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Novelty and proper character

The French Design Law has been modified by the Ordinance No 2001-670 of July 25, 2001, with regard to Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998.

According to Articles L. 511-1 to L. 511-8, "A design shall be protected by a design right to the extent that it is new and has proper character".

Novelty

According to the new French Law, the novelty is studied at the filing date or at the priority date, but no more at the creation date. According to Article L. 511-6, a prior design shall be deemed to have been made available to the public if it has been published, used or otherwise disclosed. However, there is no disclosure when the design could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the European Community, before the date of filing of the application for registration or, if priority is claimed, the date of priority, and the design shall not be deemed to have been made available to the public for the sole reason that it has been disclosed to a third person under explicit or implicit conditions of confidentiality.

Theoretically, one should proceed to a complete anteriorities search, with no time nor space limit, within all the models, shapes or motifs existing in the world prior to the filing. Such a search is impossible in the practice. However, this search can always be envisaged in order to have knowledge of the anteriorities, to avoid a questionable filing or to avoid being a counterfeiter.

According to Article L. 511-6, if the disclosure has been made during the 12-month period of grace preceding the date of filing of the application or, if priority is claimed, the date of priority, it shall not be taken into consideration :

a) if the design has been made available to the public by the designer, his successor in title, or a third person as a result of information provided or action taken by the designer, or his successor in title;

b) or if the design has been made available to the public as a consequence of an abuse in relation to the designer or his successor in title.

Proper character

According to Article L. 511-4, " A design shall be considered to have proper character if the overall impression it produces on the informed observant differs from the overall impression produced on such a user by any design which has been made available to the public before the date of filing of the application for registration or, if priority is claimed, the date of priority. In assessing proper character, the degree of freedom of the designer in developing the design shall be taken into consideration."

As there is no examination for registering a design in France, it is only in case of a suit that the validity will be evaluated, concerning novelty and proper character.

Term of protection

The protection of a design is of 5 years from the date of filing. The term of protection may be renewed by periods of five years up to a total term of 25 years from the date of filing.

Certificate

The certificate of registration and publication is sent by the French Design Office about 6 months after the filing, depending on the delay at the Office.