the regime in force prior to the Ordinance of 25 July 2001 .

On 22 November 2022, the Commission published proposals for a European directive and regulation to modernize industrial design law within the Union . This “Design Package” aims to adapt European design systems to the digital age, making them more accessible and efficient for independent designers, SMEs and industries in order to encourage innovation and competitiveness. In particular, the proposed directive aims to open up the spare parts market to competition, improve the accessibility, effectiveness and affordability of Community design protection, and increase complementarity and interoperability between Community and national design systems, notably by aligning the procedural rules .

Designs enjoy dual protection, since design rights can be combined with copyright. In effect, copyright applies uniformly to plastic art, the applied arts and creations from the seasonal clothing and ornament industries (Art. L. 112-2, 10 and 14 IP Code). This dual protection is based on the principle of the unity of art formulated in Art. L. 112-1 of the Intellectual Property Code, according to which the provisions of the same code protect the rights of authors in all works of the mind, whatever their genre, form of expression, merit or purpose. In addition, under Article 17 of Directive No 98/71, Member States are obliged to combine protection, the scope and conditions of such protection, including the degree of originality required, being determined by each Member State. However, the cumulation principle does not apply automatically. In effect, while initially cumulation was total, enabling a registered design to benefit automatically from copyright protection, it is now only partial , which means that the court must examine whether the conditions for specific copyright protection of the registered design are met  independently of the conditions of protection specific to design law .

Law of 14 July 1909 on designs and models, OJ of 19 July 1909.

Law No 90-1052 of 26 November 1990 on industrial property, OJ 0276 of 28 November 1990.

CA Paris, 17 January 2014, LawLex202100004727JBJ.

 Directive No 98-71 of 13 October 1998 on the legal protection of designs, OJ L 289 of 28 October 1998, 28-35.

Ordinance No 2001-670 of 25 July 2001 adapting the Intellectual Property Code and the Post and Telecommunications Code to Community law, OJ 173 of 25 July 2001.

Law No 2007-1544 of 29 October 2007 on the fight against intellectual property infringement, OJ 252 of 30 October 2007.

Cass. com., 4 July 2006, LawLex202100002714JBJ, which specifies that the validity of the right attached to a design registration is assessed at the date on which the right arose, so that the new law, which only governs infringement committed after its entry into force, is not applicable.

Proposal for a directive on the legal protection of designs (COM(2022)667) and Proposal to amend Regulation No 6/2002 (COM(2022)666).

Proposal for a directive on the legal protection of designs (COM(2022)667), explanatory memorandum.

Cass. crim., 13 December 2011, LawLex202300008376JBJ, specifying that while the protection derived from the registration of a design is granted by Article L. 513-2 of the Intellectual Property Code without prejudice to the rights resulting from the application of the provisions relating to copyright, the legislation does not impose total or automatic cumulation of these various forms of protection, but only authorizes such cumulation where the respective possibilities of the different forms of protection are satisfied.

Cass. com. 29 March 2017, LawLex201700000635JBJ.

Industrial Property Law

426. Introduction

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426. Introduction

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