Industrial Property Law

Before the reform introduced by the Ordinance of 25 July 2001, paragraph 2 of former Article L. 511-3 stipulated that when an object can be considered both as a new design and as a patentable invention, and if the elements constituting the novelty of the design are inseparable from those of the invention, this object can only be protected by patent law . This criterion of protection by explicit re …

System prior to reform introduced by Ordinance of 25 July 2001

Before the reform introduced by the Ordinance of 25 July 2001, paragraph 2 of former Article L. 511-3 stipulated that when an object can be considered both as a new design and as a patentable invention, and if the elements constituting the novelty of the design are inseparable from those of the invention, this object can only be protected by patent law . This criterion of protection by explicit reference to patentability remains applicable to designs filed and registered prior to the entry into force of the ordinance.

To assess whether a design is inseparable from its function, the courts initially applied the criterion of multiplicity of forms, according to which the shape must be considered independent of the technical result if such a result can be obtained by means of one or more different shapes . This criterion has been progressively abandoned  and replaced by that of seeking a purely aesthetic or ornamental character independent of the product's functionalities. Thus, under the former Article L. 511-3, the shape is protectable when it is the result of ornamental, aesthetic , decorative or fanciful research, characterizing a creative effort  or when it is original  or bears the imprint of the author's personality , without any necessary connection with the purpose given to the object . It is excluded from protection when it is dictated by the function it performs , is merely commonplace and utilitarian  or when it conveys an overall impression that is indistinguishable from the exclusively functional aspects of the design . In the case law, for example, the transparent appearance of a medical support stocking  or the shape of a set of paving stones have been considered inseparable from their function, particularly since the rounded shape of the sides and the absence of sharp edges tend to facilitate fitting and avoid the risks of brittleness and breakage .

See, however, CA Paris, 6 July 1994, D19940048, PIBD 1994, 577, III-587.

Cass. crim. 6 June 1991, LawLex202200001955JB.

CA Paris, 3 April 2002, LawLex202100004750JBJ.

Cass. com, 21 October 1997, LawLex202300008242JBJ.

Cass. com. 7 December 1993, LawLex202300008243JBJ.

Cass. com., 20 October 1998, LawLex202300008240JBJ, which states that when the shape of a design for a mountain bike is inseparable from its technical function, even though it could have been obtained in other ways, the design is not protectable.

CA Paris, 10 July 2001, LawLex200200000686JBJ; 6 July 1994, LawLex202300009117JBJ.

CA Poitiers, 16 May 2007, LawLex202100002595JBJ; Cass. com, 7 April 1998, LawLex200200001141JBJ, which upheld the protectability of a model of jacket the decorative aspect of which, through the effect of topstitching placed at a short distance from the edges of the sleeves and the fastening, through a covering stitch accompanying the pockets, through the rolled finishing band and the V-shaped cut-out with a fastening system comprising a few buttons, and through three patch pockets with a rounded base, confers an originality revealing the creative effort of the designer.

Cass. com. December 13, 1994, LawLex202300008246JBJ, which states that topstitching on a garment, giving it a decorative and ornamental character, and excluding any utilitarian function insofar as the different parts of the pants are linked together by invisible seams, makes it possible to characterize the originality of the model.

Cass. civ. 1re, 28 November 2000, LawLex202300008244JBJ; Cass. com. 15 March 2017, LawLex201700000544JBJ.

CA Paris, 27 September 2013, LawLex201400001204JBJ.

TGI Paris, 27 June 2013, LawLex201400001204JBJ; CA Poitiers, 16 May 2007, LawLex202100002595JBJ, relating to models of collars and harnesses for domestic animals the shapes of which are purely commonplace and utilitarian and do not present any aesthetic, decorative, ornamental or fantasy design, characterizing a creative effort by their maker; Cass. com., 9 June 2009, LawLex202300008241JBJ, relating to a model of lure. See also Cass. com., 21 March 1995, LawLex202200000882JBJ; 22 March 2005, LawLex202200001239JBJ, which specifies that a make-up brush model is protectable when there is a specific proportion that is not imposed by technical requirements, with a tapered tip and narrowing of the handle giving it an aesthetic appearance outside the technical requirements. 

Cass. com. 15 March 2017, LawLex201700000544JBJ.

Industrial Property Law

445. System prior to reform introduced by Ordinance of 25 July 2001

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Les notions juridiques connexes

445. System prior to reform introduced by Ordinance of 25 July 2001

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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