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28-01-2015 » Perspectives for Industrial Property in Europe and France in 2015

In Europe:

It seems that 2015 will not be the year in which we will see the implementation of the Unitary Patent Regulation and the Unified Patent Jurisdiction (Commission Regulation N° 542/2014 which amends EU Regulation N° 1215/2012 regarding the rules applicable to the unified patent court and the Benelux court and EU Regulation N° 1257/2012 which implements enhanced cooperation in the creation of unitary protection conferred by a patent and EU Regulation N° 1260/2012 which implements enhanced cooperation in the field of the creation of unitary protection conferred by a patent, regarding the terms applicable to translation) as it appears to have been postponed to 2017. This implementation depends most notably on the ratification of the Agreement on a Unified Patent Court by thirteen Member States, including France, Germany and the UK. However, the number of ratifications to date is far from the number required. Indeed, to date there are only five ratifying States: Austria, Belgium, Denmark, France and Sweden. Furthermore, ratification by Germany and the UK in 2015 seems highly unlikely for reasons of internal politics.

In the meantime, discussions continue on official fee rates, on the 17th and final version of the applicable rules of procedure for the European patent court and on judicial training for the judges who will serve on the Unified Patent Court.

On the other hand, while its adoption was previously postponed to an unspecified date, the "Trademark package" could be voted for in March following a final discussion between the European Parliament, the Council and the European Commission. At present, however, it is not possible to know if the current version of the texts amending Regulation (EC) No 207/2009 on the Community trade mark and Directive No. 2008/95/EC to approximate the laws of the Member States with regards to trade will be the final version, notably with regard to the issue of goods in transit from countries outside the EU.

Other draft European legislation is under discussion, such as a text on trade secrets (a draft Directive, proposed by the European Parliament and the Council, on the protection of know-how and undisclosed commercial information (trade secrets) against their unlawful acquisition, use and disclosure), and a text on personal data (a draft Regulation, proposed by the European Parliament and the Council, on the protection of individuals with regards to the processing of personal data and on the free movement of such data (general regulations on data protection)).

These texts form part of developments that accompany the digital age, and are intended to allow harmonization between Member States on these sensitive issues. However, the timetable for their adoption is uncertain. Similarly, discussions are underway regarding a possible revision of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society.

In France:

Law N° 2014-315 passed on March 11, 2014 strengthening the fight against counterfeiting is still pending an implementation decree with regard to patent related customs seizures. Similarly, the implementation of protection for geographical indications for manufactured goods, which forms part of the so called "Hamon" Law, remains suspended until the publication of a decree.

Enhanced protection of trade secrets should now be debated following the introduction of draft law N° 2139 in the National Assembly on July 16th 2014. France has in fact decided to anticipate EU plans on the subject and provide protection to companies for their tangible and intangible assets. This national legislation is likely to be adopted before its equivalent is passed at European level. At one stage certain provisions of this proposal were to be incorporated into the law on growth and activity known as the "Macron" law, currently pending before the National Assembly, but they were eventually withdrawn. It is hoped that the French text, once adopted, will not need modifications if the final EU provisions on the matter differ.

Finally, a draft law on copyright (draft law implementing various EU provisions in the field of literary and artistic property and cultural heritage) is also under consideration. It aims to transpose into French national law the Directive 2011/77 / EU which amends Directive 2006/116 / EC on the term of protection of copyright and certain neighbouring rights, Directive 2012/28 / EU on certain permitted uses of orphan works and Directive 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a member State and amending Regulation (EU) No 1024/2012 (recast).

In Brief: In a judgment given on January 6th 2015, the French Supreme Court rejected an appeal against an appeal judgment cancelling the trademark "I Love Paris" and its variations for lack of distinctive character. The Supreme Court considered that the basic trademark function of identifying origin was not satisfied by the sign in question as it does not inform the relevant public that the goods or services originate from a particular undertaking (Appeal No: 13-17108).

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