France's new consumer affairs laws
Among the law’s new provisions, class action is one of the key measures as it allows consumers, via their representatives (such as consumer associations), to take legal action collectively to assert their rights and obtain damages for all of them in one single proceeding. In the past each consumer had to take action individually to receive damages.
Chapter IV of the March 2014 law concerns geographical indications (GIs) and protection of the names of regional territories. Articles 73 to 75 of this chapter modify several provisions of the Intellectual Property Code (IPC) and create GIs which protect industrial and craft products (new Articles L721-2 to L721-10 IPC).
While EU law provides a harmonised system for the protection of GIs, it concerns agricultural food products only (European Regulations no. 1151/2012, 491/2009 and 110/2008). The French legislature has now set up a system of protection with the creation of GIs for industrial and craft products, very similar to the one in place for food products.
The definition of the new GI provided in Article L721-2 does not differ from the international definition of GI provided in Article 22(1) of the WTO TRIPS Agreement.
The conditions for acknowledgement of a GI are almost identical to those for a GI for food products. In addition to the need for a link to the geographical place of origin, producers have to respect strict specifications for production and/or processing (Article L721-2 and L721-7 IPC). These specifications are adopted by an Organisation for Defence and Management, which represents the producers (Article L721-6) and they must be approved by the French patent and trademark office (Article L721-3). One difference from the system of protection of GIs for food products is that the new GIs will be administered exclusively by the French patent office and not by the National Institute for Designations of Origin.
Some controls will be in place for accredited bodies to check that those who use GIs respect the specifications (Article L721-9).
The protection for a GI is provided by Article L721-8, which is almost identical to Article 13 of EU Regulation no 1151/2012: GIs are protected against any direct or indirect commercial use by products that do not qualify for the GI or when its use allows other products to benefit from the reputation of the protected name. The GI is also protected against any misuse, imitation or evocation of the protected name or any other false or misleading indication, and against any other practice liable to mislead the consumer as to the true origin of the product.
Further substantial changes to the IPC
The law also modifies some provisions of the IPC in order to reinforce the legal protection for GIs and regional names. GIs are added in Article L711-4(d) to the list of prior rights that can serve as grounds for cancellation action against a trademark.
New Article L112-2-1 also allows for regional territories to be automatically informed by the French patent office of trademark applications that are made up (or at least, partly made up) of their protected names or contain names of local territories that are located within their geographical territory. This provision should lead regional territories to file observations or oppositions against the registration of such trademarks more often. However, one might ask whether this new provision will be effective, as the French patent office is not used to examining prior rights during the examination procedure.
"In addition to the need for a link to the geographical place of origin, producers have to respect strict specifications for production and/or processing."
Furthermore, following the modification of Article L712-4, two more groups are now entitled to oppose: first, the regional authorities affected by contested trademarks that relate to their name, image or reputation, or by a GI that includes the name of the regional territory concerned; and second, Organisations for Defence and Management that have a GI officially approved (or about to be approved).
This provision, while protecting GIs and the names of regional territories, entitles regional territories to oppose; other IP right owners (copyright owners, for instance) are not entitled to do so. By contrast, today, in France, the only ground for opposing is a prior trademark.
This new system of protection for industrial and craft products, like the one that already exists for food products, represents an attempt by France to enhance the importance of the origin of goods for the French consumer and to protect French manufacturers.
Aurélia Marie is a partner at Cabinet Beau de Loménie. She can be contacted at: amarie@bdl-ip.com
