Category: Legal news

The second lockdown has forced the government to strengthen emergency and support measures for companies. These exceptional measures complement the specific sectoral and regional aid already put in place to deal with the economic slowdown of businesses, weakened by the pandemic’s first wave.

1. A widen Solidarity Fund

Businesses with less than 50 employees that are administratively closed due to lockdown will receive up to €10,000 per month in aid to make up for their loss of turnover. Depending on their sector of activity, businesses that remain open but suffering a loss of more than 50% of their turnover may also receive a State allocation between €1,500 and €10,000 per month.

2. Exemption and deferral of social security contributions

Companies with less than 50 employees that are administratively closed due to lockdown may benefit from (i) a total exemption of employers’ social security contributions and (ii) an aid for the payment of social security contributions of 20% of the total payroll. Other employers may request a payment deferment of their contributions for all November 2020 deadlines. Social contributions for the self-employed will not be collected for the month of November.

3. Tax credit for commercial landlords

In order to reduce rents, a tax credit for commercial landlords will be implemented for owners who waive the right to receive payment of rent for at least one month’s rent between October and December 2020. The reduction will represent 30% of the amount of rent waived.

4. The extension of the exceptional Partial Business Activity Regime

The furlough scheme has been extended until December 31, 2020. No remaining amount will be due by the employer of protected sectors (tourism, events, culture, sport) or those subject to administrative closures due to the lockdown. Employees will be paid 84% of their net salary.

5. Strengthening of State-guaranteed loans

The State-guaranteed loan regime is extended from December 31, 2020 to June 30, 2021. Amortization of said loans may be spread over up to 5 additional years, with rates for SMEs ranging from 1 to 2.5%. The State will also be able to grant direct loans to VSE/SMEs that have not been able to obtain a State-guaranteed loan.

Antoine Rousseau, Partner.

On September 17th, 2020, the French Data Protection Authority (also known as the “CNIL”) adopted two documents on cookies, namely guidelines (Deliberation No. 2020-091 of September 17th, 2020 adopting guidelines relating to the application of Article 82 of the Law of January 6th, 1978 as amended to reading and writing operations in a user’s terminal (in particular “cookies and other trackers”) and repealing Deliberation No. 2019-093 of July 4th, 2019) and a recommendation (Deliberation No. 2020-092 of September 17th, 2020 adopting a recommendation proposing practical methods for compliance in the event that “cookies and other trackers” are used).

Through these new deliberations published on October 1st, the French data protection authority (DPA) confirms certain major principles:

o Concerning user consent:

– The mere continuation of navigation on a website can no longer be considered as a valid expression of consent,

– Individuals must consent to the deposit of trackers by a clear positive act (click on “I accept” in a cookie banner, for example). If they do not do so, no tracker that is not essential to the operation of the service may be deposited on their device.

o Users must be able to withdraw their consent easily and at any time,

o Refusing trackers should be as easy as accepting them,

o Concerning the information of data subjects:

– They must be clearly informed of the purposes of the trackers before consenting, as well as the consequences of accepting or refusing trackers,

– They must also be informed of the identity of all actors using trackers subject to consent.

o Entities using trackers must be able to provide, at any time, proof of valid collection of the freely given, informed, specific and unambiguous consent of the user.

Regarding “cookie walls”, which consist of blocking access to a website if cookies are refused, the French DPA has prudently taken into account the decision of the “Conseil d’Etat” dated on June 19th, 2020. Thus, without directly recognising a lawfulness in principle of this practice, the French DPA considers that a case-by-case analysis will be necessary.

Nevertheless, certain trackers are exempt from the requirement of obtaining consent. This is notably the case for trackers intended for authentication with a service, those intended to store the contents of a shopping basket on an online shopping site, those intended to generate frequentation statistics, or those allowing paying websites to limit free access to a sample of content requested by users.

In addition, the French DPA makes several recommendations to the players concerned:

• Two buttons should be provided: “accept all” and “refuse all”,

• Websites, which usually retain consent to trackers for a certain period, should also retain the refusal of Internet users for a certain period. In this respect, the French DPA considers that it is good practice for website publishers to keep the choice (refusal or consent) for a period of 6 months,

• When the trackers allow tracking on other websites, consent must be obtained on each of the websites concerned by this navigation tracking.

The time allowed for the concerned actors to comply with the new rules must not exceed 6 months, i.e. by the end of March 2021 at the latest.

The French DPA will consider the operational difficulties of the economic players during this period and will give priority to support rather than control. However, it reserves the right to prosecute certain breaches, particularly in the event of a particularly serious breach of the right to privacy, and will continue to prosecute breaches of the rules on cookies prior to the entry into force of the GDPR (recommendation of December 5th, 2013).

As a reminder, this communication comes at a time when the e-Privacy Regulation, a specific regulation that has been postponed several times since 2016 and which will aim to apply the principles resulting from the GDPR to electronic communications, has still not been adopted by the European Commission.

The lawyers of Alerion’s Data Privacy and Digital and technology law departments assist the economic players who will have to embark on a new project to comply with the GDPR regarding cookies and other trackers.

Corinne Thiérache, Partner and Alice Marie, Legal Counsel.

With the help of Morgane Sapin, Student Lawyer at the ECOA.

These days, digitalization is essential for any company wishing to offer its products and/or services to the public. The current health crisis stimulates an increasing digitalization. However, it requires a legal support.

Rule # 1: You shall contractually supervise the IT developments of a third party

The use of an IT service provider for the digitalization of its products and services requires special attention on several points.

In particular, you shall:

Define specifications : It must specify the general context of the project of creation of the Internet site and/or the application as well as the technical specifications of the considered IT developments, in order to answer the exact needs of the customer;

Establish a schedule : Mandatory dates can be set, and their non-respect will be sanctioned by the application of financial penalties to the service provider ;

Set up a steering committee : Periodic validation of the services by the client allows the latter to check the conformity of the services with the specifications, and if necessary, to request corrections and report on the progress of the project;

Supervise the validation of the IT developments : The reception of a deliverable from the service provider, whether it is a hardware, a software solution or a study document, must be organized. The scope and breakdown of the acceptance, as well as the production of an acceptance report with potential reservations, must be specified;

Decide about the maintenance issue : A choice with different implications has to be made between maintenance carried out by the main service provider, a third party or your care ;

Pay attention to the limitation of liability clause : The IT service provider tries by this means to limit his responsibility by introducing a ceiling for compensation often equal to the amount of the sums paid by the customer. In this context, it is important to negotiate a liability arrangement that is proportionate to the economic data of the project in question. The clause must, however, represent sufficient financial pressure to induce the service provider to satisfy its customer ;

Include a confidentiality clause to protect your innovations : The scope of such a contractual clause is essential and must be negotiated, in particular what is covered by confidentiality, the duration of the clause. Moreover, this clause shall ensure that there is no breach of confidentiality in the event of subcontracting.

Rule # 2: You shall check the assignment of the intellectual property rights of the digitalization project to your benefit

An e-commerce website implies the registration of a domain name (or several), as well as the registration of an available trademark which geographical protection will depend on the nature of the project.

Whether you resort to a third party or to an employee to help you to digitize your activity and/or to create/improve your visual identity within the framework of this digitalization, it is advisable not to forget to make sure of the assignment to your benefit of the intellectual property rights protecting the resulting creations.

Contrary to preconceived ideas, the situations in French law in which the assignment of intellectual property rights is automatic without any formality are quite rare and in reality only concern software and collective works created within the framework of an employment contract. In most cases, it is necessary to expressly provide for the assignment of the property rights of the creations, which must comply with a strict formalism.

Rule # 3: You shall anticipate the personal data collection and the compliance of processing operations

The General Data Protection Regulation (GDPR) imposes numerous obligations on the website operator that collects and processes personal data via cookies and/or online forms.

In addition to keeping a register, the data controller will in particular have to provide certain information to the data subjects beforehand (purposes of the processing, legal bases, duration of data retention, identity of the data controller, rights of the persons whose data are collected, recipients of the data, transfer of the data outside the European Union, etc.). A privacy policy allows all of this information to be included in addition to the specific informative mentions appearing on data collection forms or in newsletters.

Rule # 4: You shall fulfil the e-commerce’s duties

E-commerce is governed by a certain number of restrictive rules that must be taken into account as soon as the design of sites or applications is completed (legal notices allowing the identification of the website operator, information specific to distance contracts, purchasing and browsing processes adapted to the delivery of this information, etc.).

Within the framework of relations between professionals and consumers (B to C), professionals must provide specific information, in particular regarding possible delivery restrictions, the conditions for implementing the right of withdrawal and the costs relating to the exercise of this right, which are most often set out in General Terms and Conditions of Sale.

Rule # 5: You shall preserve your e-reputation

It is recommended that you monitor the name of your company or site on search engines, especially Google. This monitoring allows you to stay informed of what is said about your company, your products, your services, your management style, or your customer service.

It is advisable that you respond quickly to negative reviews before they become problematic and too visible. Also, you should request the removal of false reviews that harm your e-reputation if you can do so.

The teams of the Intellectual Property, Digital and Technology Law, and Data Privacy departments are at your disposal to discuss your digitalization projects and provide useful advice at all stages and on all aspects of these projects.

Corinne Thiérache, Partner and Carole Bui, Attorneys at the Paris Bar.

Thanks to Morgane Sapin, Student lawyer.

The Court of Justice of the European Union (CJEU) ruled on June 4, 2020 that a person who sells goods in the name and on behalf of his principal does not necessarily need to be empowered to change prices to be granted the legal status of commercial agent.

This position is diametrically opposed to the one of the Cour de cassation and the Cour d’appel of Paris, which required for several years this empowerment of the agent to be qualified as a commercial agent.

The harmonization in European Union of the commercial agent’s status was introduced in 1986 by a Directive (86/653/EEC of 18/12/1986) incorporated into the Commercial Code (Art. L134-1 and following) under which a commercial agent is the person in charge of, on a permanent basis, to “negotiate and possibly conclude sale, purchase, rental or service provision contracts for and on behalf of producers, manufacturers, traders (…)”.

The distribution via a network of commercial agents is particularly suited to the national and international distribution of products and services. For the duration of the contract, the agent does not act in his own name and does not develop his own clientele but that of the principal, who can thus make his brands known and develop his sales on a national or foreign market according to a light mechanism (the agent is remunerated by a commission on sales) through the intermediary of an operator who is familiar with the functioning of this market.

At the end of the contract, the principal retains the clientele developed by the agent, which enables him to establish himself on a long-term basis on the market developed by the agent, through a local subsidiary or a local distributor who accepts the risk of distributing the products and services on its own behalf. On the other hand, the agent loses the fruits of his work. The status of commercial agent provided for by the Directive enables him, on termination of the contract, to claim compensation for the loss or the damage caused by the termination of the relationship (Directive, Art. 17). French law has chosen to compensate the loss caused by the termination of the contract (Directive, Art. 17.3; C. Com. Art. L 134-12), which, according to French case law, has resulted in compensation most often equal to 2 years’ commission calculated over the last 3 years of the contract.

For the last twelve years, and especially since 2014, and despite criticisms, the Cour de cassation, followed by the Cour d’appel of Paris, has been strictly applying the Directive, out of step with the courts of other European States and several other courts of appeal (for instance Lyon and Toulouse). Indeed, although the word “negotiate” does not have a legal definition in French law, they have consistently ruled that the intermediary who does not have the power to modify the terms of the contract with the customer (price and conditions of sale), does not have the power to “negotiate” in the name and on behalf of the principal as provided for by the definition of commercial agent (Cass. com. 15/01/2008, n°06-14698).

This strict interpretation of the term “negotiate” has had significant consequences for the agent under French law. Indeed, the agent who, at the date of signature of the contract believed himself to be protected by the legal status, found himself without this protection and deprived of the termination compensation, if he failed in bringing the heavy and difficult proof of his diligence with the clients, and of his negotiations on the price and his power to modify it.

It is in this context that the Tribunal de commerce of Paris referred a question to the CJEU for a preliminary ruling on the meaning of the word “negotiate” (T. com. Paris, 19/12/2018, n°2017/015204). The issue was important and the decision awaited with interest and impatience by practitioners of distribution law.

The decision of the CJEU of June 4, 2020 is clear and goes against the restrictive position of the Cour de cassation and the Cour d’appel of Paris: a person who sells goods for a supplier does not necessarily need to have the power to change the price to be qualified as a commercial agent.

Therefore, normally, the Cour de cassation and the Cour d’Appel of Paris have no other choice but to go back on their case law and abandon the condition of the power to negotiate prices as a requirement for a commercial agent. However, an arm wrestling with the Court of Justice is not to be excluded.

To industrials, producers and traders who may be concerned about this position, we would like to remind that:

– the amount of 2 years of commissions frequently awarded by the courts as compensation is not mentioned in the law: circumstances may justify a lower amount;

– this position is limited to commercial agency business and cannot be extended to other intermediaries or service providers.

Indeed, the commercial agent must look after the interests of the principal and act loyally and in good faith (Directive, Art. 3). In particular, the commercial agent must “make appropriate efforts to negotiate and, where appropriate, conclude the transactions for which he is responsible”. Although these operations do not necessarily involve the ability to modify the price of the goods, they require him to provide information and advice as well as to hold discussions with potential or existing customers to encourage sales. Only efforts and actions performed in this respect allow the agent to claim for the status of commercial agent and for commission fees on sales if he deploys them on a permanent basis. Thus, an agent who never visits customers or a service provider who is responsible only for advertising operations in a territory cannot claim either the status of commercial agent or any termination indemnity.

Catherine Robin, Partner and Ambre Luciak, trainee.

The Covid-19 crisis confirmed and accelerated the recent trend in Western countries to strengthen the foreign direct investments (or “FDI”) screening regulations (see our Newsletter dated March 2019). Indeed, France decided to broaden the scope of that screening and to apply stricter criteria to share acquisition in sensitive companies.

R&D in biotechnologies now subject to authorization

On 27 April 2020, the French Minister for Economy signed a decree adding “biotechnologies” to the list of critical technologies subject to screening when the French target’s business includes research and development in such sector. The list of critical technologies already includes cybersecurity, artificial intelligence, robotics, 3D printing, semiconductors, quantum technologies and energy storage.

As it is the case with all these technologies, there is no legal definition of “biotechnologies”. Given the timing of this addition, it obviously includes research for a vaccine against the Covid-19. But it is certainly broader and aims at protecting French companies active in Life Sciences, not only Human Health, but also animal health or plant genetics. Protecting Public Health is already a objective of the French FDI screening regulation, but it certainly strengthens that screening by preventing any circumvent of it. Finally, it is also consistent with the EU Regulation 2019/452 of 19 March 2019 implementing a European FDI screening framework and cooperation.

Lowering the shareholding threshold from 25% to 10%

Given the downfall of Stock Exchanges with the Covid-19, the risk was too high to see foreign investors – not necessarily friendly… – purchasing shares of sensitive French companies at low price. Therefore, the Minister also decided the temporary lowering of the voting rights threshold in sensitive companies requiring prior authorization.

A prior authorization is mandatory for any takeover (i.e. more than 40% or 50% of the voting rights depending on the definition of control) by a foreign investor of any sensitive French company. This applies to both EU/EEA and non-EU/EEA investors. Such authorization is also mandatory whenever a non-EU/EEA foreign investor crosses the threshold of 25% voting rights within the company (its used to be 33.3%).

The Minister decided to lower that threshold to 10%, under certain conditions:

– this only applies to listed companies,

– this does not apply to EU and EEA investors,

– this measure should end on 31 December 2020,

– a special procedure is implemented, pursuant to which the Minister will have 10 days to decide whether the transaction should be subject to further review (the usual timescale is 30 days).

This measure should enter into force on 1st July 2020, subject to a decree to be first reviewed by the Conseil d’Etat.

* * *

France foreign investment screening in a nutshell

France is one of the most comprehensive regime in Europe, with Germany, Italy and the UK ones: any investment – direct or indirect – through a share deal (i.e. acquisition of a controlling interest or, for investors outside the EEA, of more than 25% of the target company’s voting rights) or an asset deal (i.e. all or part of a branch of activity of a company) in a French entity active in regulated sectors is subject to a mandatory notification and a prior approval by the Minister for Economy.

Regulated sectors include, for both EU and non-EU investors, (i) activities likely to harm interests of national defence, public order or security as such (classified activities related to National Defence, IT systems for public security purposes and data-storage activities) or (ii) activities relating to critical infrastructures, goods or services (in relation to key France assets, energy, water, transportation, space operations, communications, IT systems of Police, Gendarmerie and Customs, critical infrastructure, public heath, agricultural products, press…) and (ii) R&D activities in the abovementioned sectors and related to critical technologies as defined in the Decree of 31st December 2019 (cybersecurity, artificial intelligence, robotics, biotechnologies), and to dual use goods and technologies.

There are no financial threshold to trigger the foreign investment review.

Do not hesitate to contact the Compliance and Regulatory team should you need any further information.

Frédéric Saffroy and Jeanne Quéneudec

Our employment team has prepared a newsletter on the latest reforms in France that impact all companies with a different format : a brief explanatory video.

For more info on the subject, you can contact Jean-Christophe Brun, Jacques Perotto or Nicola Kömpf (for German-speaking clients).

Find out more about dispute resolution in France and the tax benefits of conducting R&D activities in France.

Our tax law team has prepared a newsletter on the tax benefits of conducting R&D activities in France with a different format : a brief explanatory video.

For more info on the subject, feel free to contact Christophe Gerschel, Philippe Pescayre, Stanislas Vailhen or Marie Fandre.

Find out more about dispute resolution in France and the new facts about French Labour Law.

Our litigation team has prepared a newsletter on dispute resolution in France with a different format : a brief explanatory video.

For more info on the subject, you can contact Jacques Bouyssou, Sibylle Mareau or Nicola Kömpf (for German-speaking clients).

Find out more about the new facts about French Labour Law and the tax benefits of conducting R&D activities in France.

What has been the impact of Covid-19 on the operation of courts and court hearings in your jurisdiction?

In response to the coronavirus pandemic, the French government has introduced legislation enforcing the closing of law courts and the suspending of judicial proceedings.

During this period, courts remained opened exclusively to deal with “essential” matters such as: urgent criminal cases with incarceration issues, civil cases with familial and violence issues. Apart from these essential matters, hearings have been postponed.

To this end, few hearings have been taking place having regard to sanitary measures. Those measures include, in particular, rules on minimum physical distancing and the requirement to wear a protective mask, including inside the hearing room.

For “non-essential” matters, hearings have been postponed until further notice.

As the lockdown is progressively being lifted in France, national courts and tribunals are now looking at solutions, in particular technological ones, in order to ensure that hearings take place under optimal conditions.

Has your government passed legislation or issued orders suspending the operation of substantive deadlines such as limitation periods? Have there been changes to procedural time limits which have either suspend or extended relevant time periods or otherwise permitted parties to agree to extensions of time without resort to the courts?

The French government has issued orders effectively suspending the operation of certain substantive deadlines and procedural time limits during a “legally protected period” defined as the period running between 12 March 2020 and one month after the end of the current state of public health emergency (the “Legally Protected Period”). As of 11 May 2020, the state of public health emergency is announced to end on 10 July 2020 – meaning that the Legally Protected Period would end on 10 August 2020 – but that date may change depending on the evolution of the Covid-19 pandemic.

In civil and commercial matters, as per Article 2 of Order 2020-306 of 25 March 2020 (as amended by Order 2020-427 of 15 April 2020), all “acts, appeals, legal actions, formalities, registrations, declarations, notifications or publications” which by law must be carried out within a certain time period expiring during the Legally Protected Period “shall be deemed to have been accomplished in time if it is done within a period which may not exceed, as from the end of the [Legally Protected Period], the time period legally prescribed for taking action, up to a limit of two months”.

In practical terms, that means that both limitation periods and procedural time limits expiring during the Legally Protected Period will start again on the day following the end of the Legally Protected Period for a period of a maximum two months.

As illustrations, based on the assumption that the state of public health emergency will end on 10 July 2020:

– A five-year limitation period expiring on 20 March 2020 is extended until 11 October 2020 (i.e. 10 August 2020 (end of the Legally Protected Period) + 2 months from 11 August 2020);

– A two-year limitation period expiring on 9 August 2020 is extended until the same date (11 October 2020);

– A 15-day time limit to appeal a judgment expiring on 25 March 2020 is extended until 26 August 2020 (i.e.10 August 2020 (end of the Legally Protected Period) + 15 days from 11 August 2020).

Order 2020-306 of 25 March 2020 as amended also has affected the operation of certain contractual provisions. In broad terms:

– the operation of penalty clauses and late payment penalty clauses that were triggered before 12 March 2020 is suspended up to the end of the Legally Protected Period;

– the operation of penalty clauses, late payment penalty clauses, termination clauses and forfeiture clauses, the purpose of which is to sanction non-performance of an obligation within a set timeframe, that were triggered during the Legally Protected Period is suspended until the end of the Legally Protected Period plus an additional time period corresponding to the period during which the debtor was supposed to perform its obligation during the Legally Protected Period.

Besides, French law generally allows parties to agree on the suspension or interruption of limitation periods. This can be done by way of tolling agreements.

What has been the impact of Covid-19 in terms of the enforcement of judgments, including foreign judgments?

Concerning domestic judgments

In France, the enforcement of domestic judgments is carried out through bailiffs, who have authority to attach assets on the basis of an enforceable court decision.

During the lockdown which lasted between 17 March and 11 May 2020, the enforcement of judgments was more difficult in practice because of bailiffs’ limited capacity and ability to perform enforcement acts. It is too early to say whether and for how long the enforcement of judgments will continue to be disrupted in practice, but it is safe to assume that it will remain so to some extent for a few months.

Compulsory time limits for a judgment creditor to perform certain enforcement acts, and for a judgment debtor to challenge such acts before the enforcement judge, have been suspended up to the end of the Legally Protected Period.

The activity of enforcement judges has been drastically reduced during lockdown. It will continue to be disrupted for some time. Throughout the Legally Protected Period, under certain conditions and by exception to the general rule, enforcement judges may hand down judgments solely based on the parties’ written submissions, i.e. without holding a hearing.

Concerning foreign judgments

In civil and commercial matters, the enforcement of judgments rendered in Member States of the European Union, the United Kingdom and Denmark does not require prior recognition by a French court. Enforcement is carried out through bailiffs directly, as for the enforcement of domestic judgments. The impact of Covid-19 on the enforcement of judgments rendered in those jurisdictions is therefore similar to the impact it has had on the enforcement of domestic judgments described above.

Concerning foreign judgments rendered by other jurisdictions, enforcement requires prior exequatur, which is obtained through legal proceedings whereby the enforcing party summons the judgment debtor to appear before the competent French court from which exequatur is sought.

The shutdown of courts during the lockdown period has effectively suspended most court proceedings, including exequatur proceedings. Substantial backlog and associated delays are to be expected when normal operations resume.

Outside of the court system, are litigators conducting their practices (examination of witnesses, mediations, etc) virtually through video-conference platforms?

In response to the coronavirus pandemic, the French government, as many other governments around the world, has introduced legislation enforcing the closing of law courts and the suspending of judicial proceedings. This led French litigators to carry on their practice from their homes, concerning the cases not frozen under the emergency rules.

Litigators have therefore conducted negotiation or mediation meetings with colleagues and clients by way of teleconference or videoconference, such as Zoom or Microsoft Teams.

The Paris Bar also launched several online platforms in order to support litigators’ work before or outside the court system. So far, three platforms are now available: (i) two complementary platforms for mediation procedures and (ii) one platform aiming at supporting litigators’ work during proceedings and enhancing dialogue between parties and the possibility to reach amicable resolution of issues.

Paris Place de Droit, an organization gathering the main actors of the legal industry in Paris, is launching a platform proposing amicable solutions to parties confronted with difficulties related to COVID 19. This platform offers the services of leading GC, judges, attorneys or academics willing to help companies to escape difficulties.

Jacques Bouyssou, Partner in Litigation, Arbitration and White-collar crime.

Protection of industrial property titles

1. At the French level: The National Institute of Industrial Property (INPI)

The examination and issuance of industrial property titles as well as the publication of the National Commercial and Companies Register are maintained during the Covid-19 crisis. Therefore, the following online procedures before the INPI can still be completed: filing applications of trademarks, patents, designs and dematerialized “Soleau envelopes”, renewal applications of trademarks, payment of patent annuities, registrations of geographical indications.

Concerning the deadlines prescribed by the Intellectual Property Code, the Orders adopted by the French government on March 25, 2020 and April 15, 2020 provide that all time limits occurring between March 12, 2020 and one month after the end of the national state of health emergency (known as the “legally protected period” whose cessation has been set on May 24, 2020 for now) are extended to:

• One month after the end of the legally protected period if the initial period was one month (that means until July 24, 2020),

• Two months after the end of the legally protected period if the initial period was two months or more (that means until August 24, 2020).

To date, the date of cessation of the state of health emergency scheduled on May 24, 2020 could be subsequently extended regarding the evolution of the Covid-19 pandemic and the recent governmental measures.

According to the INPI, this extension of the time limits will apply to the following procedures: trademarks opposition, payment of patent annuities, trademarks renewal, designs extension, filing of an administrative or judicial appeal, comments from third parties or response to a notification from the INPI.

Finally, the new administrative proceedings for invalidity and revocation of trademarks before the INPI have come into force by the due date of April 1, 2020. Any time limit calculated from that date will be affected by this extension.

2. At the European level

Just like the INPI, both following European institutions have already taken significant measures and have adjusted their functioning to take into account the health crisis:

• The European Union Intellectual Property Office (EUIPO) has decided to extend all time limits expiring between March 9, 2020 and April 30, 2020 until May 1, 2020. The following statutory time limits are notably covered by the extension: the payment of basic fees for trademarks application or renewal, the claim of a right of priority, the trademark opposition or the filing of an appeal.

• The European Patent Office (EPO) has decided to postpone until further notice all oral proceedings in examination and opposition proceedings scheduled until April 30, 2020. A pilot will be started for opposition oral proceedings by videoconference. All time limits expiring as from March 15, 2020 are extended until May 4, 2020.

3. At the international level: The World Intellectual Property Organization (WIPO)

The WIPO has decided to continue the process of the main applications within its competence, notably those filed through the global IP services and those filed under the different international registrations for patents, trademarks, and designs.

***

For anyone who may be tempted to register the sign “Coronavirus” or “Covid-19” as a trademark, please be informed that some industrial property offices around the world have already ruled over the opportunity to register these trademarks (particularly in the USA and Belgium) and announced that these trademark applications are unlikely to be accepted. In France, the registration of the sign “Coronavirus” or “Covid-19” as a trademark to designate drugs or masks could probably also be rejected by the INPI due to lack of distinctiveness.

Defence of intellectual property rights before French national jurisdictions

All civil and commercial cases pending before the French courts are impacted by the Covid-19 crisis until further notice. Only absolute civil emergencies have been handled by the courts since March 16, 2020, which obviously excludes any intellectual property litigation.

Therefore, the implementation of procedures related to intellectual property issues will not be easy during this national state of health emergency.

Regarding the ongoing proceedings:

• From March 17, 2020, all scheduled hearings are cancelled, and all deliberations are extended.

• All time limits expiring between March 12, 2020 and one month after the end of the national state of health emergency are extended, as recalled above.

• All current time limits which have not expired during this period are maintained.

Please also note that there is no automaticity. Thus, it is still recommended to complete the due diligence within the required deadlines in order to avoid any delays.

Regarding the non-initiated proceedings, no seizure for counterfeiting can be carried out by a bailiff. However, any victim of intellectual property infringement can still prepare his case upstream for future litigation, and in particular by:

• Drafting by a bailiff statements of facts; either an Internet report in order to prove the existence of disputed contents online, or a report of online purchase of allegedly counterfeit goods or works of art in order to demonstrate that they are being illegally marketed, reproduced or represented,

• Collection of affidavits or supporting documents,

• Dematerialized deposit of a “Soleau envelope” before the INPI or a source code before a bailiff or the Agency for the Protection of Programs (APP) in order to give a certain date to the creations.

Finally, the new Securact platform allows that the service documents by a bailiff be performed with the qualified electronic signature, notably serving a writ of summons. If the addressee of the document refuses to give his consent, the bailiff must perform a service “without contact” by going to the addressee’s residence and taking all sanitary precautions.

In any event, all measures shall be taken to adapt the functioning of the litigation proceedings to the exceptional situation. Thus, Article 7 of Order of March 25, 2020 provides for videoconference or any electronic means of communication hearings. According to Article 8, the judge may decide that proceedings will only be conducted in an exclusively written form. Thus, the parties will have 15 days to object, except in summary proceedings.

Corinne Thiérache, Partner, Laura Raimondo and Alice Gautron, Associates.

With the help of Alice Marie, Student Lawyer at the EFB.