Infringement of a French design : application of the new law
26.11.2002
The Ordonnance n° 2001-670 of July 25, 2001, in force on July 30, 2001, modified the criterias allowing the appreciation of the validity of a French design and the infringement thereof.
The Ordonnance n° 2001-670 of July 25, 2001, in force on July 30, 2001, modified the criterias allowing the appreciation of the validity of a French design and the infringement thereof.Indeed, according to the new law, a design must be new and have a proper character to be valid.The proper character of the design is appreciated through the "overall visual impression it makes on the informed observant" in comparison to every design disclosed before the date of the filing or of the priority (and not only registered or created).Some first instance courts and courts of appeal already started to apply the new criterias, for example in the following case : TGI Paris - February 15, 2002The factsMs F. is holder of a design of an extra table, filed on April 15, 1997. An "enveloppe Soleau" was also filed on September 27, 1996.She has conducted a seizure-infringement and sued Company H. for infringement on February 22, 2001 on the base of copyright and design right.The table of Mrs F. is an extra table in the form of a set of shelves, its characteristics being as follows :- superimposition of 5 rectangular surfaces of laying ;- the surfaces being connected one wih another by 4 parallel sides ;- the overall form being the one of 5 zigzags or of 2 superimposed S.Protection according to the copyrightNoveltyCompany H. presented several designs of tables which were disclosed prior the filing date.However, none of these anteriorities was a design identical to the table design. Thus, none could be considered as a whole anteriority.The design is thus novel.Proper characterAccording to the First Instance Court (TGI) of Paris, the informed observant "is a user having not a mean attention but a particular vigilance, due to his professional experience or to his wide knowledge of the considered domain".The TGI notes that the anteriorities cited by Company H. are of Scandinavian type, having purified lines, successive surfaces, but no overall form in two S.For the informed observant, the overall impression of the piece of furniture of Mrs F. does not appear in any of the cited anteriorities and gives it a proper character. The table is thus protected according to the design right.InfringementThe table commercialized by Company H. has then been studied with regard to the protected design. According to the TGI, "even if a table is also of the Scandinavian type and if it uses known elements from this style, it differs noticeably from the protected table and does not give an overall impression such that the buyer of the table will think that it is a table commercialized by Mrs F.".Indeed, this table "presents a form of stylized S and not of a zigzag, it is not composed of five surfaces but of three, which are square and not rectangular, this giving to the whole a lighter aspect" according to the TGI.Therefore, the design is not infringed.CopyrightThe table was considered as having the mark of the personality of its creator. It is thus protectable according to the copyright.However, the TGI has also considered that the overall impression of the table of Company H. cannot be mistaken from the one of Mrs. F.'s table.Therefore, the table is also not infringed according to the copyright.
