The protection of works under copyright law has become increasingly difficult in France in recent years. Judges are ever more demanding when it comes to characterizing the originality of works submitted for their consideration—a key condition for copyright protection.
Fewer works, particularly in the field of applied arts, now qualify for copyright protection. So, what can businesses in sectors such as design, fashion and textiles, crafts, graphic arts, furniture, and industrial objects do to safeguard their interests?
Do Not Rely Solely on Hypothetical Copyright Protection
While copyright protection remains possible for works of applied arts—and may seem attractive due to its lack of formalities (no registration required, hence no upfront costs)—it is subject to judicial interpretation. One cannot be certain of holding copyright over a work or object until a judge has ruled as such. To secure copyright protection, one must demonstrate the originality of the work, i.e. that it reflects the author’s personality and results from creative and intellectual effort.
Benefits of Registered Designs
- Design Law Is Tailored to Applied Arts and Manufactured Products
Design law is specifically intended for works of applied arts or functional objects with a characteristic design. It protects the appearance of the whole or a part of a product resulting from the features, in particular the lines, contours, colours, shape, texture and/or materials, of the product itself and/or of its decoration. Following the reform of design law at the end of 2024, movements, transitions, animations, and digital or virtual creations (not just physical ones) are now also protectable.
- A Protection Easier to Secure
The validity of a design is subject to two conditions: novelty and individual character. A design is new if no identical design has been previously made available to the public. It has individual character if it produces a different overall visual impression from any previously disclosed design.
The advantage of these conditions, compared to the originality requirement in copyright law, is that they are relatively objective: they involve comparing the design to what already exists. This provides greater legal certainty for the holder.
- Guaranteed Registration
Unlike copyright protection, which arises automatically (in theory) without formalities, design protection requires registration.
In France and at the EU level however, the registration process for designs does not involve a substantive examination. Neither the INPI (French National Institute of Industrial Property) nor the EUIPO (European Union Intellectual Property Office) checks for prior art. This means that registrations are almost systematically granted (unless there are formal deficiencies).
Registration timelines are also very short: a few weeks for French designs and just a few days for EU designs.
- Presumption of Validity of Registered Designs
Registered designs are presumed valid, meaning they are presumed to meet the conditions of novelty and individual character.
This shifts the burden of proof: it is not the holder who must prove the validity of the design, but the opposing party who must demonstrate its invalidity.
This presumption of validity also grants access to specific tools under the French Intellectual Property Code, such as the “saisie-contrefaçon” (seizure of presumed counterfeit goods) and the right to information—both of which are particularly useful for characterizing the extent of damages and obtaining compensation.
- Valuable Assets for Businesses
Design registrations are industrial property titles and thus intangible assets that are easier for businesses to monetize—whether financially (like other company assets) or contractually (through licensing or assignment agreements).
It is also worth noting that designs can be registered by and in the name of a company, whereas copyright inherently vests in the individual author. Within a company, claiming copyright therefore requires anticipating formal assignment procedures before any exploitation.
Procedural Advantages
Design law offers particularly attractive protection options for French businesses.
- France vs. European Union
French businesses can choose between protection in France only or across the entire European Union.
While registration fees differ, this allows for easy arbitration between national protection (for businesses focused solely on the French market or products intended exclusively for France) and EU-wide protection.
French or EU registrations can also be extended internationally within the six-month priority period following the initial filing date.
- French Simplified Application
In France, it is possible to opt for a simplified application, enabling the registration of a large number of designs at once.
As opposed to a “standard” application, there are no reproduction and publication fees for designs filed in a simplified application, allowing for filing a much greater number of designs.
The simplified application grants the applicant a filing date, but the designs are not published (for up to 30 months), so they are not enforceable against third parties.
This procedure is therefore best suited to businesses that produce a very high volume of designs, such as the fashion industry. It allows for the initial filing of any and every design without making a selection. Within 30 months of the simplified application, the applicant should elect these of the designs that have proven meaningful or successful, and request publication only for those—incurring additional publication fees only for the selected designs.
In short, the first step would be to file all designs at a limited cost. And the second step would be to request publication only for designs that add value to the business.
- 12-Month Grace Period
In France and at the EU level, design law provides for a 12-month grace period, allowing the filing of a design up to 12 months after it was first made available to the public.
Thus, the disclosure or use of a design by a business does not destroy the novelty of its subsequent application, provided it is done within 12 months.
This is an extremely favourable provision for businesses and designers within the European Union, as it allows for market testing of a product, design, or model before applying for IP protection and claiming a monopoly.
However, this last-chance option only applies to French or EU applications. International protection will be impossible, even under priority, as self-disclosure by the holder still destroys the novelty of the design abroad. If the design is intended for markets outside the European Union, the only strategy is to file an application before any disclosure and extend it to countries of interest within the six-month priority period.
- Protection for Unregistered Designs
EU law grants protection to unregistered designs, provided they meet the validity conditions of novelty and individual character.
While registered designs can be protected for up to 25 years (with renewals every five years), unregistered designs are protected for only three years from the date of first disclosure.
Additionally, while registered designs are enforceable against all subsequent identical or similar designs (those whose overall visual impression does not differ from the registration), unregistered designs are only enforceable against deliberate copies.
Nevertheless, this system is particularly valuable for European businesses, especially in industries with frequent design turnover (such as fashion).
- Example of a Strategy Leveraging Procedural Advantages
1) File an application for designs that are meaningful for the business.
2) Disclose designs without selection.
3) File an application for designs that have proven successful, within the 12-month grace period, in France or the EU.
4) Rely on unregistered design rights for all other designs, for the legal duration of three years.
5) All registered designs can enjoy legal protection for up to 25 years (subject to five-year renewals).
Do Not Hesitate to Register Your Designs
We are at your disposal to assist you at every stage of protecting your creations, to help you build an appropriate protection strategy tailored to your activities, to determine which designs to protect, to verify their eligibility and validity, to conduct all necessary prior searches, to select the views to be filed, to handle all formalities and procedures, to extend protection internationally if appropriate, to help you monetize your designs, and to support you in licensing or assignment agreements.
© INSCRIPTA
