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Mr Camille Pecnard Associate Hogan Lovells International LLP - Lawyer biography - International Law Office

International Law Office

Camille Pecnard

Mr Camille Pecnard

Published updates

Intellectual Property

The minister of culture and communication recently presented a proposal for adapting French law to EU law in the field of copyright and cultural heritage. The proposal aims, among other things, to increase the term of protection of the rights of performers and producers of phonograms and videograms. The government has initiated an accelerated procedure for the proposal.

The Council of State has cancelled a decision of the Private Copy Commission because, in holding that all recording media were subject to a private copying levy without providing an exemption or a refund right for media – especially those bought for professional purposes – whose terms of use do not allow for a presumption of use for private copying, the decision ignored the applicable provisions of the IP Code.

The Supreme Court has ruled that a customs seizure on company premises is valid as long as it takes place in the presence of someone who behaves as the company representative, even if he or she is not a representative of the company and even if the real representative is not there. It is thus important that employees who have no power to represent their company do not behave as if they do.

The Supreme Court recently considered whether the participants in the French version of famous reality television show Temptation Island held neighbouring rights in their performances. It held that the participants could not be considered as performers with valid neighbouring rights, since they did not play a role or have a script, but were merely requested to be themselves and express their reactions to situations.

The European Commission has announced the reform of the European trademark regime, amending both the EU Trademarks Directive and the EU Community Trademark Regulation. One of the key issues dealt with by the proposals relates to goods in transit. The main aim of the reform is to promote innovation and economic growth by making the trademark system more accessible, more efficient and less expensive.

There have recently been new developments regarding the ongoing copyright levies saga. The Constitutional Court and the Private Copy Commission have issued new decisions which, while providing useful clarification, are unlikely to bring the heated debates on this issue to a close. Meanwhile, an in-depth review of the system is under consideration and expert reports are currently in the pipeline.

The Supreme Court has cancelled Christian Louboutin's trademark - representing a red sole - for lack of distinctiveness. Louboutin initiated proceedings after a collection of women's shoes featuring red soles was launched by high-street retailer Zara. However, the court stated that the reputation of Louboutin's red shoe soles related merely to a concept, rather than to the trademark.

A recent Supreme Court case dealt with the digitalisation of photographs by a press agency without the photographer's express authorisation. The Paris Court of Appeal had found that the digitalisation of the photographs constituted an unauthorised act of reproduction, but the Supreme Court overturned this decision.

France recently adopted a new law on the safety of drugs and health products. The law contains various provisions aimed at strengthening the transparency of the Public Health Code, monitoring drugs and governing health products. Two provisions of this law also introduce exceptions to IP rights on drugs.

The Paris Court of Appeal recently ruled in favour of Nintendo against retailers and importers of linker devices. The digital rights management set up by Nintendo on its games consoles prevents users from using counterfeit games. However, a linker can circumvent the digital rights management and allow counterfeit games to be played on a Nintendo games console.

The private copying exception and copyright levies are hot topics in France.The country's highest administrative court recently issued an important ruling in this regard, cancelling an earlier decision of the Private Copy Commission because it failed to distinguish between recording devices for professional use and recording devices that could be deemed to be used for private copying.

The Criminal Chamber of the Supreme Court has rendered a decision regarding the criteria to determine the jurisdiction of French courts in case of online infringement of IP rights. Although the other chambers of the Supreme Court had previously considered the relevant public to be the sector of the public that is "attracted" by a website, this new decision seems to consider that the relevant public is the targeted public.

A recent decision of the Paris Court of First Instance has provided further guidance on the enforcement of performance and database rights under French law. The court held that the redirection of an internet user to a window showing a television programme did not constitute performance of that television programme. Furthermore, the provision of such links did not breach database rights.

The First Chamber of the Supreme Court has rendered a key decision regarding the right to publish a work protected by French author rights. As the owner of the right to publish posthumous works was not the same as the owners of the patrimonial rights in the same works, the court had to determine who was entitled to enter into a publishing contract regarding these works.

The Paris Civil Court of First Instance has confirmed that Ferrero SpA's three-dimensional trademark for products in Class 30, including sweets, is valid following a challenge brought by German company Candy Team. The court also ruled that Candy Team had sought to promote its own products by taking undue benefit from the investments made by Ferrero for its Tic Tac products, which constituted distinct acts of parasitism.

Hansgrohe AG owned an EU design for its Raindance shower head. It instituted legal proceedings for design infringement and unfair competition against the owners of the Lagoone shower head, which was protected as a French design. The Paris Court of Appeal overturned a first instance decision, deciding that the Lagoone shower head infringed Hansgrohe's design rights on its Raindance shower head.