Industrial Property Law

In order for a design to benefit from protection, it is necessary to ensure that it is not subject to complete anticipation  (antériorité de toutes pièces), i.e. that it has all the characteristics necessary to combat the novelty claimed , since mere similarity  or elements of similarity  are not sufficient to establish complete anticipation. A design which has been completely anticipated is there …

Complete anticipation

In order for a design to benefit from protection, it is necessary to ensure that it is not subject to complete anticipation  (antériorité de toutes pièces), i.e. that it has all the characteristics necessary to combat the novelty claimed , since mere similarity  or elements of similarity  are not sufficient to establish complete anticipation. A design which has been completely anticipated is therefore not protectable . 

The courts have the final say as to whether the alleged prior uses are complete , by making an overall examination of the registered design and the previously disclosed design, both taken as a whole  , taking into account the visual impression produced by each of them . Prior use is not prejudicial to novelty when the design has a distinctive appearance that distinguishes it from other products of the same type , differs from similar objects either by a distinct and recognizable configuration, or by one or more external effects that give it a distinctive and new appearance , or presents such differences from the prior art invoked in its material, volume, general shape, the relative proportion of the various elements of which it is composed that, far from producing a similar overall impression in the eyes of an informed observer, it is distinguished from it by immediately perceptible elements .

The absence of a time-limit on the search for prior art does not preclude the protection of a design that draws its inspiration from the common artistic heritage  or develops classic common themes , as long as it is original in relation to designs that have fallen into the public domain . Thus, a design incorporating the traditional data attributed to a well-known figure can be protected when its designer presents or arranges these elements in a personal and original way, and when the designer composes with elements subject to his or her interpretation and subjectivity on this figure . Although lanterns have existed for a long time, a design for very small lanterns attached to a garland with small bulbs is protectable if no design for lanterns for light decoration has been created prior to filing . Furthermore, a combination of elements belonging to the public domain, which are extremely commonplace for the products concerned , known or still functional, can be protected when there is no complete anticipation comprising all the features of such a combination , even if the prior uses presented contain each of the features of the registered design .

CA Paris, 16 January 2002, LawLex202100003585JBJ.

CA Bordeaux, 10 November 2021, LawLex202200000999JBJ; CA Paris, 27 March 2015, LawLex201500000380JBJ, concerning two multimedia boxes with different colors, facades and wording.

CA Paris, 9 September 2009, LawLex202100003587JBJ.

CA Paris, 30 May 2001, LawLex200300003021JBJ, for a furniture designer who drew his inspiration from the artistic pool of furniture designers of 1930.

CA Versailles, 13 October 2011, LawLex201200000612JBJ, relating to fancy dress costumes.

CA Nîmes, 21 January 1993, LawLex200200001669JBJ, which found that the drawings at issue, inspired by “Indian” canvases in the public domain, were in no way original in relation to drawings dating back to 1800 and 1820 and belonging to the collections of the Musée de l'Impression sur Etoffes de Mulhouse, since they displayed the same stylistic research, the same contrast between the three-branched emblem and its support, and the repetition of the emblem in a staggered pattern.

CA Pau, 12 November 1998, LawLex202100003343JBJ.

CA Paris, 14 December 2005, LawLex202100004752JBJ.

CA Paris, 27 March 2015, LawLex201500000380JBJ.

CA Paris, 7 April 2015, LawLex202100003278JBJ.

CA Nancy, 31 October 2016, LawLex202200009260JBJ.

CA Paris, 30 March 2017, LawLex202100003280JBJ.

 CA Paris, 28 January 2009,  LawLex202200001359JBJ; CA Paris, 7 December 2011, LawLex201100001966JBJ.

CA Paris, 14 February 2003, LawLex200300003551JBJ.

Cass. com., 1 July 2008, LawLex200800001959JBJ.

TGI Paris, 30 March 2017, LawLex202100003280JBJ; TGI Nantes, 27 May 2008, LawLex202200000812JBJ; CA Paris, 25 May 1994, LawLex200001563JBJ, which states that prior use must be analyzed synthetically, and not element by element; 7 November 2001, LawLex200006167JBJ; 29 January 2010, LawLex201000000727JBJ.

CA Paris, 25 June 2021, LawLex202200000880JBJ; CA Paris, 9 September 2009, LawLex202100003587JBJ.

CA Paris, 11 February 1998, LawLex200200001179JBJ.

CA Paris, 3 December 1997, LawLex202200001176JBJ; CA Paris, 20 October 1995, LawLex202100003341JBJ.

Industrial Property Law

431. Complete anticipation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

431. Complete anticipation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise