The new bill was drafted by the French Government on February 7, 2007 in order to improve the tools in the fight against counterfeiting. Its scope of application concerns all industrial and intellectual property rights including indications of origin and geographical indications. This draft of bill is the French version of a Community Directive dated April 29, 2004, whose aim is primarily to increase the means of proving counterfeiting acts, and of remedying the damages.
Six main points stand out:
Right of information: The main innovation of the bill is aimed at fighting against counterfeiting rings, by allowing the parties to obtain the necessary information to dismantle them. In fact, the bill authorizes the judge to compel counterfeiters to give the necessary information about the quantities and prices of the products, as well as about their prior and future owners.
Strengthening the procedure for seizing of counterfeit goods: The bill extends the scope of this procedure to some areas in which the seizure did not previously apply, such as, semiconductors, patentable new plant species, indications of origin, and databases. Moreover, it gives the possibility of seizing the materials and machines used to produce and distribute the counterfeit goods. It also amends the deadline for introducing the action before the Court. The new deadline will be fixed by decree.
Development of provisory measures : Certain provisory measures would be obtainable, when necessary, even before the action on the merits for any intellectual property right, not just against potential counterfeiters but also against middlemen acting in the counterfeiting ring. For example, the judge could obtain protective seizure of any personal or real property and could block bank accounts.
Remedies: The judge may order that a recall of the counterfeit products be taken off the market, and/or the destruction of the materials and machines for their production or conception.
Better financial compensation for the victims: Aside from the negative economic consequences for the victims, the damages could also repair the moral prejudice and the unfair benefit realized by the counterfeiter. A lump sum could be fixed as damages, being based at minima on the royalties that the counterfeiter should have paid to the victims to use their rights if they had been authorized to.
Application of the DOHA settlement : This rule allows developing countries to get medicine against strong pandemics by required licenses. The bill will certainly be modified before its final version enters into force. We will monitor the situation and report accordingly in the next issues of IP TALK.