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Monday, 15 June 2015

The Loi Hamon: France sets new standards for industrial and artisanal GIs

Geographical indications (GIs) have been much in the news recently, following the recent successful outcome of the Geneva diplomatic conference on the revision of the Lisbon Agreement on Appellations of Origin and Geographical Indications [on which see earlier Katpost here]. There's further news now, coming from France, where an Implementing Decree for the 2014 Loi Hamon was issued last week. Katfriend Marie-Gabrielle Plasseraud has prepared a short comment on this development which, she explains, has an impact not only on GIs but also on French trade mark practice. This is what she writes:
The recent implementation of French industrial and artisanal GIs

On 2 June the French government issued Decree No. 2015-595 on industrial and artisanal geographical indications and relative to trade mark aspects, enacted under Article 73 of the Consumer Protection Law No. 2014-344 (the so-called Loi Hamon) of 17 March 2014.

Background: creation of a new French GI

The aim of the Loi Hamon is not only to enhance consumer protection and information but to promote the development of French territories as well as local know-how and traditions. Since it broadens the scope of protected French GIs to non-agricultural products and non-foodstuffs, French handicrafts such as Limoges porcelain and the Basque béret could now enjoy specific protection. This law was enacted in the midst of a highly publicised legal dispute over the name ‘Laguiole’ between the village of Laguiole and the owner of a portfolio of ‘Laguiole’ trade marks: see General Court Case T-453/11, Szajner v OHMI / Forge de Laguiole, 21 October 2014 (discussed here on this weblog); and also the Paris Court of Appeal decision of 4 April 2014.  

The Loi Hamon indeed creates a new section in the French Intellectual Property Code (‘IPC’), this being Articles L. 721-2 et seq. which are dedicated to industrial and artisanal GIs, defined as follows:

“An indication of origin shall consist of the name of a geographical area or of a specific place used to designate a product – other than agricultural, forestry, food or seafood products – which originates from such area and which possesses a given quality, a reputation or other characteristics attributable mainly to this geographical origin.” 
Like protected appellations of origin and protected GIs for agricultural products and foodstuffs (Article L. 641-10 et seq. of the French Rural and Maritime Fishing Code), the newly created industrial and artisanal GIs constitute prior rights that can oppose to trade mark applications (Article L. 711-4 d) IPC).

The provisions of the 2 June 2015 Decree

The Decree provides that the French National Institute of Intellectual Property (‘INPI’) will be the competent authority concerning these industrial and artisanal GIs, unlike protected appellations of origin and protected GIs for agricultural products and foodstuffs which are regulated by another public authority, the National Institute of Origin and Quality.

The certification application
The Decree contains provisions regarding (i) INPI's certification procedure (examination of the specification, organisation of a public inquiry and consultation); (ii) the definition of the role of the organization in charge of the defence and management of industrial and artisanal GIs; (iii) the conditions under which a trade mark opposition may be filed by industrial and artisanal GI holders as well as local collectivities (‘collectivités territoriales’).

The certification application has to be filed by a private organization with legal personality in charge of the defence and management of the industrial and artisanal GI at issue (‘organisme de gestion et de defense’). The specification of the application will have to contain information such as the name of the product, the definition of the geographical area, the quality, the reputation or the characteristics attributable to the geographical origin, the production process and the control system. Such applications can be filed online with INPI and over 200 applications are expected in the coming months according to a recent survey.

Following INPI's examination, the certification application will be published simultaneously in the French Bulletin of Intellectual Property (‘BOPI’) and in the Official Journal of the French Republic (‘JO’). This publication opens a two month period of public inquiry and consultation, further to the new Article R. 721-3 IPC. If the GI is registered following this process, the product may be marked with the logo on the left.

 * Opposition procedure - new relative grounds 
Under the Loi Hamon, a French trade mark application or an International registration designating France can now be challenged on new relative grounds, i.e. that there exists an industrial and artisanal GI or the name of a local collectivity.

As far as an opposition based on a prior industrial and artisanal GI is concerned, the Decree provides that the opposition may be filed by either: (i) the organization in charge of the defense and management of the industrial and artisanal GI (under examination or registered); or (ii) a local collectivity if industrial and artisanal GI at issue is contained in the name of the local collectivity.

As far as an opposition based on the name of a local collectivity is concerned, it may be filed by a local collectivity if the trade mark application adversely affects the name, the image or the reputation of such collectivity. In this respect, the Loi Hamon provides for a special trade mark watch service for local collectivities, but no implementing Decree has yet been issued. 
A possible extension of EU GI protection to non-agricultural products?

After inventing GIs in the first half of the 20th century, will France play a pioneering role and influence the evolution of European protection of GIs? The European Commission conducted a public consultation on the subject in 2014 (see draft report of 21 April 2015) which clearly shows some interest in industrial and artisanal GIs on a European level.

Given the fact that these industrial and artisanal GIs constitute prior rights under French law, trade mark practitioners should watch out for this new type of GI when conducting prior right searches in France and when filing French trade marks (or International registrations designating France).

1 comment:

Francisco Ripoll said...

Thank you for this interesting post and for informing about such an innovative legislative development. We will see if countries with important GI's concerns like Italy or Spain follow this initiative to enhance the protection of their own industrial and artisanal sectors.

Furthermore, note that not only will these rights affect future French trade marks or International registrations designating France, but also CTMs. Indeed, article 8.4 of the CTM Regulation provides that prior national rights such as GIs may constitue relative grounds for the refusal of CTM applications. Therefore, these French industrial and artisanal GIs should also be watched by trade mark practitioners when filing a CTM.

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