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New factors established by the Law of 11th March 2014 in the fight against counterfeit and infringement

By Vanessa Bouchara - Expertise Blog

Reinforcing the importance of the fight against counterfeit and infringement, the new Law n° 2014-315 of March 2014 aims to strengthen the provisions of the Law of 29th October 2007 relating to intellectual property rights by offering owners of rights more effective means to combat counterfeiting whether this be in the form of authors’ rights, trademarks, patents, plant variety rights or geographical indications for agricultural products.

The Law includes a number of new provisions which aim to better evaluate the loss or harm suffered.

I. The main idea of the new Law: rules for fixing damage and reparation

The goal of the new Law is to improve the level of compensation available to rights holders following an established infringement.

The 2007 Law indicated that the following should be taken into consideration:

  • The negative economic consequences of the undermining of rights, including the loss of earnings endured by the injured party.
  • The profits gained by the infringing party.
  • The moral loss suffered by the rights holder because of the infringement.

The 2014 Law specifies that in order to determine the level of reparation due, the court must take into consideration the circumstances of each loss suffered separately.

II. The tools enabling a precise evaluation of the infringement

To this end, the legislator makes it clear which tools are at their disposal to evaluate the damages due for the loss and infringement that they have suffered:

1) Simplifying the procedure for right to information

The right to information is one of the major provisions of the 2007 Law that allows a rights holder to request a judge to transmit information on the origin, distribution channels and the amount of sales of the alleged counterfeited products, and to accurately evaluate the harm suffered.

However, the extent of this right was somewhat blurry. The 2014 therefore offers clarification on it.

2) Greater powers for Customs

Customs are now competent to handle issues relating to merchandise in transit which may be the subject of investigation or litigation.

The new Law gives them a wider scope of powers and a wider array of products within their competence relating to imports, exports and shipping.

3) Clarifying the procedure for seizure of counterfeit

The 2007 Law gave authority to court-ordered bailiffs, police officers and trial judges to proceed with acts of seizure of counterfeit items. However, these latter two were rarely called upon.

Therefore, in order to be adequately in line with procedure, the 2014 Law now calls gives court bailiffs exclusive competence over the seizure of counterfeited objects.

4) Extending the period of prescription

The 2014 Law provides for a longer limitation period for a victim of patent or trademark infringement to bring an action, therefore allowing for a greater enjoyment and exercise of their rights.

The period of prescription for bringing an action is now 5 years.

The 2014 Law therefore offers rights holders enhanced rights and allows them to better evaluate the options available to them when they are the victims of an infringement.

Having a better evaluation of the losses suffered will allow the court to set more precise and certainly heavier fines for violations. That being said, determining the losses in the first place remains of crucial importance.

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