FRANCE Trends and Developments Contributed by: Karine Disdier-Mikus and Marguerite Senard, Fiducial Legal By Lamy
naming it “ Kamugo ”, which is in no way close to Birkin. However, trade mark infringement may occur not only when an identical or similar trade mark is affixed but also when a brand is used in adver - tising. For example, using a hashtag associated with a brand to promote a dupe can also consti - tute trade mark infringement. Even if no identical or similar trade mark is used in relation to the dupe, reproducing or imitat - ing a product protected by a registered three- dimensional trade mark would also be a trade mark infringement. If IPR holders do not hold a three-dimensional trade mark or if trade mark infringement is not available, the reproduction of the distinctive and/ or original features of the authentic product pro - vides IPR owners with legal grounds for action based on copyright infringement, registered design infringement, and/or unregistered com - munity design violation. Copyright protection requires a number of con - ditions to be met, such as the originality and materialisation of the work. Indeed, the work must be original and reflect the personality of its author; thus, it cannot simply be a copy or reproduction of earlier works. The reproduction of simple elements belonging to the common fashion background obviously cannot be pro - tected by copyright. Nevertheless, the combi - nation of these elements, as a whole, can give the product a particular appearance that distin - guishes it from other products of the same type. This is achieved by examining the overall design produced by the arrangement of the various ele - ments rather than examining each individually. This reflects an aesthetic choice imbued with the personality of its author.
Therefore, any representation or reproduction in whole or in part without the consent of the author or his successors or assigns is unlaw - ful and constitutes an infringement (see Article L122-4 of the French Intellectual Property Code). Dupes can obviously fall within this scope. Alongside copyright, registered designs and unregistered community designs protection are commonly used against dupes. For the design to qualify for design protection either as a French design (in accordance with Article L511-2 of the French Civil Code) or as a registered and unreg - istered community design (in accordance with Article 4 of the Council Regulation No 6/2002 of 12 December 2001 on Community designs), it must be new and have an individual character (for the community design) or a character of its own (for the French design). A design is con - sidered “new” if no identical design has been made available to the public. It would have an individual character/a character of its own when it produces a visual impression (to the public) different from those of existing designs to be perceived as unique by an informed user. Considering the short life of designs in the fash - ion industry and the costs incurred in register - ing designs, protection through unregistered community design is usually preferred. It suc - cessfully provides fast protection, as this right is acquired by the first disclosure of the designs in the European Union territory without having to perform any administrative formalities. As per Article 11 of the Council Regulation No 6/2002 of 12 December 2001 on Community designs, if the requirements are met, a design shall be pro - tected by an unregistered community design for a period of three years from the date on which the design was first made available to the public within the European Union.
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