It is common to hear that there is a lot of infringement going on. Worse still, as a creator, you may fear that you are a victim of infringement. This can concern a multitude of areas: from artistic creations such as a design or a piece of clothing, to technical creations such as telephones or websites, to elements that identify a business such as a trademark. Depending on the rights in question, it is, therefore, essential to consider their protection and defence through infringement proceedings.
1) Definition of infringement.
It is a violation of an exclusive intellectual property right (trademark, patent, copyright, etc.).. It involves the reproduction, imitation, or use, in whole or in part, of a right that is protected by intellectual property law, without the authorisation of the holder.
Infringement constitutes an offence. The infringer may be held criminally liable, with penalties of up to four years imprisonment and a fine of €400,000. The infringer may also be held civilly liable, which may also lead to the payment of damages calculated based on the loss. It is also possible to obtain a ban on further infringements, the confiscation or destruction of the infringing objects and their means of manufacture, or the publication of the judgment.
To prove infringement, several tools are available to right holders, including:
- Seizure of infringing objects,
- Bailiff’s report,
- Customs seizure.
If no intellectual property rights exist, it is therefore not possible to bring an infringement action. However, other actions exist in this case: it will be necessary to consider unfair competition law.
2) Infringement by type of creation.
The nature of the infringement may differ according to the type of creation. Here is an overview:
- Infringement of identifying features:
First, there is trademark infringement. This consists of the reproduction, imitation, deletion, or substitution of the trademark without the owner’s permission. Furthermore, it can also be the act of holding, selling, or importing goods bearing the infringing trademark.
However, the use of a company name, a trade name or a sign is not sanctioned as an infringement. Instead, unfair competition must be examined.
- Infringement of innovations:
Then there is patent infringement. It consists in the manufacture of a product or the use of a process that has been patented without the authorisation of the patent holder. Similarly, the unauthorised sale or importation of a product protected by a patent is also punishable under infringement.
- Infringement of designs and creations:
The unauthorised manufacture of a product shape protected by a design, identically or similarly, is considered an act of design infringement. Also, the unauthorised sale and importation of a protected shape are punishable as infringement.
Finally, the main acts of infringement of copyright and related rights are the reproduction of a work in whole or in part without the authorisation of the right holder, or the representation or use of a work without authorisation.
3) How to protect your creations against infringement?
To protect their creations, all creators and entrepreneurs need to register their intellectual property rights with the National Institute of Intellectual Property (INPI):
- Patent registration for innovations.
- Trademark registration for brands
- Design registration for aesthetic objects.
The registration, obtained after the examination of the application, provides protection and therefore the possibility of taking action in the event of an infringement.
However, there is no such formality for copyright. As copyright arises automatically, it can be difficult to prove the date of creation or who the author is. It is therefore advisable to obtain proof of rights to be able to prove the date and ownership of the creation, through proof of anteriority, such as the Copyright.eu certificate.
It is indeed essential to obtain proof of anteriority to be able to prove that you are the author of your creation at a certain date. This makes it easier to claim your copyright, particularly in the event of infringement or future challenge by a competitor.
The Copyright.eu anteriority certificate provides indisputable proof of anteriority, through the intervention of a Bailiff (depending on the offer selected), but also through the qualified electronic timestamp, which has evidential value, including internationally.
To apply for a Copyright.eu anteriority certificate, the process can be completed online. Please visit the following address: https://www.copyright.eu/depot-copyright-en-ligne/fonctionnement/