French Intellectual Property Law
Overview of French Intellectual Property Law
French intellectual property law is codified in the Intellectual Property Code (Code de la propriété intellectuelle — CPI), a comprehensive legislative instrument enacted in 1992 that consolidated all prior IP statutes. The CPI is divided into two principal parts: literary and artistic property (droit d’auteur and neighbouring rights) and industrial property (patents, trade marks, designs, and geographical indications). The National Institute of Industrial Property (Institut National de la Propriété Industrielle — INPI), a public administrative authority under the Ministry of Economy, administers patents, trade marks, and designs. French law reflects the civilian tradition’s author-centric approach to copyright and the harmonised European framework for industrial property.
Patent Law
Patentability Requirements
French patent law is codified in Articles L611-10 to L611-25 CPI. An invention is patentable if it is novel, involves an inventive step (activité inventive), and is susceptible of industrial application (application industrielle). These requirements, implemented under the European Patent Convention, are interpreted consistently with EPO jurisprudence. Novelty under Article L611-11 means the invention is not comprised in the state of the art, which includes everything made available to the public by written or oral description, use, or any other means before the filing date. Inventive step requires that the invention not be obvious to a person skilled in the art. Industrial application means the invention may be made or used in any kind of industry, including agriculture.
Patent Application and Examination
Patent applications are filed with the INPI, which conducts formal examination, search, and publication. The application must contain a description, claims, drawings where necessary, and an abstract. The INPI performs a prior art search and issues a search report (rapport de recherche) together with a preliminary opinion on patentability. Unlike the European Patent Office, the INPI does not conduct substantive examination of inventive step; the search report provides third parties with information to challenge validity. The patent is granted if it meets formal requirements and no objection is raised.
Brevet d’Invention and Certificat d’Utilité
The standard patent (brevet d’invention) has a term of 20 years from the filing date. The certificate of utility (certificat d’utilité), introduced to provide an expedited and lower-cost protection mechanism, has a term of 10 years without substantive examination or prior art search.
Employee Inventions
Employee inventions are governed by Articles L611-7 to L611-8 CPI. Inventions made by an employee in the execution of an employment contract that includes an inventive mission (mission inventive) belong to the employer. Inventions made outside the scope of employment but using the employer’s means or knowledge may be claimed by the employer upon payment of fair compensation.
Infringement (Contrefaçon)
Patent infringement (contrefaçon) under Articles L613-25 to L615-21 CPI gives rise to civil claims for injunctive relief (interdiction), damages (dommages et intérêts), and recall and destruction of infringing goods. The saisie-contrefaçon procedure under Article L615-5 permits the patentee to obtain an order from the President of the Regional Court (Tribunal judiciaire) authorising a detailed description or actual seizure of allegedly infringing goods and related documents, a powerful investigative tool. The specialised patent chambers of the Paris Regional Court and other designated courts have exclusive jurisdiction over patent disputes.
Copyright Law (Droit d’Auteur)
The Intellectual Property Code — Part I
French copyright law, codified in Articles L111-1 to L335-4 CPI, is the paradigmatic example of the droit d’auteur tradition. Protection extends to works of the mind (œuvres de l’esprit) of any type, including books, musical compositions, films, photographs, software, and works of applied art.
Originality
The requirement of originality is the imprint of the author’s personality (empreinte de la personnalité de l’auteur), a standard established by French jurisprudence and maintained after EU harmonisation. The CJEU decision in Infopaq (C-5/08) adopted the author’s own intellectual creation test, which the French courts have applied consistently with the existing personality-based approach.
Moral Rights (Droits Moraux)
The moral rights under Articles L121-1 to L121-9 CPI are perpetual (perpétuels), inalienable (inaliénables), and imprescriptible (imprescriptibles). They comprise: the right of attribution (droit à la paternité), the right of respect (droit au respect de l’œuvre), the right of disclosure (droit de divulgation), and the right of withdrawal (droit de retrait). The right of respect entitles the author to object to any modification or distortion of the work. The inalienability means moral rights cannot be transferred inter vivos, though they pass to heirs upon death.
Economic Rights (Droits Patrimoniaux)
The economic rights under Articles L122-1 to L122-12 CPI include the right of reproduction (droit de reproduction) and the right of performance (droit de représentation), the latter encompassing public performance, broadcasting, and making available on demand. These rights may be assigned or licensed, subject to strict formal requirements including a written contract specifying the scope, duration, and remuneration.
Term
The general term is life of the author plus 70 years, as established by the Law of 13 March 1997 implementing the Term Directive. For musical works with lyrics and music by different authors, separate terms may apply. Special provisions extend the term for works by authors who died in active service (mort pour la France).
Exceptions
The exceptions under Articles L122-5 to L122-10 CPI include private copying (copie privée), parody and pastiche, quotation (citations) for critical, educational, and scientific purposes, and use for educational and research purposes. The private copying exception is subject to fair compensation through a statutory levy system administered by the Private Copying Commission (Commission de la copie privée).
Neighbouring Rights (Droits Voisins)
The neighbouring rights under Articles L211-1 to L216-1 CPI protect performers (artistes-interprètes), phonogram producers, audiovisual producers, and broadcasting organisations. These rights include the right of fixation, reproduction, and communication to the public. The Law of 1 August 2006 and subsequent amendments have strengthened these protections, particularly following the implementation of Directive 2019/790 on copyright in the Digital Single Market.
Trade Mark Law
Registration and Protection
French trade mark law is codified in Articles L711-1 to L731-2 CPI. Eligible signs include words, designs, letters, numerals, colours, sounds, holograms, and multimedia marks. Registration with the INPI confers protection. The distinctiveness requirement under Article L711-2 excludes descriptive, generic, and customary signs.
Absolute and Relative Grounds
Absolute grounds for refusal under Article L711-2 include marks devoid of distinctive character, descriptive marks, and marks contrary to public policy or morality. Relative grounds under Article L712-4 include conflicts with earlier marks, well-known marks (marques notoires), and earlier rights in company names or trade names.
Well-Known Marks
The protection of well-known marks (marques notoires) under Article L715-4 CPI implements Article 6bis of the Paris Convention, providing protection for marks that are well known in France even without registration.
Opposition and Term
The opposition procedure (opposition) under Article L712-4 allows holders of earlier rights to oppose registration within two months of publication. The term of registration is 10 years, renewable indefinitely upon payment of renewal fees. Non-use for five consecutive years renders the mark vulnerable to cancellation.
Geographical Indications
France has a sophisticated system for protecting geographical indications. The appellations d’origine contrôlée (AOC) system, administered by the National Institute of Origin and Quality (INAO), protects agricultural products, wines, and spirits. The protection of geographical indications under Articles L721-1 to L721-10 CPI and the Consumer Code provides a model for the EU’s Protected Designation of Origin (PDO) and Protected Geographical Indication (PGI) systems.