Proposed legislation on counterfeiting: new recommendations and advances tabled before the Assembly19/11/2021
To counteract counterfeiting, a new law proposal will be examined during the next parliamentary session of the Agir group.
This proposed law made by Christophe Blanchet (Modem) and Pierre-Yves Bournazel (Agir), admits that French legislation “has not been able to adapt to the new context caused by the opening of borders and online trade“. Therefore, proposing parliamentary initiatives to effectively fight against counterfeiting has become a “need”.
The new version of this bill proposes a text composed of seven articles, contrary to its previous version which included 23 articles.. The first article of this bill coordinates the many players in the fight against counterfeiting, in particular by creating an interministerial delegate. The following three articles are intended to strengthen and facilitate their actions. Article 2 amends Article L. 716-10 of the Intellectual Property Code by imposing a fine on anyone selling an infringement. This fine will have to be “proportionate to the severity of the misconduct committed, to the contributive capacities of the offender and to the profits he or she has made“. Article 3 intend to authorise sworn trademark officers to record and stop an infringement committed on the Internet, in the following terms amending Article L. 716-4-7 of the Intellectual Property Code:
“The sworn agents mentioned in the fifth paragraph shall be authorised, within the scope of their powers, to observe the infringement and to intervene, on behalf of the right holders, with the administrative authority or the competent judicial authorities“.
Article 4 introduces into the French Intellectual Property Code a provision “allowing the judicial authority to order several suspension of domain names and social network accounts”, through the following draft articles:
“Art. L. 713-7. – The holder of the trademark right may request the judicial authority to suspend or delete several domain names or social network accounts that infringe the trademark or allow the publication of offers for the sale of infringing goods”.
“If it is impossible to identify the real owners of the domain names or social network accounts, the action may be taken against one or more identifiable intermediary service providers”.
“Art. L. 713-8. – Online marketplaces, social networks and, where applicable, intermediary service providers shall notify their users of their accounts and pages suspended or deleted pursuant to Article L. 713-7.”
In addition to the Articles 3 and 4, which are related specifically to the digital domain, Article 6 of this bill establishes the experimentation, for a period of five years of “a jurisdictional chamber dedicated to disputes relating to online commerce [is] set up within three judicial courts“.
These new recommendations will be analysed on 25 November 2021, thus establishing a step towards legislation that is better adapted to “21st century crime”, as the World Customs Organisation puts it.
By Anne-Marie Pecoraro and the IP/IT team of UGGC Avocats