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UPC: first interim measures, while awaiting decisions on the merits!

Since its entry into force on June 1st, 2023, the UPC has jurisdiction to rule on the infringement and validity of European patents and European patents with unitary effect. However, during a transitional period of seven years, renewable once, the owner of a European patent will be able to opt for the jurisdiction of the UPC or to remain under the jurisdiction of the national courts (“opt-out”).

Several cases have been brought before the UPC which, although it has not yet ruled on the merits, has recently issued interim injunctions.

On June 22nd, 2023, the Düsseldorf Local Division of the Court of First Instance of the UPC, in the context of a dispute between myStromer AG and Revolt Zycling concerning a European patent relating to bicycle mechanics, assessed the admissibility of the provisional requests submitted to it by stating the urgent nature of the request and the apparent validity of the patent.

As regards the interim measures, it prohibited the defendant from offering, placing on the market, using or importing for the aforementioned purposes combined bicycle frame structures that would infringe the plaintiff’s patent in the territories of the countries covered by this European patent, in this case Germany, Italy, the Netherlands and Lichtenstein. These measures are subject to a penalty payment of up to €250,000 for each breach.

These interim measures, with a large territorial scope, have been ordered by the UPCpending a decision on the merits of the case. As MyStromer has served a writ of summons on Revolt Zycling on July 21st, 2023, it will be interesting to follow the outcome of this case.

The stakes and dangers of artificial intelligence in the art world: a law proposal to provide a framework for artificial intelligence under copyright law

The development of artificial intelligence (AI) is giving rise to serious concerns in the world of intellectual property, particularly in copyright. Aware of the issues at stake, some Members of Parliament made a law proposal on September 12th, 2023, aimed at providing a framework for artificial intelligence under copyright law.

Comprising four articles, the idea behind this proposal is to offer better protection to authors and creative artists who, in many fields, are suffering economically from the consequences of generative AI. The text does not seek to prevent or curb the use of AI in the art world, but rather to ensure better remuneration for authors whose works have been used by AI in its work-generating process.

Article 1 provides for the integration and use of protected works by AI to be subject to the prior authorization of the authors concerned, in accordance with the general rules set out in the French Intellectual Property Code.

The proposal also settles the tricky issue of ownership of rights in works created by generative AI “without direct human intervention”. In such a case, the authors of the works that initially “made it possible to conceive said artificial work” will be considered holders of the rights to this type of work, which will also be subject to collective management by authors’ societies.

Finally, AI-generated works will have to bear the corresponding words “AI-generated work”, as well as the names of the authors whose works have been used in the generative process of creation by AI. This proposal would make it possible to identify these artificial works while respecting the moral rights of the authors of pre-existing works.

In practice, the question of applicability of these provisions is bound to arise, insofar as generative AI requires the processing of very large quantities of potentially protected data. How, for example, can the authorization of thousands of rights holders be obtained? The parliamentary debates surrounding this proposal will therefore be closely scrutinized.

Publication of the CNC’s 2023 guide to environmental claims

On May 26th, 2023, the National Consumer Council (CNC) published its updated practical guide to environmental claims. The guide sets out the legal framework put in place to combat greenwashing, defines the concepts of environmental claims, mandatory environmental information and labels, and recommends best practices for the use of these claims.

Although this guide has no regulatory value, it nevertheless constitutes a soft-law foundation for both companies and consumers, the latter being able to report a company’s allegations via the SignalConso platform or refer the matter to the Professional Advertising Regulatory Authority (ARPP).

To remedy the lack of a legal definition of environmental claims, the guide refers to the definitions given by standard ISO 140211: “a claim is therefore a message about one or more environmental qualities or characteristics of the product (or its packaging), which makes it possible to distinguish and enhance the value of a product (good or service) or its packaging”.

The guide incorporates the provisions of recent environmental legislation. It reminds us, under the AGEC law, that “it is forbidden to use the terms ‘biodegradable’, ‘environmentally friendly’ or any other equivalent term on a product or packaging” (L. 541-9-1 of the French Environment Code).

It lists commonly used claims that are subject to specific regulations (e.g. “sustainable”, “use of renewable resources”, “recyclable”), and sets out instructions for using these terms.

Copyright infringement: the difficult originality of photographic works

In a decision rendered on September 12th, 2023, the Court of Appeal of Versailles has once again illustrated the difficulty of protecting product visuals under copyright law, by upholding the judgment handed down by the High Court of Nanterre on March 17th, 2021 in a dispute between a graphic designer and company PIERRE FABRE DERMO-COSMETIQUE.

The graphic designer, who had designed visuals for the various PIERRE FABRE brands, had accused the company of using some of these visuals in breach of his copyright. This dispute led to the signing of a settlement agreement regulating the past use of said visuals. However, noting that some of the visuals were still being used, he then sued PIERRE FABRE for infringement of his copyright.

In first instance, the High Court was severe in its assessment of originality of the visuals submitted to its review. Of the eight visuals in dispute, it found that only one met the originality criterion for copyright protection and ordered PIERRE FABRE to pay the graphic designer 9,000 euros as damages.

Seized by the graphic designer, the Court of appeal upheld this judgment. It validated the settlement agreement that preceded the dispute and rejected any classification of the visuals in question as collective works, before re-examining each of them. In particular, it noted that, in the case of product photographs used for promotional purposes, the graphic designer had used purely technical know-how to highlight the product. Thus :

Lighting effects, 3D representations, differentiated representation of product textures, etc. were considered lacking any originality in relation to cosmetic products.
Elements such as the sea, the beach and the sun were deemed to be classic for a sun cream, again ruling out copyright protection for the visual in question.
Lastly, the impact of PIERRE FABRE’s instructions was again taken into account to rule out copyright.

By way of exception, the originality of one of the visuals was confirmed, as it displayed “an aesthetic and personal bias” by depicting a DNA helix for a “biotechnological” water.

This decision illustrates the severity with which the courts are currently dealing with product promotional photographs, the copyright protection of which appears to be increasingly compromised.

Court of Appeal of Versailles, 1st Chamber, 1st Section, September 12th, 2023, No.21/05036

Influencers Law: a decree on the liquidation of penalty payments for influencers

On September 22nd, 2023, the first implementing decree (No.2023-887) came into force, precising the law of June 9th, 2023 on influencers by strengthening the DGCCRF’s powers over sanctions.

To date, a dozen or so influencers have been subject to various sanctions for misleading commercial practices: pinning on the DGCCRF website, administrative injunctions, obligations to inform subscribers of the alleged facts, and so on.

The decree now enables the DGCCRF to liquidate penalty on influencers. The amount of daily penalty payments is limited to 3,000 euros and may not exceed a total of 300,000 euros (article L. 521-1 of the French Consumer Code).

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