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Anti-Counterfeiting 2015 a Global Guide Advert France BARDEHLE PAGENBERG Société d’exercice libéral par actions simplifiée Avocats au barreau de Paris Julien Fréneaux and Viviane Azard Anti-counterfeiting 2015 A Global Guide Advert ... IP only. Legal Services Patent | Trademark | Design | Copyright Litigation | Prosecution | Advice Searches | Valuations | Portfolio Management License Agreements | Unfair Competition Law Technical Areas Electronics | Mechanics | Automotive | Energy Information Technology | Software | Computer Technology Chemistry | Life Sciences | Pharma | Medical Devices BARDEHLE PAGENBERG Société en participation d‘avocats au barreau de Paris 10 Boulevard Haussmann 75009 Paris France T +33.1.53 05 15 00 F +33.1.53 05 15 05 [email protected] Munich | Dusseldorf | Paris | Barcelona | Milan www.bardehle.com ... IP only. France BARDEHLE PAGENBERG Legal Services Patent | Trademark | Design | Copyright Litigation | Prosecution | Advice Searches | Valuations | Portfolio Management License Agreements | Unfair Competition Law Technical Areas Electronics | Mechanics | Automotive | Energy Information Technology | Software | Computer Technology Chemistry | Life Sciences | Pharma | Medical Devices Authors Julien Fréneaux and Viviane Azard Legal framework 315, which entered into force on March 13 As France is an EU member state, 2014 and strengthened the fight against Community trademarks and designs, which counterfeiting. The new law, which are valid in the European Union as a whole, amended the IP Code and the Customs are also valid in France. France also belongs Code, improves the compensation of to all major international agreements in rights holders for infringement and the IP field, such as the Paris Convention, strengthens the right of information as the Berne Convention and the Agreement well as infringement seizure procedures. on Trade-Related Aspects of IP Rights, and It also brings the IP Code and the Customs all substantive and procedural agreements Code into line with the new EU Customs dealing with patent, trademark and Regulation (608/2013). copyright law. France is a member of the Madrid Agreement and the Protocol to the Border measures BARDEHLE PAGENBERG Madrid Agreement. French Customs plays an efficient role Société en participation The French IP Code brings together the in protecting the French market from main French statutes relating to IP matters. counterfeit goods. Its power is not limited d‘avocats au barreau de Paris One of the last major amendments to the to interventions at the borders; rather, 10 Boulevard Haussmann code was passed on October 29 2007, when it can intervene anywhere in the French 75009 Paris Parliament transposed into French law territory. the EU IP Rights Enforcement Directive Customs can detain goods that are France (2004/48/EC). Additional provisions suspected of infringing IP rights for up T +33.1.53 05 15 00 concerning certain criminal aspects of IP to 10 working days. Within this time, the F +33.1.53 05 15 05 rights enforcement are included in the rights holder must notify Customs that [email protected] Customs Code. legal proceedings against the infringer have The most recent reform was Law 2014- been initiated; otherwise, the goods will Munich | Dusseldorf | Paris | Barcelona | Milan www.bardehle.com www.WorldTrademarkReview.com Anti-counterfeiting 2015 – A Global Guide | 129 FRANCE BARDEHLE PAGENBERG BARDEHLE PAGENBERG FRANCE In case of extreme urgency, the plaintiff may initiate urgency proceedings called ‘référé d’heure à heure’ and obtain a preliminary injunction in a few days be released. The detention period may be The filing is valid for one year and can be extended for 10 additional working days renewed. Customs also has the power to if the detention is based on the new EU detain ex officio goods that are suspected Customs Regulation and, under Law 2014- of infringing IP rights for up to three 315, if the detention is based on domestic working days. Within the same period, the proceedings as well. Law 2014-315 also rights holder may also file an application extends customs detention measures for customs surveillance as mentioned in domestic proceedings to IP rights for above. which they did not previously exist (ie, Rights holders are concerned by the patents, copyright, plant variety rights fact that, since the European Court of and geographical indications) in order to Justice (ECJ) decisions in Nokia and harmonise French national rules with those Philips (December 1 2011), they cannot laid down by the new customs regulation. prevent the transit of counterfeit goods The so-called ‘simplified procedure’, through the EU territory. As a result of which was optional under the previous EU the decisions, French Customs reduced Customs Regulation (1383/2003), has been their control of goods in transit in the made mandatory by the new EU regulation European Union, since goods cannot be and by Law 2014-315. Under the simplified regarded as infringing IP rights until the procedure, Customs can hold that the intention to put them on the market has holder or declarant of the suspected been proven. Since then, the number of goods has agreed to the destruction of the goods seized by Customs has substantially goods if it does not oppose the proposed decreased. However, the modification destruction within 10 working days of introduced by Article 6 of Law 2014-315, notification of the suspension of the release which adds transshipment (ie, the direct or or detention of the goods. indirect transfer of goods from one means Law 2014-315 also extends Customs’ of transport to another) to the list of acts competencies relating to infiltration and infringing copyright, designs, patents, coups d’achat (purchases of infringing plant variety rights and geographical goods with the authorisation and under indications, is unlikely to change this the control of the public prosecutor), which situation immediately. Indeed, even though were previously limited to trademarks the transshipment of goods has been and design infringement cases, to cover considered to be an act of infringement of all other infringement cases (patents, trademark rights since 2004 (Article L 716-9 copyright, plant variety rights and of the IP Code), this provision is not applied geographical indications). by the French courts as it contravenes In order to benefit from customs EU law. However, Law 2014-315 is in line actions, rights holders can file a formal with the text adopted on February 25 2014 application for free customs surveillance. by the European Parliament under the 130 | Anti-counterfeiting 2015 – A Global Guide www.WorldTrademarkReview.com BARDEHLE PAGENBERG FRANCE revised Community trademarks legislation. the criminal sentence. Under the Customs Therefore, Law 2014-315 may foreshadow Code, the penalties can be increased to up the new EU right, even if, at this stage, the to 10 years of imprisonment and a fine of outcome of the EU negotiations remains up to five times the value of the products uncertain. when the offence was committed by an organised criminal group. Criminal prosecution More than 600 IP rights infringements The infringement of IP rights may were punished by the French criminal constitute a criminal offence under French courts during 2011, including 148 with law if there is criminal intent. actual or suspended prison sentences. Public prosecutors may initiate criminal If the rights holder is a party to the proceedings against infringers, including criminal proceedings, the criminal courts emergency (accelerated) proceedings. may grant damages, but the amount However, this is unusual as they more often is usually limited compared to civil act at the request of Customs or the rights proceedings. Combined with the fact holder. Criminal proceedings can also be that criminal courts are not specialised initiated by rights holders directly. in the IP field, this explains why criminal In principle, criminal intent must be proceedings remain relatively uncommon proven by material evidence. However, in IP-related matters and why they are it can also be presumed from the mostly initiated by Customs; rights holders circumstances of the infringement. In themselves more often choosing civil some cases, criminal courts may even find enforcement. that criminal intent results from mere negligence on the part of the infringer. Civil enforcement The infringer may be sentenced to The Paris court is the only court with imprisonment for up to five years and to a jurisdiction over infringement and fine of up to €500,000. Moreover, criminal invalidation proceedings relating to patents courts may order the total or partial, (both national patents and European permanent or temporary closure (for up to patents valid in France), employee five years) of the establishment that was inventions, supplementary protection used to commit the offence. In case of a certificates, Community trademarks and second offence, or if the infringer is or has Community designs. For all other IP-related been bound by contract to the rights holder, matters, only 10 courts, including the Paris the penalties may be doubled. Criminal court, have jurisdiction. courts can also order destruction of the Further, Law 2014-315 makes the statute infringing goods, as well as publication of of limitations for all IP rights infringement the judgment as a supplementary measure. claims five years, which is the same as the Customs penalties may also be added to civil law statute of limitations. Securing evidence of the infringement and of its negative economic consequences at an early stage often
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