Cabinet Beau de Loménie
Officially published on 18th March 2014, the law of 17th March 2014 on consumer affairs (also called the “Hamon” law) aimed to strengthen the rights of consumers by setting up “new tools of economic regulation in order to balance power between consumers and professionals”.
Among these new provisions, the class action is one of the key measures of the new law, since it now allows consumers, via their representatives (i.e. consumer associations), to take legal action collectively in order to assert their rights and to obtain collective compensation in only one legal proceeding. In the past, each consumer had to take action individually in order to get compensation, which inevitably increased procedures and costs.
Regarding industrial property, the law creates new geographical indications (GI) which protect industrial and artisanal products.
EU law already provides for a harmonized system on the protection of geographical indications, and this is integrated into national legislation, but those GI concern wine products and agricultural food products only (cf. European Regulations n° 1151/2012, 491/2009 and 110/2008). Although the creation of GI for industrial and artisanal products is something totally new, the French legislator has set up a system of protection very similar to the one in place for existing GI.
The definition of GI for industrial and artisanal products, provided by new article L721-2 of the French Intellectual Property Code (IPC), does not differ from the international definition of GI coming from art. 22(1) of the TRIPS.
The conditions for protection are almost identical to those which exist for GI concerning food products: in addition to the need for a link to the geographical origin, producers have to respect a strict specification which defines the rules of production and/or transformation of the product (art.L721-2 and L721-7 of the IPC). The specification is adopted by a Defence and Management Organisation (art.L721-6 of the IPC) which then has to file it at the French IP Office for approval (art.L721-3 of the IPC).
The legal protection in itself is provided by article L721-8 of the IPC which is almost identical to article 13 of the EU Regulation n°1151/2012.
In fact, the only real difference between the system of protection of GI concerning industrial and artisanal products and that of GI concerning food products consists in its administration. Indeed, the former is exclusively administered by the French IP Office (and not by the National Institute for Designations of Origin), hence the additions in articles L411-1 and L411-4 of the IPC, relating to the tasks of the French IP Office.
Besides the addition of a new section 2 within the IPC, for the creation of GI concerning industrial and artisanal products, article 73 of the new law on consumer affairs modifies certain provisions of the Intellectual Property Code aiming to enhance the legal protection of GI and the legal protection of names of regional/local territories.
Indeed, in art. L711-4 (d) of the IPC, one can notice that GI are added to the list of prior rights which can be invoked by a third party in a cancellation action against a trademark.
The new law also creates an art. L112-2-1 which allows regional and other local territories to be automatically informed by the French IP Office of trademark applications that are made up (or at least, partly made up) of their protected names or made up of a name of a local authority located within their geographical territory. This provision should enable regional/local territories to file some observations or file an opposition against the registration of such trademarks. However, it is not clear how this new mechanism will operate in practice since up to now the French IP Office has not handled a watch of this type.
Furthermore, with the modification of article L712-4 of the IPC, two new categories of persons are now entitled to oppose a trademark application: first, the regional authorities in a case where the contested trademark affects their name, image or reputation or where it affects a GI if that GI comprises the name of the regional territory concerned; second, a Defence and Management Organisation whose GI has been officially approved (or is to be approved).
Thus, the law on consumer affairs of 17th March 2014 sets up new measures protecting local territories and creates new geographical indications to enhance the value of local French industrial and artisanal products, as this already currently exists for foodstuffs. In the context of the economic crisis, this is an indirect way to promote products “made in France” and to encourage the consumer to buy products whose origin is certified, which is a guarantee of quality.