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The Various Legal Protection of Design in France

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The various legal protections of design in France

Content Intellectual Property Rights in France 3 Introduction 3 I. Copyrights 3 II. Design Law 4 III. Design Patents 4 IV. Trademarks 5 V. How to obtain protection for a design in France? 5 Conclusion 6 References 7

Intellectual Property Rights in France

Writing assignment: France is considered as a country where designs are particularly well protected by law. Explain the various legal protections of design in France. (1500 words)

Introduction

Currently the fashion industry is one of the most important industries in the world. In fact, the fashion business industry represents in the world more than a billion dollar industry with big groups like LVMH and we can emphasize the fact that this industry has no real geographical boundaries. However the legislations to protect designs are different from a country to another one. Today it exists many designers who have their personalized style and are distinctive from each other. Moreover, consumers are able to recognize the different styles and brands offered by these unique designers. The protection of designs varies according the countries and their legalizations, and France is considered as a country where designs are particularly well protected by law.
This essay develops the various legal protections of design in France. Copyright, design rights, design patents and trademarks can protect fashion goods in France.

I. Copyrights

France’s system of copyright protects any “original work of the mind” because it reflects the personality and the creative mind of their author. According to the French Intellectual Property Code (IPC), any original work can be copyrighted without registration, by the unique fact of its creation. It is important to underline that copyright protects the original and creative aspects of products and not their functional aspects. However, the current difficulty is to demonstrate this original and unique character. In fact, fashion items follow the various trend styles and most of offered products are similar in the market, and don’t demonstrate enough originality that provides a unique character. That’s why many designs are still not protected due to a lack of originality. The following examples of work could be protected by copyrights: writings, musical compositions, fashion shows, designs, photographic works etc. So we could deduct that the scope of copyright protection in France is quite broad.
The French copyright requirements differ from those in the United States. In fact, in US copyright can’t protect ideas and concepts, which are just in the mind of the creator, if they are not fixed in a tangible way. In France for example, garment designs and fashion creations, which include dressmaking, fabrics, jewellery, accessories and many others are protected under the French copyright law. In fact, copyright protection is a way for fashion designers to come up with new ideas, protect them against the rivalry and promote innovation and creativity in the fashion industry.

II. Design Law

Design Law protects the appearance of goods or services. In this case products are described as functional with an aesthetic shape. However ideas or styles, which are not materialized and tangible, are not protectable. In order to be protected a design has to be “new” and have an “individual character”. Moreover, in order to be valid it has to be registered. A design is new when no previous identical design exists already: it is the novelty requirement. If the design does not follow these requirements, it could be protected by Copyright but not by Design Law. But it exists also designs that are not protected under Design Law even though they have the “novelty” and the “individual character” requirements. For example the characteristics of a product’s appearance, which are only related to its technical functions (like a belt buckle) is not protectable. However, Patents Law, and particularly utility patent may protect this kind of product.
It is important to emphasize that new creations could benefit from two different intellectual property rights: copyright as well design. As a result, to accumulate these rights many decisions have mixed two conditions: the condition of novelty and the one of originality. For example a model of shoes can be original but also new, with an individual character because no previous identical models have been discovered before to the public. And this good may produce a new impression on the customer’s mind, which differs from other items discovered on the same time in the market. Currently, some stricter rules have been imposed in order to define more precisely the “original” and “new character” of a design creation because this combination of rights is very subtle and often misunderstood. Indeed, there is an effort to distinguish copyright than design protection. For example the protection of a creation may be refused under copyright law but accepted as a valid design.

III. Design Patents

The French patent law protects both invention and utility certificate. The patent is granted for duration of 20 years whereas the utility certificate is granted for 6 years. The patent application must contain a description of the invention and must define the scope of the protection. In order to describe the invention it is possible to add some drawings. Moreover, the description must be in French.
The French Patent Office can reject some application for the following formal reasons: * If the application contains one or several inventions, which form a group of inventions don’t related together. * If the patent application defines more an intellectual and a mathematical method correlated to medicine discovery for example than an invention.

IV. Trademarks

Trademarks are frequently used to protect brands and products from competitors in the fashion industry. To be valid trademarks have to be distinctive and distinguishable and not describe the product’s characteristics. A trademark is a sign that makes a good or a service unique and allows it to be distinguishable from its competitors, which offer other similar products. The protection allowed under Trademarks causes often confusions or mistakes in the mind of the customer, in this case we speak about copyright infringements. The duration of this protection is endless, that is mean as long as qualified use continues.
One recent example concerns the famous and beautiful red sole Louboutin, which is protected since 2000 in France. The brand Zara decided to sell shoes with red soles, as Louboutin is selling. As well Louboutin decided to publish a claim against Zara, based on trademark infringement. In 2011, the Paris Court of Appeal rejected Louboutin’s claim and annulled its trademark because the form and the colours of the trademark application was not enough clear, and these signs were not considered as a right way to distinguish and identify clearly the origin and the uniqueness of the shoes. The French Supreme Court has confirmed this analysis in 2012. By this example we understand why it exists many debates and cases of copyright infringements in the fashion industry. Moreover it still primordial to protect new products and discoveries under the right protection in order to avoid problems with the rivalry.

V. How to obtain protection for a design in France?

In order to obtain protection in France, designers have to submit a design application in the Institut National de la Propriété Industrielle (INPI). 
One application can include different designs if they are registered under the same “class”. Then some 
reproductions are created to define the scope of the protection, and all the elements that are not represented on these reproductions will not be protected.
The applicant is generally presumed to be the owner of the rights and he has an exclusive right to use it. That is mean he can allocate his rights in the design to another person and also grants license agreements for example. A transfer concerning a registered design to be valid between the parties must be made public but does not need to be registered in the INPI.
Registered Designs in the INPI are protected for a period of five years and this period could be extended four times. So the maximum life of protection is for 25 years.

Conclusion

To conclude, France is considered nowadays as a country where designs are particularly well protected by law. Moreover we could underline that design protection has always played an important role at the European level. In fact, since 1950, the goals of harmonize laws and create a similar form of protection at a Community level were one of the priorities for Europeans. That is why, in 1998 and then in 2001 the European Union passed a Design Directive and a Design Regulation in order to reach this goal.

References

Web site:

The Fashion Law. 2014. The Fashion Law. [ONLINE] Available at: http://www.thefashionlaw.com. [Accessed 14 April 2014].

Accueil | Légifrance, le service public de l'accès au droit - Accueil. 2014. Accueil | Légifrance, le service public de l'accès au droit - Accueil. [ONLINE] Available at: http://www.Legifrance.gouv.fr. [Accessed 14 April 2014].

Centre for Intellectual Property and Information Law - Centre for Intellectual Property & Information Law. 2014. Centre for Intellectual Property and Information Law - Centre for Intellectual Property & Information Law. [ONLINE] Available at: http://www.cipil.law.cam.ac.uk. [Accessed 14 April 2014].

Katrina M. Klatka. 2006. The New Trend in Copyright Law. [ONLINE] Available at: http://www.hahnloeser.com. [Accessed 14 April 14].

Ladas & Parry - Intellectual Property Law. 2014. Ladas & Parry - Intellectual Property Law. [ONLINE] Available at: http://www.ladas.com. [Accessed 14 April 2014].

Books:

Guillermo C. Jimenez, 2009. Fashion Law: A Guide for Designers, Fashion Executives and Attorneys. 1 Edition. Fairchild Books.

--------------------------------------------
[ 1 ]. Fashion Law, a guide for designers, Fashion executives and Attorneys, Guillermo C.Jimenez & Barbara Kolsun

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