Intellectual Property

Intellectual property is a specific branch of law that groups together all the rules applicable to “intellectual property”, to intangible property resulting from a creative effort.

This branch is itself subdivided into two distinct branches:

• The field of literary and artistic property, a legal concept that corresponds mainly to copyright and related rights (protection of intellectual works, protection of publishers, etc. …);
• The field of industrial property, a legal concept that corresponds mainly to patent law, design law, trademark law and appellations of origin and indications of source.

The purpose of intellectual property as a whole is to encourage innovation, creation and progress by providing protection for the intellectual work of creators (authors, inventors, trademark owners, etc.).

Ownership of certain of these assets allows for the issuance of exclusive title.

The holder of intellectual property rights will have a monopoly of exploitation on his rights, provided that they are protectable

Indeed, in the absence of such a protection regime, it would be much less tempting to create by investing one’s self, one’s reflection and creativity, one’s time and especially one’s money.

In the area of patents, in particular, considerable sums of money are sometimes involved.

So, in order to encourage inventors, artists, innovators or scientists to create, we must be able to ensure them a fair return on their investment and a protection of their work.

The intellectual property regime is therefore the result of a balance between the community’s interest in benefiting from the progress, innovations and creations of others, while ensuring that the latter are rewarded for their efforts.

The stakes in this subject are high, and they continue to grow as society evolves and technology advances.

Intellectual property offices have been established around the world.

In France, we have the National Institute of Industrial Property (INPI), at the European Union level, the European Union Intellectual Property Office (EUIPO), and at the global level, the World Intellectual Property Organization(WIPO).

In France, the rules applicable to intellectual property have been enshrined in the Code of Intellectual Property since 1992, whose legislative part takes up the subdivision between the various intellectual property rights:

• Article L.111-1 to L.343-7 for literary and artistic property;
• Article L.411-1 to L.731-4 for industrial property.

However, other texts preceded the Intellectual Property Code on this issue, whether at the national or international level, such as the Universal Declaration of Human Rights of December 10, 1948 or the Paris Convention of 1883 concerning industrial property and the Berne Convention of 1886 concerning literary and artistic property.

It is recommended to be accompanied by a lawyer specialized in this field in order to optimize the protection of your assets (elaboration of a filing strategy, monitoring of your rights, etc.) as well as their defense against third parties (characterization of the infringement, evaluation of the prejudice, choice of the most appropriate action, etc.).

Indeed, the strategy for protecting and defending a trademark will not be the same as the one to be adopted for a work of the mind, for example, since these creations are subject to a distinct legal regime (on the one hand the brand must be equipped with a distinctive character with regard to the product(s) and/or service(s) it designates, whereas a work of the mind must be original and result from arbitrary and artistic choices of its  author).

The defense of these rights is therefore not ensured in the same way, and the specificity of each must be taken into account.

Update on fundamental rights

Article 27 of the Universal Declaration of Human Rights enshrines the right to take part in cultural life:

“Everyone has the right to participate freely in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Point on some texts governing the matter

Today, many texts also exist at the level of the European Union, in particular in the field of industrial property with the objective of harmonizing rights on the territory of the European Union, and on a larger scale, at the international level.

At the European level:

• The European Union Trade Mark Regulation ;
• The European Union Design Regulation ;
• The European Patent Convention ;
• The Directive on Copyright and Related Rights in the Digital Single Market.

At the international level:

• Patent Cooperation Treaty (PCT);
• The Hague Agreement (designs) ;
• The Madrid Agreement and the Madrid Protocol (trademarks) ;
• The Berne Convention (copyright).

Update on the evolution of the material

Intellectual property law, like law in general, is a constantly evolving field. The texts governing this subject are thus obliged to take into account these evolutions and to adapt to new technologies and contemporary cultural practices.

Indeed, digital technology, social networks and new societal practices nowadays go far beyond the framework of the founding texts. This is why this subject is in constant motion and why its practitioners must adapt and understand the world around them.

Update on the PACTE law – major reform of intellectual property law

The PACTE Act of May 22, 2019, adopted as part of the transposition of the “Trademark Package”, provides for the gradual entry into force of new intellectual property rules aimed at strengthening the robustness, progressiveness and legal security of French intellectual property titles.

The Bouchara Law firm assists you in particular in :

• The construction of your projects;
• The development of a strategy to protect your industrial property assets;
• The formalities for registering your works and trademarks;
• Monitoring your rights on databases and the Internet;
• The protection and defense of your rights before the Offices and Courts in France and abroad (opposition proceedings, nullity action, revocation action, infringement action, unfair competition action, etc.).