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“So then I took my turn / Oh, what a thing to have done / And it was all yellow”

31/01/2023

“So then I took my turn / Oh, what a thing to have done / And it was all yellow”

The colour yellow PANTONE 123 C cannot be registered as a trade mark due to its lack of inherent distinctiveness for dating applications, the specification of the wording as to the person initiating the interactions being irrelevant.  

In accordance with Article 7(1)(b) EUTMR, the Board of Appeal recalls that a colour can only be considered inherently distinctive in exceptional circumstances, namely when it is unusual or striking and designates a very restricted number of goods and services in a specific market. 

After the initial refusal of its trade mark application, Bumble limited the wording of the goods and services designated. It considered that, as (i) the target public was very limited, (ii) the colour was clearly defined and accompanied by a Pantone reference, and (iii) it was used prominently (unlike its main competitors), the colour could exceptionally be qualified as distinctive. 

In its decision dated 9 January 2023 (R 1083/2022-1), the Board rejected these arguments, finding that the colour yellow, because of its eye-catching character, is frequently used in sector of software applications, making it a basic colour for this category of goods. It also noted several other dating applications using a prominent yellow colour, regardless of the fact that these applications did not exist at the launch of the Bumble application.

Publication of the new French Financial Prosecutor’s Guidelines on the implementation of the French Deferred Prosecution Agreement

17/01/2023

Publication of the new French Financial Prosecutor’s Guidelines on the implementation of the French Deferred Prosecution Agreement

On January 16, the French Financial Prosecutor’s (Parquet national financier – “PNF”) published a new version of its Guidelines on the implementation of the Judicial Convention of Public Interest, (i.e., the French Deferred Prosecution Agreement – “CJIP”).

Aiming to strengthen the transparency, predictability and readability of the CJIP, these Guidelines provide details concerning:

  •  The manner in which the prosecution assesses the company’s good faith, the latter having to actively participate in the manifestation of the truth by conducting an internal investigation;
  • The bargaining terms between the company and the prosecution (for instance, the scope of exchanges’ confidentiality, access to the case files, the consequences in case of bargaining failure, etc.);
  •  The methods of calculating the public interest fine (amende d’intérêt public), in its two dimensions, both "restitutive" and "afflictive." The Guidelines list the criteria likely to increase or reduce the fine’s amount, as well as their ceilings;
  •  The validation of the CJIP and its consequences.

These new Guidelines replace a former version, adopted jointly by the PNF and the French Anticorruption Agency on June 27, 2019.

 

Happy new year 2023!

05/01/2023

Happy new year 2023!

 

The European Commission proposes to criminalize the violation of EU sanctions

20/12/2022

The European Commission proposes to criminalize the violation of EU sanctions

On December 2, the European Commission has put forward a Directive proposal aimed at harmonizing criminal offences and penalties for the violation of EU restrictive measures.

 Such proposal seeks to establish the same level of penalties in all Member States and thus increase the deterrent effect of violating EU sanctions. Indeed, pursuant to the proposal, a natural person could be liable to a maximum penalty of at least five years in prison, while companies could be liable to penalties of no less than 5% of their total worldwide turnover.

 The proposal will now be discussed by the European Parliament and the Council.

Application for a declaration of invalidity of trademarks: lack of interest in bringing proceedings

13/12/2022

Application for a declaration of invalidity of trademarks: lack of interest in bringing proceedings

In a decision dated December 7, 2022, the French Supreme Court recalls that an economic operator who is neither sued for infringement of the trademarks subject to the application for a declaration of invalidity, nor able to justify an obstacle to the exercise of its economic activity due to the filing of the trademarks in question, does not have any interest in bringing proceedings.

 In this case, the invalidity of several trademarks, including French trademarks composed of the terms “Dom Pérignon”, “Ruinart”, “Clicquot” and “Moët & Chandon” was sought.

In order to establish its interest in bringing proceedings, the applicant company relied, in particular, on infringement actions brought, in France and in the Netherlands, against it by the company owning these trademarks.

However, the infringement proceedings were based on EU or international trademarks, and not on French trademarks.

The French Supreme Court therefore dismissed the appeal and held, as did the Court of Appeal, that the applicant did not have a legitimate interest in the absence of infringement proceedings against the French trademarks including the identified terms, and in the absence of infringement of its prior rights by those trademarks.

Regarding the interest in bringing proceedings, it should be recalled that since April 1, 2020, date of entry into force of the “Trademark Package” (“Paquet Marques”), an application for a declaration of invalidity filed before the INPI does not require the demonstration of such an interest.

 

Expatriated employee: obligation to provide information on the social protection system

07/12/2022

Expatriated employee: obligation to provide information on the social protection system

The French Supreme Court requires the employer to inform the expatriated employee of the social protection scheme applicable to him

When an employee is expatriated outside of France, he or she must in principle be affiliated to the social protection scheme of the country in which he or she performs the employment contract.

As a result, the employee is no longer subject to basic or complementary pension contributions, and therefore does not acquire any trimesters for this period.

On the other hand, the employee may voluntarily subscribe to the Caisse des Français de l’Etranger (Foreign French Fund – CFE) so that the trimesters worked as an expatriate can be taken into account in determining the right to a retirement pension.

In a decision dated November 23, 2022, the French Supreme Court ruled that the employer has a duty to inform the expatriate employee of his social protection scheme.

If the employer fails to do so, it may be ordered to compensate the employee for the resulting prejudice, which can quickly turn out to be significant.

This decision calls for caution when expatriating an employee, and confirms the need to fully inform the employee of the fact that§  His activity does not give rise to affiliation to the retirement insurance scheme;

  • §  His activity does not give rise to affiliation to the retirement insurance scheme;

    §  It is possible to voluntarily join the Caisse des Français de l'Etranger.

Protection of privacy: except in special cases, the accounts of corporate foundations do not have to be communicated to third parties

23/11/2022

Protection of privacy: except in special cases, the accounts of corporate foundations do not have to be communicated to third parties

A Corporate Foundation has the right to the protection of its private life. Consequently, if it does not receive public subsidies, its accounts do not have to be communicated to third parties who so request.

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A corporate foundation has the legal obligation to communicate each year to the Prefecture its accounts and its annual report.

In principle, the documents communicated to the administration can be communicated to third parties who request them (e.g. the by-laws).

As an exception, if their communication constitutes an invasion of the privacy of the person concerned, the documents do not have to be communicated.

According to case law, the communication of information relating to its financial situation constitutes a violation of the privacy of a legal person. In the present case and according to the French Conseil d’Etat, since the Corporate Foundation did not receive public subsidies for the financial years concerned, its accounts do not have to be communicated.

 

GF PARTENAIRE DU MASTER 2, DROIT DES AFFAIRES 214 DE DAUPHINE !

14/11/2022

GF PARTENAIRE DU MASTER 2, DROIT DES AFFAIRES 214 DE DAUPHINE !

Le cabinet a eu le plaisir de recevoir ce lundi 14 novembre, autour d’un petit-déjeuner, des étudiants de la Promotion 2022-2023 du Master 214.

L’occasion pour Guillemin Flichy de présenter aux étudiants les valeurs du cabinet et de partager notre savoir-faire.   

Cette rencontre s’est poursuivie par des échanges riches et constructifs entre les associés, les collaborateurs et les étudiants du M214.