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Introduction

In a notable judgment handed down on 12 March 2026 (Nador Cott Protection SAS v Asda Stores Ltd, [2026] EWHC 553 (Pat)), the UK Patents Court provided important clarification on the concept of an essentially derived variety (EDV) as applied to citrus fruit.

The decision concerns the mandarin variety “Tang Gold”, which the holder of the protected variety “Nadorcott” claimed was an essentially derived variety of Nadorcott. The dispute therefore required the UK court to examine the criteria for establishing the existence of an EDV and, more specifically, the method for identifying the essential characteristics of the initial variety.

The main lesson from this decision is clear : EDV status cannot be inferred from mere genetic or phenotypic similarity. It requires a rigorous analysis of the essential characteristics of the protected variety and of their expression in the allegedly derived variety.

The Nadorcott / Tang Gold dispute : background and issues

The “Nadorcott” variety is a late, seedless mandarin created in Morocco and protected since 2004 by a Community plant variety right. Following Brexit, this protection was converted into a UK national right as from 1 January 2021.

Given its international commercial success, this variety has already given rise to several major disputes, notably before the Court of Justice of the European Union in Case C-176/18. The UK dispute between Nador Cott Protection SAS and Asda Stores Limited falls within this broader context of exploiting and actively defending the rights attached to this plant variety.

Tang Gold, a variety derived by irradiation

The “Tang Gold” variety, marketed under the name “Tango” in certain countries, was developed by the University of California, Riverside from irradiated buds of the “W. Murcott” variety, which was alleged during the proceedings to correspond to the Nadorcott variety.

This variety has a particular characteristic : it does not produce viable pollen. As a result, its fruit remains seedless even in the presence of cross-pollination with other nearby varieties. This agronomic advantage enables growers to avoid certain cultivation constraints designed to preserve seedlessness.

Taking the view that Tang Gold was an essentially derived variety of Nadorcott, Nador Cott Protection SAS brought infringement proceedings against Asda, a distributor of these mandarins in the United Kingdom.

The proceedings : from the application for a stay to the trial on the merits

In response to the infringement action brought against it, Asda applied to the UK Plant Variety Rights Office (PVRO) for the revocation of the plant breeder’s right relating to the “Nadorcott” variety. This application was based on several grounds, including lack of novelty, lack of distinctness and a challenge to entitlement to the right.

At the same time, Asda asked the Patents Court to stay the proceedings pending the PVRO’s decision on the validity of the title. This application for a stay was rejected. The UK court therefore held that the infringement action could continue without waiting for the outcome of the revocation proceedings.

The trial on the merits was accordingly held in November 2025 before the Patents Court. At that stage, no decision had yet been issued by the PVRO on the validity of the “Nadorcott” plant breeder’s right.

The concept of an essentially derived variety (EDV) under UK law

Legal definition : the three cumulative conditions under section 7 of the Plant Varieties Act 1997

UK law defines EDVs autonomously from EU Regulation No. 2100/94 of 27 July 1994 on Community plant variety rights. Section 7(3) of the Plant Varieties Act 1997 requires three cumulative conditions to be met for a variety to be regarded as essentially derived from an initial variety :

• it must be predominantly derived from the initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of that initial variety ;
  • it must be clearly distinguishable from the initial variety by one or more characteristics capable of precise description ;
  • except for the differences resulting from the act of derivation, it must conform to the initial variety in the expression of the essential characteristics that result from the genotype or combination of genotypes of that initial variety.

The Nadorcott/Tang Gold case is one of the first judicial decisions to examine in depth the application of these criteria to a commercially strategic fruit variety.

Essential characteristics at the heart of the debate

The issue of pollen fertility and seed formation

The debate focused mainly on the consequences of Tang Gold’s failure to produce viable pollen.

Unlike Tang Gold, the Nadorcott variety produces fertile pollen capable of fertilising nearby varieties and causing seeds to appear in the fruit.

To preserve the variety’s commercial qualities, growers must therefore implement various preventive measures, such as isolating plantations or installing insect-proof nets.

Tang Gold removes this constraint, since its fruit remains seedless regardless of growing conditions.

The method for identifying essential characteristics

Relying in particular on the UPOV Explanatory Notes, the judge recalled that an essential characteristic must be assessed by reference to its importance for the economic actors concerned, whether growers, distributors or consumers.

The reasoning adopted is particularly instructive. The court did not regard the absence of viable pollen as a mere ancillary improvement to Nadorcott. It considered that this property provided growers with a substantial agronomic and economic advantage, to the extent that it constituted an essential characteristic in its own right.

Accordingly, Tang Gold does not merely reproduce the essential characteristics of Nadorcott. It introduces an additional essential characteristic that substantially alters the profile of the variety.

This analysis led the Patents Court to conclude that Tang Gold does not meet the definition of an essentially derived variety within the meaning of the Plant Varieties Act 1997.

The judge nevertheless noted that a different conclusion might have been reached under Regulation (EC) No. 2100/94 on Community plant variety rights, the wording of which differs significantly from the UK legislation.

Finally, the court expressly rejected any consideration of the cost or importance of the investments made to develop Tang Gold, as such factors have no bearing on the legal classification of an EDV.

The cascade principle and the protection of harvested material

Mechanism and purpose of the cascade principle

The judgment also provides important clarification on the application of the so-called “cascade” principle set out in section 6(3) of the Plant Varieties Act 1997.

This mechanism allows the holder of a plant breeder’s right to act in respect of harvested material where the holder has not had a reasonable opportunity to exercise its rights upstream in relation to propagating material.

Historically designed to combat the importation of cut flowers from countries that did not recognise plant breeders’ rights, this mechanism now plays a major role in the international trade in fruit and vegetables.

Imports from countries without protection

Some of the Tang Gold mandarins marketed by Asda came from Peru, Chile and Egypt, territories in which the Nadorcott variety did not benefit from any protection.

The judge adopted a restrictive interpretation of the concept of “unauthorised use”. In the judge’s view, a use can only be characterised as unauthorised in a territory where the plant breeder’s right is actually in force.

As a result, the production and marketing of fruit in a country where there is no protection cannot be regarded as infringing, even where that fruit is subsequently imported into the United Kingdom.

This analysis is based on the UPOV Explanatory Notes published in 2013, although those notes are not binding.

Divergences between UK law, EU Regulation and UPOV

Beyond the dispute between Nadorcott and Tang Gold, the decision highlights the growing risk of fragmentation in plant variety rights law.

The judge himself acknowledged that the outcome of the dispute might have been different under Regulation (EC) No. 2100/94, which applies within the European Union. This divergence is particularly significant both in relation to the definition of essentially derived varieties and the scope of protection granted to harvested material.

This issue is all the more topical because an expert study published by UPOV in January 2026 adopts an interpretation that differs substantially from that adopted by the Patents Court regarding the concept of “unauthorised use” and the interpretation of the cascade principle.

The decision therefore illustrates the growing importance of an international plant variety protection strategy. In a legal environment marked by divergences of interpretation between different protection systems, the geographical scope of rights and the way in which they interact have become decisive factors in securing and exploiting varietal innovations.

Conclusion

The judgment in Nador Cott Protection SAS v Asda Stores Ltd is a major decision in the field of plant variety rights. For the first time, a UK court carried out an in-depth analysis of the concept of an essentially derived variety as applied to a high-value commercial fruit variety.

Beyond the specific case of the Nadorcott and Tang Gold varieties, the decision recalls that EDV status cannot result from mere genetic similarity or common origin. It requires the precise identification of the essential characteristics of the initial variety and an assessment of whether those characteristics remain effectively expressed in the allegedly derived variety. The introduction of a new essential characteristic with its own agronomic or economic value may therefore prevent classification as an EDV.

The judgment also provides important clarification on the application of the cascade principle and on the territorial scope of plant breeders’ rights, while highlighting the divergences of interpretation that may exist between UK law, EU law and recent UPOV work.

In a context of increasing internationalisation of agricultural and horticultural supply chains, this decision underlines the importance for breeders of implementing a coherent global protection strategy, taking into account both the choice of territories in which protection is sought and the need to anticipate differences of interpretation between legal systems.

Dreyfus & Associés assists its clients with complex issues relating to plant variety rights, providing tailored advice and comprehensive operational support for the implementation and optimisation of protection strategies that incorporate all intellectual property tools.

Dreyfus & Associés is partnered with a global network of Intellectual Property attorneys.

Nathalie Dreyfus, with the support of the entire Dreyfus team.

Q&A

1. What methods are used to determine if a variety is essentially derived ?

Experts combine genetic analysis, morphological tests, and agronomic trials, comparing genotype, fidelity of essential characteristics, and distinctiveness of observable traits, in line with UPOV criteria and local laws.

2. Could the absence of viable pollen in Tang Gold be a standalone commercial advantage ?
Yes. The lack of viable pollen reduces contamination risk for neighboring crops and simplifies the production of seedless fruits, providing a distinctive advantage for producers and distributors, independently of legal disputes.

3. Why do some countries like Peru, Chile, and Egypt not protect Nadorcott ?

Protection of plant varieties varies by national legislation and UPOV membership. Some countries have not implemented variety rights for certain species or prioritize free access to varieties to support local agriculture and exports.

4. What international strategies do breeders use to protect a variety like Nadorcott ?

Breeders file rights on the variety in multiple countries, monitor imports and sales, enter into licenses or commercial agreements, and use genetic analysis to detect potential derived varieties.

5. What is the difference between UK plant variety rights and EU law post-Brexit ?

Since 1 January 2021, the UK has an autonomous plant variety rights regime, administered by the PVRO. The wording of the Plant Varieties Act 1997 differs from Regulation (EC) No 2100/94, notably regarding the EDV definition. CPVO decisions are not binding on UK courts, and vice versa, creating a tangible risk of divergent interpretations.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific situations nor to constitute legal advice.

Introduction

AI-assisted coding is emerging as one of the most profound technological disruptions of this decade. Platforms such as GitHub Copilot, Cursor and Claude Code now allow an AI agent to design, structure and deliver a complete software package based solely on high-level instructions. This technical acceleration raises a strategic legal question: can a company truly protect, under copyright law, software created with the assistance, or even under the impetus, of AI agents?

In a context where AI programming tools are becoming genuine production partners, legal departments and technical teams must anticipate a major risk: losing, in whole or in part, the protection attached to the software assets they believed they controlled.

The legal framework for copyright protection of software

The European foundation: the software directive

Under European Union law, copyright protection for software is based on Directive 2009/24/EC on the legal protection of computer programs, commonly referred to as the “Software Directive”. This text requires Member States to grant protection to “the expression in any form of a computer program”. The wording is deliberately broad: it covers both source code and object code, as well as preparatory design material, functional specifications, architectures and technical documentation provided that these elements reflect genuine creative work.

The central criterion remains originality, as interpreted by the Court of Justice of the European Union (CJEU).

According to settled European case law since the judgment in Bezpečnostní softwarová asociace (C-393/09, BSA, 22 December 2010), and as confirmed in the Painer cases, of December 1, 2011 (C-145/10) “a computer program is protectable only if its author has exercised “free and creative choices” in the way the software’s functionalities are expressed.”

Elements whose form is entirely dictated by technical constraints, a sorting equation or a standardized compression protocol cannot, in themselves, claim protection.

Post-Brexit continuity in the United Kingdom

Since the United Kingdom’s withdrawal from the European Union, UK copyright law has remained aligned with these principles. The Court of Appeal of England and Wales confirmed in THJ v Sheridan that originality, within the meaning of the Copyright, Designs and Patents Act 1988 (CDPA), still requires the work to be the “author’s own intellectual creation”, in line with European standards. At this stage, no substantial divergence appears to be emerging between continental and UK law on this issue.

Protection of non-code elements: interface and assets

Beyond the code itself, the visual, textual and sound elements that make up the user interface benefit from their own protection regime. In Infopaq (C-5/08, 16 July 2009), the CJEU held that a work is protected where it is the “author’s own intellectual creation”, reflecting the author’s personality and expressed through free and creative choices.

This approach was recently reaffirmed by the CJUE in the Mio judgment of December 4, 2025 (C-580/23, 2024), which clarified the contours of originality for graphic and sound elements.

AI at the heart of the development process: a threat to protection?

Three levels of AI involvement in the software development cycle should be distinguished, as each carry distinct legal consequences:

• The code copilot such as GitHub Copilot or Tabnine: AI suggests code snippets that the developer accepts, modifies or rejects. The creative initiative remains human.
• The conversational development assistant such as ChatGPT or Claude: the developer describes a feature in natural language and receives a complete code block, which is then integrated into an architecture that the developer controls.
• The autonomous coding agent such as Claude Code, Devin or OpenHands: based on a high-level specification, the agent plans, codes, tests and delivers the entire project with minimal human supervision.

It is this third category that concentrates most of the legal risk. Where the agent autonomously determines the software architecture, chooses programming paradigms and writes the thousands of lines of code forming the final product, the human contribution may be reduced to the formulation of an intention which is difficult to characterize as a “free and creative choice” within the meaning of CJEU case law.

The core issue is that the technical performance of code and its originality under copyright law are radically different qualities. Software generated by an AI agent may be syntactically flawless, functionally complete and algorithmically sophisticated, while still lacking any human creative imprint. What it reflects is the statistical combination of the model’s training corpus, not the personality of an author.

Yet it is precisely this imprint the trace of choices that the author could have made differently that forms the basis of protection under Directive 2009/24/EC and settled CJEU case law. AI-optimized code is not necessarily original code in the legal sense: this is the first pitfall that legal teams must learn to identify.

European and U.S. case law on AI-assisted coding

There is not yet any case law directly addressing software entirely coded by AI. The available decisions concern other types of AI-generated works, such as images, logos and lyrics, but they converge around a common criterion that can be directly transposed to software: protection depends on measurable and documented human creative control over the final result.

The U.S. position

In the United States, the applicable framework is set out in the Copyright Act of 1976, whose constitutional basis has been interpreted by the Supreme Court as requiring a human author. The U.S. Copyright Office formalized this position in its revised 2023 guidance, stating that material generated by AI without sufficient human creative control cannot be registered.

The Case of Thaler v. Perlmutterdecided on March 18, 2025, by the District of Columbia Court of Appeals, illustrates this requirement. Although the case did not concern software, but rather a visual work generated by AI, the court’s reasoning is directly relevant to AI-generated code. By recalling that the Copyright Act requires the existence of a human author, the court confirmed that the protection of an AI-assisted creation depends on human intervention in the final result. Transposed to software, this requirement means assessing whether the developer actually designed, selected, structured or modified the generated code, beyond merely submitting a request to the tool.

We invite you to read the dedicated article on this case on our blog.

The European position

The first European decision: Prague Municipal Court, October 11, 2023

In the first European decision on this issue, case no. 10 C 13/2023-16, the Prague Municipal Court refused to grant copyright protection to an image generated using DALL-E by OpenAI. The claimant had written a prompt describing the desired scene in detail; the court held that this was not sufficient to demonstrate that the image was “the unique result of the creative activity of a natural person”. Now final, this decision establishes a principle applicable to any type of AI-generated content: a high-level instruction given to a generative system does not, ipso facto, confer copyright ownership over the resulting output.

The Munich court’s reference decision: no protection for AI-generated logos

In its decision of February 13, 2026 (AG München, 142 C 9786/25, GRUR-RS 2026, 1513), the Munich court refused copyright protection for three AI-generated logos, holding that neither the prompts nor the successive human interventions demonstrated sufficient creative control over the final form of the works. The court nevertheless left open the possibility that protection could arise where human creative elements “dominate” the result to such an extent that it can be regarded as the author’s own original creation. This leaves a narrow path that legal and technical practice must now seek to build upon.

The Frankfurt case: the burden of proving authorship

The decision of the “Landgericht Frankfurt am Main” (Frankfurt am Main Regional Court GRUR-RS 2025, 41927), sheds light on a decisive procedural issue. A lyricist sought an injunction for infringement of her lyrics; the defense submitted expert evidence claiming that the lyrics had been generated by AI. The claimant responded with a simple sworn statement establishing her initial authorship, AI having been used only for subsequent musical adaptation.

The court held that this statement was sufficient at the interim relief stage. This case reveals a major risk for companies: the “AI defense” is becoming a means of challenging copyright, placing an increasing evidential burden on creators, one that only rigorous preventive documentation can anticipate.

Conclusion

The rise of agentic coding forces companies to rethink their approach to software intellectual property, no longer as an automatic protection acquired by the mere fact of development, but as the result of a conscious strategy of human involvement and creative documentation. The transatlantic convergence of European and U.S. case law points to a coherent legal horizon: only measurable and documented human creative control can form the basis of copyright protection for software developed with the assistance of AI.

Dreyfus & Associés assists its clients in managing complex intellectual property matters by providing tailored advice and comprehensive operational support for the full protection of intellectual property rights.

Dreyfus & Associés works in partnership with a global network of specialized intellectual property lawyers.

Nathalie Dreyfus with the support of the entire Dreyfus team.

FAQ

1. Can software generated entirely by AI be protected by copyright in France?
No, under current positive law. Copyright protection requires the work to be the author’s own intellectual creation, reflecting free and creative choices (Article L. 112-1 of the French Intellectual Property Code; Directive 2009/24/EC). Software whose architecture, structure and code have been determined autonomously by an AI agent does not satisfy this criterion. Only the parts of the code that are subject to identifiable and documented human creative interventions may qualify for protection.

2. What is the difference between an AI coding assistant and an autonomous coding agent from a legal standpoint?
The distinction is crucial. A coding assistant, or copilot, suggests code fragments that the human developer selects, adapts and integrates: the chain of creative decisions remains human. By contrast, an autonomous agent performs the entire design and production process based on high-level instructions, reducing the human contribution to the formulation of an intention. The more control AI exercises over the final result, the weaker copyright protection becomes.

3. How can companies preserve copyright when using AI tools?
The key lies in documenting and structuring human interventions. Developers should retain architecture notes, creative decision logs, version histories and prior specifications evidencing their expressive and structural choices. Companies should also define mandatory creative control checkpoints within development processes, where a human developer deliberately and traceably validates or transforms AI outputs.

4. Is U.S. law aligned with European law on the protection of AI-generated software?
Yes. The convergence between U.S. and European law provides a coherent analytical framework for companies operating internationally.

5. Can trade secret protection replace copyright for AI-generated software?
It may constitute a partial and effective substitute for internal-use software. Directive 2016/943/EU on the protection of trade secrets, transposed into French law by Law No. 2018-670 of July 30, 2018, protects any commercial information that has economic value, is not publicly disclosed and is subject to reasonable protective measures. Strictly internal software, whose code is not exposed to third parties, may therefore be protected independently of copyright considerations, provided that appropriate confidentiality measures are implemented, such as restricted access, contractual clauses and a BYOD policy.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific circumstances or to constitute legal advice.

Introduction

When filing a trademark that includes a logo, a recurring question arises: should a description of the visual elements of the sign be included? Although this approach may seem relevant as a means of guiding the interpretation of the logo, it is, in the majority of cases, inadvisable. Indeed, trademark law rests on a fundamental principle: the graphic representation of the sign is, in itself, sufficient to delineate the scope of protection. The addition of a description may, on the contrary, introduce unnecessary complexity and, in certain cases, undermine the validity of the trademark.

The graphic representation as the sole basis of a trademark

Trademark law, both in France and at the European level, requires that the trademark be represented in a clear, precise and objective manner. This requirement is codified in the French Intellectual Property Code and is grounded in settled European case law (see CJEU, December 12, 2002, Sieckmann, C‑273/00). The logo, as a graphic representation, must enable the immediate identification of the distinctive elements of the sign: its shape, its typography, its colours where applicable, and its overall arrangement.

Adding a textual description to a logo that is already visually distinct and self-explanatory may appear superfluous. Indeed, superimposing a textual layer upon a visual perception gives rise to unnecessary ambiguity. The cardinal principle of trademark law is to assess the trademark as it is perceived by the relevant public, without being influenced by descriptions. This approach ensures greater legal certainty for the trademark and avoids divergent interpretations.

The legal risks associated with adding a description

The addition of a description, even where drafted with due care and precision, entails several legal risks which may materialise in practical terms in the course of litigation. These risks must be taken into account by any person seeking to maximise the protection afforded to their trade mark.

A source of ambiguity

One of the principal risks arising from the addition of a description is the ambiguity it may create. For example, describing a colour as ‘golden’ without defining it precisely may open the door to divergent interpretations. Similarly, terms such as ‘relief’ or ’embossed’ may give rise to confusion as to the true nature of the logo, particularly where the visual effect of the relief is not clearly perceptible in all reproductions of the logo.

A restrictive effect on the scope of protection

Another significant risk associated with the addition of a description is that it may narrow the scope of trademark protection. By specifying certain elements of the logo, the applicant may limit protection solely to the elements mentioned in the description. For example, a description detailing a logo with specific colours and a particular typography could be construed as restricting trademark protection to those elements alone. Accordingly, any variation not described in the application may fall outside the scope of protection, thereby weakening the proprietor’s position in the event of infringement.

A litigation tool for third parties

Finally, the description of a logo may become a fertile ground for challenge by competitors. A competitor may seize upon an inconsistency between the description and the image of the logo in an attempt to undermine the validity of the trademark. Discrepancies between the text and the graphic representation may thus be relied upon to call into question the protection afforded to the trademark and to introduce uncertainty as to the outcome of the litigation. These arguments, while often characterised as formal in nature, may have a real impact on the legal robustness of the trademark.

The key lesson from recent case law : Babek International Limited v Iceland Foods Limited

The case Babek International v. Iceland Foods handed down by the UK High Court of Justice on October 23, 2025, perfectly illustrates the risks associated with the addition of a description in a trademark application. In that case, the proprietor of the trademark had accompanied its logo with a description referring to colours and an ’embossed’ (relief) effect.

The defendant relied on this description to challenge the validity of the trademark, highlighting an inconsistency between the description and the graphic representation of the logo. Although the defendant’s arguments were not upheld at first instance, the case nevertheless raised fundamental questions regarding the legal impact of adding descriptions to trademark applications.

Analysis of the court of appeal’s judgment

One of the legal errors identified by the Court of Appeal in this case concerned the application of a ‘capacity to distinguish test’ an erroneous criterion used by the court of first instance to assess the description of the trademark. The court had suggested that the colour of a logo should be specified in detail (for example, by reference to a Pantone code) where that colour was essential to the trademark’s capacity to distinguish itself from others. However, the Court of Appeal rejected this approach, holding that the validity of a trademark did not depend solely on the precise specification of colours, but rather on compliance with three principal conditions:

• (1) constituting a sign;
• (2) being capable of graphic representation; and
• (3) being capable of distinguishing goods or services.

This reinforces the view that the graphic representation is, in itself, sufficient to define the scope of protection, and that descriptions may create greater legal risks than they provide additional legal certainty.

Exceptional cases where a description may be useful

Notwithstanding the risks outlined above, there are situations in which a description may be justified. However, in such cases, it must be used with caution and must remain strictly functional, without seeking to introduce unnecessary detail.

Non-traditional trademarks

For non-traditional trademarks, such as sound, motion or multimedia trademarks, the graphic representation alone may be insufficient to fully describe the sign. In such cases, a supplementary description may be necessary to explain the distinctive character of the sign. For example, a sound trademark or a colour trademark may benefit from additional description to clarify its use or its distinctive effect.

Claims to specific colours

Where colour plays a crucial role in the identity of the trademark, it may be relevant to add a description specifying the shades used, particularly where they are codified or standardised. Even so, excessive detail should be avoided, and the description should be limited to what is clear and precise.

Particular configurations of complex trademarks

Finally, in the case of highly complex logos combining multiple distinctive elements (for example, geometric shapes, lighting effects, etc.), it may be useful to add a description clarifying certain technical aspects of the logo, so as to ensure comprehensive protection.

Our strategic recommendations for a secure filing

In the context of a trademark filing with a logo, it is essential to adopt a strategic approach that prioritises simplicity and clarity. Our principal recommendations are as follows:

1. Assess the visual intelligibility of the logo: The logo must be immediately understood by anyone who sees it, without the need for a description. If this is not the case, a description may be considered, but it should be kept very concise and precise.
2. Ensure consistency with the visual: Before adding a description, it is necessary to ensure that it does not risk impairing the coherence of the logo or introducing ambiguities.
3. Anticipate legal risks: Adding a description may be turned against the applicant. It is therefore important to ask: ‘Could this description limit our protection?’ If the answer is yes, it is better to refrain from including one.
4. Prioritise legal robustness: The application should seek to protect the trademark in its entirety, without reducing the scope of that protection to overly specific elements. Opposition or invalidity proceedings may indeed rely on any formal weakness in the initial application.

Conclusion

Ultimately, the answer to the question ‘Should you add a description when filing a trademark  with a logo?’ is clear: no, except in exceptional circumstances. The graphic representation is, in principle, sufficient to ensure effective legal protection, whereas a description may introduce unnecessary limitations. Trademark law rests on a global visual assessment, and a textual interpretation may often be detrimental to the clarity and effectiveness of the protection.

The Babek case perfectly illustrates the legal dangers associated with adding a description: a description, however apparently straightforward, may give rise to costly proceedings and more rigorous scrutiny of the trademark, with risks of ambiguity that may undermine its validity. In cases of doubt, it is therefore recommended to limit the application to the graphic representation alone.

Dreyfus & Associés assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus & Associés works in partnership with a global network of attorneys specializing in Intellectual Property.

Nathalie Dreyfus with the support of the entire Dreyfus team

Q&A

1. In what circumstances may a trademark be refused on account of an incorrect description?

Where the description added is ambiguous or inconsistent with the graphic representation of the trademark, this may lead to a refusal. For example, a description suggesting three-dimensional characteristics where the logo is two-dimensional may constitute a ground for refusal. The competent authorities will examine the consistency between the text and the image to ensure that the trademark is properly defined and that it satisfies the criteria of clarity and precision required for registration.

2. Does the absence of a description reduce the protection afforded to a figurative trademark?

No. As a matter of principle, the protection afforded to a figurative trademark is based on the visual representation as filed. Intellectual property offices and courts primarily assess the overall impression produced by the sign, irrespective of any textual description.

3. Can a description added when filing a trademark be relied upon against the proprietor in infringement proceedings?

Yes. Where the description confines the trademark to very specific elements, such as precise colours or particular visual effects, a defendant may argue that the allegedly infringing sign does not faithfully reproduce the elements described and therefore falls outside the scope of protection. The description may thus become a double-edged sword: it can narrow the scope of protection in offensive proceedings just as much as it may weaken the mark in defence.

4. Does the description of a trademark affect the court’s assessment in opposition proceedings?

In opposition proceedings, the registration office compares the marks as they are perceived visually, phonetically and conceptually by the average consumer. A restrictive description may lead the examiner or board of appeal to limit the comparison to the elements expressly described, potentially reducing the prospects of success of the opposition.

5. Can a description strengthen the distinctive character of a trademark?

In practice, this is rarely the case. Distinctive character is assessed primarily by reference to the sign itself and the perception of the relevant public. A description does not automatically enhance the legal distinctiveness of a logo.

This publication is intended for general public guidance and to highlight issues. It is not intended to apply to specific circumstances or to constitute legal advice.

Introduction

The judgment in Case T-159/24 of September 24, 2025, delivered by the General Court of the European Union in relation to the ‘Cripps Pink’ and ‘Cripps Red’ varieties, constitutes an important decision in the field of plant variety rights (PVRs). While it does not rule on the nullity of the rights at issue, it validates a decisive step : the opening of nullity proceedings based on the existence of serious doubts as to novelty within the meaning of Regulation (EC) No 2100/94.

Situated at the intersection of plant breeding and the international circulation of plant material, this decision highlights a central issue in plant variety law : reconciling early-stage dissemination practices, often necessary for agronomic development, with the requirement to preserve commercial novelty.

The ruling recalls that insufficiently controlled dissemination of a variety, or of its plant material, may, where it occurs in a context of economic exploitation, be regarded as novelty-destroying.

Legal framework applicable to plant varieties in the European Union

The European plant variety rights regime is based on Council Regulation (EC) No 2100/94 of July 27, 1994 , which establishes a Community protection title producing uniform effects throughout the territory of the European Union. This system is administered by the Community Plant Variety Office (CPVO), which is responsible for examining applications and managing rights. The Regulation thus establishes an autonomous regime for the protection of plant varieties, distinct from patent law both in terms of its conditions and its subject matter, even though these two systems coexist in practice in the field of agronomic and biotechnological innovation.

This autonomy of plant variety rights is particularly important where the variety has already circulated before the filing of the application for protection. In practice, trials, transfers of plant material or exchanges with partners may take place before the title is granted. At what point can such prior dissemination, apparently preparatory or experimental in nature, be regarded as a making available capable of destroying the novelty of the variety ?

To answer this question, it is necessary to return to the conditions governing the validity of the title. As a matter of substance, the validity of a protection title requires, in particular, that the variety be :

• distinct (Article 7),
• uniform (Article 8),
• stable (Article 9),
• and new (Article 10).

These four criteria are known by the acronym DUS + N.

As regards novelty, Article 10 of the Regulation does not adopt a logic of absolute novelty comparable to that of patent law. It follows a logic of commercial novelty : a variety is deemed to be new if, at the filing date, its variety constituents or harvested material have not been sold or otherwise disposed of to others, by the breeder or with his consent, for the purposes of exploitation of the variety, more than one year before that date within the European Union, or more than four years outside the Union, this period being extended to six years for trees and vines. This framework reflects the structure of the 1991 UPOV Convention , which remains the international matrix of plant variety rights.

This approach explains why the analysis does not focus solely on the existence of prior circulation of the plant material, but also on the concrete circumstances in which it took place : the purpose of the transfer, the contractual framework, the degree of control retained by the breeder and the economic context of the dissemination.

In the case of apple varieties protected in the late 1990s, the economic stakes of a potential challenge to the title therefore remain real, even where the protection is approaching the end of its term.

Nullity procedure before the CPVO

The application for a declaration of nullity is first examined by the CPVO, acting as the competent administrative authority at first instance. The Office assesses the evidence submitted by the applicant and may, depending on the stage of the procedure, either refuse to open an examination on the merits or initiate such an examination in order to determine whether the conditions for the validity of the right were in fact satisfied at the time it was granted.

The CPVO’s decision may then be appealed before the Board of Appeal of the CPVO. This Board, which is the Office’s internal administrative appeal body, reviews the legality and merits of the contested decision. It may uphold the CPVO’s decision, annul it, exercise the powers of the Office itself, or remit the case to the competent body of the CPVO for further action.

Finally, the decision of the Board of Appeal may be challenged before the General Court of the European Union. The General Court then carries out judicial review of the decision of the Board of Appeal.

Facts and procedure in case T-159/24

‘Cripps Pink’, marketed under the Pink Lady® brand, and ‘Cripps Red’, marketed under the Sundowner® brand, were developed by John Cripps from a cross between ‘Golden Delicious’ and ‘Lady Williams’ made in 1973. Community plant variety rights were subsequently granted by the CPVO in 1997 for ‘Cripps Pink’ and in 1998 for ‘Cripps Red’.

The difficulty lies in the circumstances in which those varieties circulated before they were protected in Europe. At the time, Australia did not yet have a regime comparable to the European system for the protection of plant varieties. The debate therefore concerned the characterisation of the transfers of plant material that had taken place before the critical date : were they merely for testing or commercial evaluation, or did they amount to making the varieties available for exploitation, capable of destroying their novelty ?

This issue was not new : it had already given rise to an initial nullity procedure, which had, however, been unsuccessful. In 2014, Pink Lady America LLC sought a declaration of nullity of the Community plant variety right relating to ‘Cripps Pink’, arguing that the variety was not new. By judgment of 24 September 2019 in Case T-112/18, the General Court dismissed the action brought against the decision of the Board of Appeal of the CPVO of 14 September 2017 in Case A 007/2016. The evidence produced at that time had led to the conclusion that the earlier transfers of plant material had taken place within a framework of testing or commercial evaluation, without amounting to commercial exploitation capable of destroying novelty.

Case T-159/24 follows on from that first dispute. In the new proceedings, Teak Enterprises Pty Ltd was the holder of a variety known under the denominations ‘Barnsby’ or ‘PLBAR B1’, presented as a mutation of ‘Cripps Pink’ and recognised as an essentially derived variety, meaning that its commercialisation depended on the authorisation of the holder of the initial variety.

In May 2021, the CPVO refused to open nullity proceedings against ‘Cripps Pink’ and ‘Cripps Red’, taking the view that the evidence produced did not give rise to serious doubts as to their novelty. That decision was, however, annulled by the CPVO Board of Appeal on 12 January 2024 in Joined Cases A 019/2021 and A 020/2021. The Western Australian Agriculture Authority, holder of the rights at issue, then brought an action before the General Court of the European Union.

By its judgment of 24 September 2025 in Case T-159/24, the General Court dismissed that action. It did not, however, declare the Community plant variety rights invalid. The scope of the judgment is more limited, but essential : the General Court confirms that the new evidence produced by Teak Enterprises was capable of giving rise to serious doubts as to the novelty of the varieties, thereby justifying the opening of nullity proceedings.

The issue therefore focuses on the condition of novelty. For apple trees, the grace period applicable to acts carried out outside the European Union is six years, meaning that the critical date was set at 29 August 1989. Any sale or making available to third parties, by the breeder or with his consent, for purposes of exploitation before that date was therefore capable of affecting the validity of the rights.

The General Court’s reasoning : novelty, implied consent and “serious doubts”

The Court first rejected the argument that the CPVO was bound by the judgment in case T-112/18. That earlier case was not based on the same evidence and concerned only ‘Cripps Pink’, whereas the new application also concerned ‘Cripps Red’.

The Court then recalled that nullity proceedings involve two distinct stages. At this stage, the issue was not yet to declare the rights null and void, but only to determine whether the evidence submitted gave rise to “serious doubts” as to their validity.

As regards the burden of proof, the Court confirmed that it lies with the applicant for a declaration of nullity. However, at the stage of “serious doubts”, the applicant is not required to fully establish the invalidity of the right : it must only produce evidence that is sufficiently clear, specific and substantiated to justify an examination of the merits by the CPVO. According to the Court, the new evidence relied on by Teak Enterprises met that requirement.

The judgment also provides an important clarification regarding the breeder’s consent. Such consent may be inferred from the circumstances : the absence of a written licence is therefore not sufficient to rule out consent where the conditions under which the plant material was supplied reveal a genuine absence of restrictions.

Finally, the Court endorsed the analysis that certain supplies could go beyond the framework of mere trials and form part of a process of dissemination for economic purposes. It was precisely this uncertainty that justified the continuation of the nullity proceedings.

Implications for breeders, right holders and licensees

For breeders, this decision highlights the importance of a rigorous legal framework governing the dissemination of plant material from the earliest stages of development. The conditions of trials, transfers of material and usage restrictions must be clearly defined and documented.

For existing right holders and licensees, the judgment underscores that a right is not definitively secure where new evidence emerges. A favourable prior decision does not preclude a new challenge if it is based on a different evidentiary record.

In a sector where proof often relies on historical practices and fragmented documentation, traceability and proper record-keeping are essential.

Conclusion

The judgment in Case T-159/24 does not declare the plant variety rights relating to the ‘Cripps Pink’ and ‘Cripps Red’ varieties null and void. It does, however, confirm that the validity of those rights may be re-examined where new evidence gives rise to serious doubts as to compliance with the novelty requirement.

The main contribution of the decision lies in the analytical method adopted by the General Court. Novelty is not assessed in the abstract, but by reference to the specific circumstances in which the plant material was disseminated before the application was filed. In particular, the Court takes into account the purpose of the transfer, the existence or absence of restrictions on use, the degree of control retained by the breeder, and the economic context of the dissemination.

Dreyfus & Associés assists its clients in addressing complex issues relating to plant variety rights, providing tailored advice and comprehensive support in implementing and optimising protection strategies across all areas of intellectual property (plant variety rights, patents, trademarks and know-how).

Dreyfus & Associés works in partnership with a global network of specialized intellectual property lawyers.

Nathalie Dreyfus with the support of the entire Dreyfus team.

Q&A

1. Is my plant variety right at risk after this judgment, even if it has already been upheld once ?

Potentially, yes. The central contribution of the judgment in Case T-159/24 is precisely that a favourable prior ruling does not prevent a new challenge, provided it is based on a distinct case file : new witnesses, new instances of dissemination, broader scope. ‘Cripps Pink’ was successfully defended in 2019 (Case T-112/18); six years later, it faces a substantive nullity examination. No right is definitively shielded as long as new evidence may emerge.

2. What is the concrete difference between “experimental trials” and “commercial exploitation” ?

The distinction does not depend on the label attached to the operation but on the concrete conditions under which the material is made available. An experimental trial requires strict framing : limited geographical scope, restricted audience, written prohibition of replanting and marketing, and documented traceability of transfers. Conversely, transfers made without restriction to growers oriented towards commercialisation amount to economic dissemination, even if the parties label them as trials. In the ‘Cripps Pink’ case, it is precisely these factual conditions that tipped the analysis in 2025.

3. The breeder’s implied consent : what does it change in practice ?

Everything. Before this judgment, one could reasonably assume that the absence of a formal licence was sufficient to exclude the breeder’s consent. The General Court now accepts that consent may be inferred from the circumstances : unrestricted transfers, lack of patent or other intellectual property protection, broader context oriented towards economic exploitation. For breeders, this means that contractual silence is no longer protective : what is not expressly prohibited may be interpreted as tacitly authorised.

4. What are the concrete risks for licensees and operators if nullity is ultimately granted ?

For Community plant variety rights, nullity has retroactive effect (Article 20 of Regulation No. 2100/94 ) : the right is retroactively deprived of its effects. The practical consequences are significant : loss of the exclusive exploitation monopoly, weakening of ongoing licence agreements, possible challenge to royalties already collected, and exposure of operators to actions from third parties who had been subject to the monopoly. Anticipating the risk of nullity when drafting contracts, through warranty clauses, risk-sharing mechanisms or royalty adjustment provisions, has become an operational necessity, not a sophistication.

5. How to secure a variety breeding programme effectively, starting today ?

Four structuring reflexes: (i) formalise in writing any transfer of plant material, even to trusted partners, expressly prohibiting replanting and marketing; (ii) maintain a dated and exhaustive register of transfers (recipient, volume, purpose, restrictions); (iii) anticipate the protection strategy, CPVO filing, possible articulation with a patent, before any economically oriented dissemination; (iv) periodically audit the existing portfolio to identify documentary weaknesses before a third party does it for you.

This publication is intended for general public guidance and to highlight issues. It is not intended to apply to specific circumstances or to constitute legal advice.

Introduction

The valuation of intangible assets consists in identifying, organising and assessing the non-physical elements that contribute to the economic value of a business. The issue is straightforward: what has not been identified, protected and documented is difficult to value.

A serious valuation exercise therefore does not consist in arbitrarily assigning an attractive figure to an asset. It requires demonstrating that the asset exists, that it is duly owned by the company, that it is enforceable against third parties, that it has economic relevance, and that it is capable of generating or securing revenue.

Identifying intangible assets that can truly be valued

The first step consists in drawing up an inventory of the company’s intangible assets. Not all such assets are based on the same legal foundation, and not all are valued in the same manner.

Certain assets are protected by industrial property titles. This is the case for trademarks, patents and designs rights.

• A trademark may embody the company’s reputation, customer trust and commercial distinctiveness. Its value depends, in particular, on its distinctiveness, the territory in which it is protected, its reputation, its effective use and its ability to support a commercial strategy.
• A patent, for its part, may constitute a strategic asset where it protects a key technology, limits competitors’ market entry or enables revenue to be generated through licensing.
• Designs rights, in turn, may also constitute valuable assets where they protect the appearance of a product, its design, lines or aesthetic features, thereby contributing to its commercial appeal and differentiation on the market.

Other assets fall more within the scope of copyright, contract law or internal documentation. Software, applications, algorithms, interfaces, databases, graphic content and original creations may represent significant value, particularly in the technology and digital sectors. Their valuation nevertheless requires verification of ownership of the rights, especially where the creations have been produced by employees, freelancers, service providers or partners.

Finally, certain assets are not necessarily registered but may nevertheless be essential to the company’s business. Know-how and trade secrets, including internal methods, commercial data, protocols, formulas, pricing strategies and customer information, may constitute a decisive competitive advantage. Their value then depends on their confidential nature, their economic usefulness and the measures implemented to preserve their confidentiality.

Legally securing rights prior to any valuation

Prior to any valuation, intellectual property due diligence is essential. An investor, acquirer or partner does not merely value an idea, a technology or a trademark: they value an asset that the company can effectively exploit, defend and transfer.

This review must make it possible to answer several key questions. Is the company indeed the holder of the rights? Are the trademarks, patents, designs registered in the relevant territories? Do the employment, service provision or assignment agreements contain appropriate clauses? Do licences granted to third parties restrict the freedom to operate? Are trade secrets subject to sufficient protection measures?

This step is decisive. High-performing software developed without a valid agreement, a trademark used but not registered in the appropriate territories, or strategic know-how insufficiently protected may lose a substantial part of its value during due diligence.

Conversely, clear and comprehensive documentation strengthens the credibility of the valuation. It demonstrates that the company has control over its intangible assets and is able to derive a secure economic advantage from them.

Choosing an appropriate valuation method

Once the assets have been identified and secured, their valuation may be considered. There is no single method: the approach adopted depends on the nature of the asset, its stage of development, its exploitation, its market and the company’s strategy.

• The cost approach

This method consists in assessing the investments required to create, develop or replace the asset. It may take into account research and development expenditure, design costs, filing fees, professional fees, technical development costs and market launch costs.

This method is useful for recent assets or assets that are still only marginally exploited, but it has one limitation: the cost of creation does not always reflect the asset’s actual economic value. A costly patent may prove difficult to exploit, whereas a trademark created with limited resources may become highly profitable.

• The market approach

This method consists in valuing an intellectual property asset by comparing it with transactions involving similar assets, such as patent assignments, trademark licences, software valuations, franchise agreements or comparable transactions in the same sector. This method is based on the idea that the financial terms observed for a comparable asset may serve as a reference for assessing the value of the asset being valued.

The comparison must, however, be carried out with caution. The assets used as references must have similar characteristics, particularly with regard to the business sector, the territory concerned, the duration of the rights, the degree of exclusivity granted, the reputation of the asset, its stage of development and its commercial potential.

In practice, however, its application may be difficult, as the financial terms of licence or assignment agreements are often confidential.

• The income approach

This method consists in assessing the future income that the asset may generate or secure. It may include licensing royalties, cost savings, additional margins or commercial exclusivity. This method is often the most meaningful for investors, as it directly links the intangible asset to future economic performance. It nevertheless requires robust, documented and prudent assumptions.

In practice, these methods may be combined. The valuation must remain consistent with the legal, economic and commercial reality of the asset concerned.

Turning intangible assets into revenue

The valuation of intangible assets is not solely an accounting or financial exercise. It also makes it possible to structure their exploitation and turn them into sources of revenue.

• Licensing

A licence enables the company to retain ownership of the asset while authorising a third party to exploit it. It may be exclusive or non-exclusive, and may be limited to a territory, a duration, a sector or a category of products. Remuneration may take the form of a lump sum, royalties proportional to turnover, guaranteed minimums or a combination of these mechanisms.

• Assignment

An assignment, by contrast, enables the ownership of the asset to be transferred to a third party. It may generate immediate revenue but entails a loss of control. It should therefore be considered with caution, particularly where the asset concerned is central to the company’s strategy.

Other mechanisms may also be used to exploit the value of intangible assets. Co-branding may bring together two trademarks in order to create a joint offering. Franchising, for its part, is based on the structured provision of a set of intangible assets enabling the franchisee to reproduce a commercial concept, such as trademarks, know-how, commercial methods or distinctive signs, for example.

In all cases, valuation requires a rigorous contractual framework. An intangible asset creates lasting value only if the conditions governing its exploitation are clearly defined and legally secured.

Conclusion

The valuation of intangible assets is based on a progressive approach. It is first necessary to identify the assets that may be valued, then to secure their ownership and enforceability, before selecting an appropriate valuation method and considering their monetisation.

For an innovative company, this approach can make the difference between an asset that is difficult to defend and a genuine lever for growth, financing and negotiation.

Dreyfus law firm assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus law firm works in partnership with a global network of attorneys specializing in intellectual property.

Nathalie Dreyfus with the support of the entire Dreyfus team.

Q&A

1. Can open-source components reduce the value of software?

They may do so depending on the licences used. Certain open-source licences impose specific obligations, particularly with respect to redistribution, attribution of authorship or making the source code available. Poor management of these licences may create legal risk and reduce the value of the software during due diligence.

2. Can the departure of an employee affect the value of an intangible asset?

Yes, particularly where key know-how or knowledge is not sufficiently documented or protected. If the asset depends solely on one individual, its value is more fragile. The company must therefore organise internal knowledge transfer, confidentiality and the preservation of essential elements.

3. How can an intangible asset be prevented from losing value over time?

Rights must be kept in force, titles renewed where necessary, unauthorised uses monitored, documentation updated, contracts adapted and the asset continuously exploited. An intangible asset that is not properly maintained may gradually lose both its legal and economic value.

4. Can an overvaluation be risky?

An excessive or insufficiently documented valuation may result in a loss of credibility with investors, acquirers or partners. It may also be challenged in the context of a financial transaction. The valuation must therefore remain prudent, justified and consistent with the available data.

5. Can intangible assets be used as collateral or as a financing lever?

In certain circumstances, yes. Some intangible assets may be taken into account in financing transactions, pledges or asset-structuring arrangements. However, their acceptance depends on their demonstrable value, legal certainty and potential liquidity.

The purpose of this publication is to provide general guidance to the public and to highlight certain issues. It is not intended to apply to particular situations or to constitute legal advice.

Introduction

Blockchain technology is gradually establishing itself within intellectual property litigation strategies. Tamper-proof timestamping, transaction traceability, immutable recording of a creation or prior use: the promises are compelling. Yet the probative value of such records remains conditional and subject to strict procedural requirements that neither technology nor enthusiasm can circumvent.

Blockchain: what the case law says

Under French law, civil evidence is unrestricted in principle: any means of proof is admissible, subject to the judge’s sovereign assessment of its probative weight. Blockchain is no exception: it is neither presumed reliable nor automatically disregarded.

1.1 Progressive recognition by the courts

The evidentiary value of blockchain is beginning to be recognised by French courts, particularly where the timestamp is corroborated by other evidence in the case file. The Marseille Judicial Court (1st Civil Chamber, case no. 23/00046) recently confirmed this in a judgment dated March 20, 2025, while stopping short of granting blockchain automatic evidentiary force.

For a detailed analysis of this decision, see our dedicated article: Is blockchain evidence recognised in copyright matters?

1.2 The applicable legal framework

French law has progressively recognised blockchain technology through the mechanism of the shared electronic recording device. Following an initial recognition of minibons by Ordinance no. 2016-520 of April 28, 2016, Ordinance no. 2017-1674 of December 8, 2017 admitted the inscription and transfer of certain financial securities on blockchain, a solution subsequently consolidated by the PACTE Act of May 22, 2019.

In the field of intellectual property, however, no specific legislative provision recognises autonomous probative value or constitutive effect for blockchain records. Blockchain essentially constitutes a timestamping and traceability tool whose probative value remains subject to the sovereign assessment of the judge.

Structural limitations

2.1 The oracle problem

This limitation, commonly referred to as the “oracle problem”, it admits that the immutability of blockchain does not, in itself, guarantee the reliability of the data recorded on it. If the information stored is inaccurate, falsified or misleading at source, its indelible nature confers no additional probative weight.

Accordingly, the registration of a hash at a given date establishes only that a file existed in that form at that precise moment. It does not demonstrate the originality of the content, the absence of prior rights, or that the person presenting themselves as author or rightholder is in fact the legitimate party. In other words, blockchain primarily demonstrates that content existed at a given date, without establishing, on its own, the ownership of the corresponding rights.

2.2 Enforceability against third parties

A prior right is enforceable against third parties only under the conditions provided for by the applicable legal provisions. However, blockchain does not replace official intellectual property registers. For rights that require registration, such as trademarks, designs or patents, only a formality completed with the INPI, the EUIPO or the competent office can give rise to the right or make it fully enforceable against third parties.

Accordingly, an on-chain record may demonstrate the existence of content at a given date but is insufficient, on its own, to establish an exclusive right enforceable against third parties. In litigation, the absence of a formal title or corroborating evidence may therefore substantially undermine the claimant’s case.

2.3 GDPR and blockchain

The use of blockchain raises significant compliance issues under the GDPR. The CNIL notes in particular that the immutability of data recorded on a blockchain may conflict with certain rights enshrined in the Regulation, most notably the right to erasure under Article 17 GDPR.

The recording of personal data on a public blockchain therefore carries significant risks, since the information stored cannot, in principle, be modified or deleted. Companies using blockchain in the management of their intangible assets must anticipate these constraints by adopting anonymisation mechanisms, data minimisation, or architectural solutions that limit the direct on-chain storage of personal data.

Blockchain and intellectual property: concrete use cases

3.1 Proving the anteriority of a creation

An author, designer or developer may record the hash of their source file on a blockchain prior to any public disclosure. This record, when combined for example with a bailiff’s report, provides a strong body of evidence to demonstrate prior creation in copyright litigation. It supplements, without replacing, the classical tools recommended by the INPI.

Practical example

« A graphic design studio records the digital fingerprint of its mock-ups on blockchain before presenting them to a client. Two years later, the client markets a product incorporating those elements. The blockchain record, submitted to the court together with an expert’s report, contributes to establishing anteriority and facilitates the infringement action »

3.2 NFTs and copyright: do not confuse token transfer with assignment

The transfer of a NFT does not automatically carry with it the assignment of the economic rights in the underlying work. The WIPO states this explicitly: the token evidences a transaction, not an assignment within the meaning of the French Intellectual Property Code. Under French law, any assignment must be express and delimited as to its subject matter, duration and territory (Art. L. 131-3 IPC). The valuation of digital assets must therefore be based on formally executed assignment agreements, not on blockchain records alone.

3.3 Commercial use of a trade mark: documenting through the chain

In revocation proceedings for non-use, the trade mark owner must demonstrate genuine use of their mark during the five years preceding the application. Authenticated screenshots, commercial transactions or licence agreements recorded on-chain may enrich the body of evidence required by the courts. This mechanism is usefully complemented by active portfolio surveillance to detect infringements.

How to strengthen the probative value of a blockchain record?

In practice, a blockchain record has real litigation value only if it forms part of a broader evidentiary strategy. Courts assess the reliability of this type of evidence in light of the circumstances of the case and the corroborating elements produced.

Several precautions can strengthen the credibility of an on-chain record:

• verify the integrity and traceability of the file whose digital fingerprint is recorded;
• prefer widely recognised and audited public blockchains;
• retain the technical elements associated with the transaction (hash, transaction identifier, timestamp certificate);
• supplement the blockchain record with traditional means of proof such as a judicial officer’s report, a deposit with an accredited trusted third party, or evidence of commercial exploitation.

Blockchain should therefore be viewed not as autonomous or self-sufficient proof, but as a tool that consolidates a body of circumstantial evidence.

Conclusion

Blockchain represents a genuine advance in the constitution of evidence in intellectual property matters. Its timestamping, traceability and immutability capabilities usefully reinforce litigation strategies and portfolio management. Nevertheless, its structural limitations serve as a reminder that legal rigour remains irreplaceable. Blockchain is an instrument in the service of proof: it must be designed, built and validated with the same care as any formal legal act.

Dreyfus law firm  assists its clients in managing complex intellectual property cases, offering personalized advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus law firm works in partnership with a global network of attorneys specializing in Intellectual Property.

Nathalie Dreyfus with the support of the entire Dreyfus team.

FAQ

1. What is a hash in blockchain?
A hash is a unique digital fingerprint generated from a file or piece of data. If the content is modified, even slightly, the hash changes automatically. It therefore makes it possible to verify the integrity of a document without revealing its content.

2. Why is blockchain described as “immutable”?
Once a transaction has been validated and recorded in the chain of blocks, it can no longer be modified without altering the entire chain, making it extremely difficult to falsify.

3. How is a transaction validated on a blockchain?
Transactions are validated through consensus mechanisms among network participants, such as Proof of Work or Proof of Stake, before being added to the chain.

4. Why is blockchain used as a timestamping tool?
Because it enables data to be recorded at a precise date in a durable and publicly verifiable manner, which may be useful for proving the existence of content at a given point in time.

5. Does a hash allow the content of the recorded file to be read?
No, the hash is a string of characters that represents the file in mathematical form, without making it possible to reconstruct or consult its content.

The purpose of this publication is to provide general guidance to the public and to highlight certain issues. It is not intended to apply to particular situations or to constitute legal advice.

Introduction

In practice, many companies believe that owning a trademark is sufficient to recover an identical domain name. The Sunshine case on domain names clearly contradicts this assumption. In its decision of June 9, 2009, the French Supreme Court (Cour de cassation) set clear limits: the transfer of a domain name can neither be automatic nor easily obtained through summary proceedings.

In a digital environment where domain names represent strategic assets, this decision requires companies to exercise heightened vigilance and to rethink their protection strategies. We provide here an in-depth analysis of this ruling and its practical implications for rights holders.

Legal background of the Sunshine case

The case reflects a common situation in practice, involving on one side a trademark owner, and on the other, a domain name holder.

In this case:

• A “Sunshine” trademark was registered in 2001 for clothing and footwear
• A third party registered the domain name sunshine.fr in 2005

Considering that this domain name infringed its rights, the trademark owner initiated summary proceedings to obtain its transfer.

By an order dated 13 July 2007, the Paris Tribunal de grande instance refused to order the transfer of the domain name sunshine.fr and also dismissed any claim of abuse in the proceedings.

The judge noted that the domain name had been registered in 2005 for the needs of a company that was indeed incorporated that same year, and above all prior to the entry into force of the decree of 6 February 2007.

He concluded that the alleged disturbance was not manifestly unlawful, which is an essential condition for summary proceedings. The claim was therefore dismissed, and the parties were referred to proceedings on the merits to resolve the issue of the likelihood of confusion with the trademark.

The Paris Court of Appeal ruled in its favour by applying the Decree of February 6, 2007, this text, which entered into force after the registration of the disputed domain name, now requires its holder to demonstrate either a right or a legitimate interest in holding that name.

Relying on this new regulatory requirement, the court found that the holder of the domain name sunshine.fr had failed to provide sufficient evidence of such a right or legitimate interest. It therefore concluded that maintaining the registration was unlawful and upheld the claim, thereby reflecting a strict interpretation of the new rules introduced by the decree. However, this analysis was subsequently overturned.

Prior to the entry into force of this decree, domain name allocation was primarily based on a technical approach governed by the “first come, first served” principle, with little control over prior rights.

Key legal principles established by the Sunshine case and domain names

The Sunshine decision of June 9, 2009, builds on existing case law by reiterating several well-established principles:

A fundamental rule: no retroactive application of the law

The French Supreme Court reaffirmed a core principle of French law under Article 2 of the Civil Code: a new law cannot undermine a situation that was lawfully established. In other words, a domain name that was properly registered before a new regulatory framework took effect cannot be challenged on the basis of that framework.

Trademark ownership does not grant automatic rights over a domain name

The Court of Cassation also notes in this ruling that simply holding a trademark does not automatically entitle one to recover a domain name and is not sufficient to establish infringement.

The Court also referred to Article R. 20-44-45 of the French Postal and Electronic Communications Code, which provides that the registration or renewal of a domain name may be challenged when it infringes third-party rights (notably a trademark), or the holder lacks a right or legitimate interest. A concrete, fact-based analysis is therefore required.

The decision imposes a particularly high evidentiary standard.

The ruling also requires that the a trademark owner seeking the transfer of a domain name must now demonstrate bad faith, either at the time of registration or during its use.

However, these points serve more as reminders of existing law than as genuine contributions

The central contribution of the decision: limiting recourse to summary proceedings

The main significance of the Sunshine decision lies in the French Supreme Court’s procedural analysis. Referring to Article 809 of the Code of Civil Procedure, the Court reiterates that a judge in summary proceedings may only order protective measures or measures to restore the status quo aimed at preventing imminent harm or putting an end to a manifestly unlawful disturbance.

However, the Court held that the transfer of a domain name cannot be classified as such a measure. Indeed, such a decision is not provisional in nature but produces definitive effects by altering ownership of the domain name. By ordering this transfer, the Court of Appeal had therefore exceeded the powers vested in it.

Through this decision, the French Supreme Court puts an end to a widespread practice consisting of using summary proceedings to quickly obtain the transfer of a domain name. It thus endorses a strict interpretation of the role of the summary judge, incompatible with measures that effectively resolve the dispute on the merits.

A reshaping of strategies in domain name disputes: towards faster and more efficient alternative routes

Before the Sunshine decision, recourse to summary proceedings was a common reflex. This procedural route made it possible to obtain decisions within relatively short timeframes, with immediate impact on the disputed situation. The possibility of securing a transfer through summary proceedings—even if debated—offered a significant strategic advantage.

The position adopted by the French Supreme Court in this decision has profoundly altered this balance. By excluding transfers from the scope of measures that may be ordered in summary proceedings, it deprives rights holders of a particularly effective procedural tool.

This shift has led practitioners to rethink their strategies. Judicial litigation remains available, but it is now primarily conducted through proceedings on the merits, which are longer and require a higher standard of proof. These actions, however, have the advantage of allowing for the award of damages, which extrajudicial procedures do not provide.

At the same time, there has been significant growth in the use of alternative dispute resolution mechanisms, such as:

• UDRP (international level),
• SYRELI (AFNIC) – for a better understanding of the strategic importance of the .fr domain in this context, see our dedicated article: Why .fr is becoming a key lever of digital sovereignty,
• ADR.

The 2025 Comprehensive Guide to Domain Name Disputes outlines all available avenues.

These mechanisms, specifically designed for domain name disputes, offer speed and efficiency well suited to the digital environment. In particular, they allow for the transfer of a domain name within relatively short timeframes, without the need to initiate full judicial proceedings.

Thus, the Sunshine decision has indirectly, yet decisively, encouraged the use of these specialized mechanisms.

Conclusion

The Sunshine case on domain name transfers requires a renewed understanding of the relationship between trademark law and the digital environment.

It establishes the primacy of prior registration, a reinforced requirement to prove good or bad faith and the need for a proactive and strategic approach

Rights holders must therefore anticipate and actively manage their digital assets.

Dreyfus & Associates assists its clients in managing complex intellectual property matters by providing tailored advice and comprehensive operational support to ensure the full protection of intellectual property rights.

Dreyfus Law Firm works in partnership with a global network of intellectual property attorneys.

Nathalie Dreyfus, with the assistance of the entire Dreyfus team.

Q&A

1. Why should domain names be registered at the same time as a trademark?
Because the “first come, first served” principle remains decisive. A domain name registered earlier even by a third party can be difficult to recover without proof of bad faith.

2. How does the Sunshine case impact trademark strategy?
It imposes a proactive approach. Trademark owners can no longer rely on recovering domain names after the fact and must secure their digital assets in advance.

3. Who bears the burden of proof in domain name disputes?
The burden of proof lies entirely with the claimant. The trademark owner must demonstrate both infringement and the domain holder’s bad faith.

4. What does good faith mean in domain name law?
It implies legitimate use, without any intention to unfairly benefit from another party’s reputation.

5. What best practices should be adopted to protect domain names?
Companies should implement a structured strategy: register strategic domain names (including variations and extensions) , monitor third-party registrations and centralize the management of their domain name portfolio

This publication is intended to provide general guidance and highlight certain legal issues. It is not intended to apply to specific situations or to constitute legal advice.

Introduction

Paying annual fees for plant variety rights is the very condition for the legal survival of protected varieties. A late payment, an unread notification, or a simple administrative oversight is now enough to turn a strategic intellectual property asset into a definitive forfeiture. The judgment delivered by the Court of Justice of the European Union on August 1, 2025 (Case C-426/24 P, Romagnoli Fratelli v. CPVO – Melrose variety) confirmed this without nuance: the right holder’s diligence is now elevated to a central obligation, and the digital communication carried out through the MyPVR platform entails significant procedural consequences. For breeders, seed companies, and agro-industrial groups, mastering the payment schedule, anticipating CPVO reminders, and implementing portfolio audits is no longer a matter of organisational comfort but of legal security.

The legal framework governing annual fees for plant variety rights

A plant variety right rests on a simple but demanding balance : in exchange for an exclusive exploitation monopoly conferred by Council Regulation (EC) No 2100/94, the holder must pay an annual maintenance fee. This payment is not a mere formality : it conditions the very existence of the title, in line with the same logic governing patents, trademarks, and designs.

Distinction between Community and national protection

At the European level, Community protection is administered by the Community Plant Variety Office (CPVO). Annual fees are set out in Commission Regulation (EC) No 1238/95 and collected pursuant to Article 9 of that text. At the national level, each Member State retains its own regime : in France, the French National Institute for Plant Variety Rights (INOV) administers plant variety certificates issued under the French Intellectual Property Code.

The legal nature of the annual fee

The annual fee, sometimes referred to as an annuity, is due from the date the right is granted and throughout its protection term, namely twenty-five years, extended to thirty years for vines, trees, and potatoes. Its amount typically increases over time, prompting the holder to weigh, on economic grounds, whether to maintain underexploited varieties. Failure to pay is sanctioned by cancellation of the title pursuant to Article 21(2)(c) of Regulation (EC) No 2100/94. It is then published in the Office’s Official Journal.

Payment schedule that the CPVO impose

The CPVO’s payment schedule is uncompromising and reflects an automated logic that no longer tolerates improvisation. Understanding its stages is the first condition of secure portfolio management.

Issuance of the debit note and the initial deadline

Each year, the CPVO sends the holder a debit note specifying the fee due, the payment deadline, and the reference of the title concerned. Since the exceptional measures adopted during the Covid-19 pandemic ended, the Office has reverted, as of 21 September 2020, to a strict regime : if payment is not received by the deadline, a reminder is issued, opening a new, and final, one-month period to settle the amount. This rule, expressly confirmed by the CPVO official communication, is the unavoidable benchmark for any portfolio manager.

The central role of the MyPVR platform

The MyPVR platform has become the official communication channel between the CPVO and right holders. Debit notes, reminders, procedural notifications: everything transits through the holder’s electronic space, accompanied by email alerts. The CJEU confirmed, in the Melrose judgment, that the President of the Office is empowered, under the basic Regulation, to impose this electronic mode of communication. Opting for MyPVR, or implicitly accepting it through use, therefore entails the full enforceability of notifications uploaded to the dedicated space.

The Court emphasises that it is for the holder to consult its MyPVR space regularly. Failing to open a message cannot be equated with absence of notification : the presumption of receipt applies as soon as the document is made available on the platform. This approach, assumed by the European judge, transforms regular consultation of MyPVR into duty for serious players in the seed sector.

Sanctions for non-payment in light of the Melrose case

The judgment Romagnoli Fratelli SpA v. CPVO delivered on August 1, 2025 by the CJEU is now the leading authority on forfeiture for non-payment. Its scope reaches well beyond the individual dispute : it redefines the diligence standards applicable to all holders of Community rights and serves as a key reference in current IP litigation before the European courts.

Economic and contractual consequences of non-payment

The loss of a plant variety right is never trivial : it produces cascading effects across the holder’s entire contractual and patrimonial ecosystem.

• Irreversible loss of the exploitation monopoly : the variety falls into the public domain and may be freely propagated and marketed by third parties.
• Collapse in the asset’s valuation : forfeiture directly impacts IP due diligence exercises during fundraising rounds, mergers and acquisitions, or licensing transactions.
• Disruption of intellectual property licensing agreements : royalties, warranties, and obligations toward licensees become weakened or extinguished.
• Potential internal liability of the team or service provider in charge of the portfolio, where economic damage can be demonstrated.
• Near-impossibility of refiling : the criteria of novelty and the DUS (distinctness, uniformity, stability) requirements are, in practice, no longer met once the variety has been commercially exploited.

How to prevent forfeiture through alerts and portfolio audits?

Faced with a now uncompromising framework, prevention is non-negotiable. A structured policy of alerts, audits, and internal governance neutralises the risk of forfeiture and sustainably secures the economic value of the variety portfolio.

Setting up an alert system

An effective alert system relies on several independent layers, ensuring that no single failure can cause the loss of the right. We advise our clients to combine the following pillars :

• Continuous updating of the email contact details registered with the CPVO, especially during reorganisations, departures, or changes of administrative contact.
• Internal deadline calendar integrated into a dedicated IP portfolio management software, with automated alerts at 90, 60, 30, and 7 days prior to each deadline.
• Backup oversight by a specialised intellectual property attorney.

Conducting a regular variety portfolio audit

The portfolio audit is a decisive management tool. Carried out annually or biannually, it enables the holder to map the entire set of titles, identify strategic varieties, question whether marginal varieties should be maintained, and rationalise annuity costs. It is also an opportunity to verify the accuracy of MyPVR contact details, test internal alert procedures, and integrate recent regulatory developments, chief among them the Melrose case law. Such audits play a role comparable to IP due diligence exercises conducted during corporate transactions, providing decision-makers with reliable visibility on the portfolio’s resilience.

Conclusion and strategic recommendations

Managing annual fees for plant variety rights is no longer a mere treasury matter : it has become a genuine test of organisational maturity. The Melrose judgment unequivocally confirmed the proactive responsibility of the right holder, endorsed the evidentiary force of MyPVR, and tightened the post-reminder window to one strict month. In a digital environment fully embraced by European institutions, vigilance has become the very condition for the durability of rights.

Dreyfus & Associés assists its clients in managing complex issues related to plant variety rights by offering tailored advice and comprehensive operational support for the implementation and optimization of protection strategies that incorporate all intellectual property tools (plant variety certificates, patents, trademarks, and know-how).

Dreyfus & Associés is partnered with a global network of Intellectual Property attorneys.

Nathalie Dreyfus with the support of the entire Dreyfus team.

Q&A

1. Is the CPVO required to verify that the holder has actually become aware of the reminder before declaring forfeiture ?
No. The CPVO system is based on the principle that notification is deemed effective as soon as it is made available on MyPVR. The Office is not required to prove that the holder has actually taken notice of it. This approach, endorsed by case law, places an increased duty of vigilance on the holder. In practice, failure to consult the platform does not constitute a valid excuse, except in duly proven exceptional circumstances.

2. Can restitutio in integrum still be used to recover a right lost for non-payment ?
Theoretically yes, on the basis of Article 80 of Regulation (EC) No 2100/94, but the Melrose ruling has drastically narrowed its scope. The holder must demonstrate an involuntary and exceptional impediment, unrelated to any negligence in consulting MyPVR or in updating its contact details.

3. Is engaging an attorney mandatory for the payment of annual fees ?
No, but it is strongly recommended. A specialised intellectual property attorney acts as an independent safety net, capable of monitoring MyPVR, anticipating deadlines, and reacting in the event of any technical or organisational issue affecting the holder.

4. Can an internal error (IT failure, staff absence, poor internal communication) justify restitutio in integrum ?
In principle, no. European case law adopts a strict approach : internal failures fall within the holder’s sphere of control and are generally considered negligence. To be admissible, the request must be based on an external, unforeseeable, and unavoidable impediment. This implies that companies must demonstrate the existence of robust internal procedures, including redundancy and control systems.

5. Can forfeiture for non-payment give rise to liability towards commercial partners ?
Yes, and the risk is far from theoretical. The loss of the right may constitute a breach of contractual obligations (warranty of quiet enjoyment, maintenance of the right in force, etc.). It may also trigger tort liability where partners (licensees, distributors) suffer damage. In practice, contracts often include liability or indemnification clauses that may be invoked.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific situations or to constitute legal advice.

Introduction

On 1 June 2025, the revised Regulations of the People’s Republic of China on the Protection of New Plant Varieties entered into force. Adopted in April 2025 by the Executive Meeting of the State Council, this text constitutes the first major revision since the promulgation of the original Regulations in 1997.

This reform reshapes the entire architecture of Chinese plant variety rights law by extending the scope of protection, introducing new mechanisms aligned with the international standards of the International Union for the Protection of New Varieties of Plants (“UPOV”), and substantially strengthening the enforcement tools available to right holders.

A Reform context driven by the growth of the seed industry

China’s seed industry has experienced spectacular growth over the past two decades, establishing itself as one of the key drivers of national food security. By the end of 2024, Chinese authorities had recorded more than 12,000 applications for plant variety protection, including nearly 6,000 grants. This exponential growth highlighted the shortcomings of the regulatory framework then in force.

The 2025 revision also forms part of an effort to align the Regulations with the Seed Law of the People’s Republic of China, as revised in 2021, several provisions of which had created inconsistencies with the 1997 Regulations. This is therefore a systemic reform designed to ensure consistency across the entire legislative and regulatory framework governing the protection of plant innovation in China.

Extension of the scope of protection: from propagating material to harvested products

The most significant development lies in the considerable broadening of the scope of protection. Until now, only propagating material seeds, cuttings and seedlings was covered. Harvested products fruits, flowers and grains now also fall within the scope of protection where they have been obtained from unauthorised material.

This extension addresses a practical issue: the distinction between propagating material and harvested products was frequently exploited by infringers who marketed harvested products directly without ever selling seeds, thereby evading enforcement action.

In addition, the list of acts requiring authorisation has been substantially expanded. Beyond production and sale, the Regulations now cover processing for propagation purposes, offering for sale, importation, exportation and storage.

Introduction of essentially derived varieties ( EDV) into chinese administrative law

This is one of the innovations most anticipated by the international breeder community. The system of essentially derived varieties (“EDVs”) has been incorporated into the Chinese regulatory framework for the first time. Under this regime, any commercial exploitation of a variety that is essentially derived from a protected variety requires the prior authorisation of the holder of the rights in the initial variety.

The determination of EDV status is based on a combination of molecular testing and phenotypic assessment, with the possibility of examining the breeding process in the event of a dispute.

In October 2025, the Supreme People’s Court of the PRC issued two leading judgments, No. 1201 and No. 44 of 2024, endorsing a comprehensive approach to varietal identification. The courts no longer confine themselves to isolated molecular analysis reports; they now assess all relevant constituent elements, including the identity of varietal denominations, similarity of key morphological traits and additional documentary evidence.

Reconsidering novelty: new grounds for loss of rights

The Regulations also introduce several new circumstances capable of affecting the novelty of a variety, a concept that is decisive for obtaining a protection title. These new grounds for loss of novelty are aligned with the 2021 Seed Law and warrant particular attention from applicants:

• the promotion of propagating or harvested material for more than one year in China before the filing date, or for more than four or six years abroad depending on the species;
  • official recognition that a variety has reached widespread cultivation, assessed on the basis of the cultivated area;
  • approval or registration of a crop variety for more than two years without any application for protection having been filed.

It should be emphasised that recent case law has introduced an important qualification in this respect. According to the Supreme People’s Court, judgment No. 891 of 2024, unauthorised dissemination by a third party cannot be attributed to the right holder and does not affect the novelty of the variety. This clarification is essential for breeders who fall victim to unlawful disclosures.

Compliance of denominations and prior rights: A strategic issue for applicants

The Regulations now impose a requirement of consistency in denominations throughout the life cycle of a variety: the application for protection, approval, registration, marketing and promotion must all use one and the same denomination. The Regulations expressly prohibit denominations that infringe third-party prior rights, including trademark rights.

This provision requires applicants to exercise increased diligence upstream. It is now essential to conduct a cross-clearance search covering both existing varieties and registered trademarks before filing, failing which the application may be rejected during preliminary examination.

In practice, any applicant must now carry out an in-depth search covering both previously registered plant variety denominations and third-party trademarks likely to give rise to confusion. Failure to do so exposes the applicant to rejection at the preliminary examination stage, with the resulting loss of time and resources.

An accelerated examination process and extended terms of protection

Reduction of the preliminary examination period

The Regulations reduce the preliminary examination period for protection applications from six months to three months, with a possible three-month extension for complex cases. This reduction is far from incidental: pursuant to Article 34 of the Regulations, the applicant may claim retroactive compensation for acts carried out between publication of the preliminary approval and grant of the final certificate.

Reducing this period therefore mechanically shortens the window of uncompensated exploitation and enables faster market entry in an economy where time-to-market is decisive.

Terms of protection harmonised with UPOV 1991

The term of protection has been increased to 25 years for trees and vines, as opposed to 20 years previously, and to 20 years for all other species, as opposed to 15 years previously. This extension aligns with Article 19 of the 1991 Act of the UPOV Convention, although China remains a signatory to the 1978 Act.

However, some uncertainty remains: the Regulations do not expressly state whether these new terms apply retroactively to rights already granted. The right holders concerned will therefore need to monitor future administrative guidance clarifying this point.

Strengthened administrative enforcement

The reform is not limited to the expansion of substantive rights; it also profoundly overhauls the administrative enforcement mechanism. Three structural developments deserve particular attention:

• First, sanctioning powers have been transferred from the provincial level to the county level, thereby bringing the competent authority closer to the field and promoting greater responsiveness to infringements.
• Secondly, the ceiling for administrative fines has been doubled: the maximum fine has increased from five to ten times the value of the infringing goods, together with a newly introduced minimum fine of RMB 10,000.
• Thirdly, administrative authorities have been granted extended investigative powers, including access to production premises, sampling, sealing and seizure of equipment and stocks. These prerogatives, previously reserved to the courts, give administrative authorities an unprecedented capacity to collect evidence.

Conclusion

China’s reform of the protection of new plant varieties marks a decisive turning point in the structuring of plant variety rights law in Asia.

By broadening the scope of protection, introducing the system of essentially derived varieties and equipping administrative authorities with genuine investigative powers, China is sending a strong signal to the international breeder community: the Chinese market now intends to offer a competitive and reliable legal environment for varietal innovation.

FAQ

1. Which plant varieties are protectable in China since the 2025 reform?
Since the revised Regulations entered into force on 1 June 2025, protection extends not only to traditional propagating material, such as seeds and seedlings, but also to harvested products such as fruits and flowers, provided that they have been obtained from unauthorised material. This considerably broadens the range of varieties and acts covered by protection.

2. What is an essentially derived variety under Chinese law?
An essentially derived variety is a variety which, while displaying distinctive characteristics, retains the essential genetic material of an initial protected variety. The 2025 Regulations now provide that the commercial exploitation of such a variety is subject to the authorisation of the holder of the rights in the initial variety. EDV qualification is based on molecular testing, phenotypic assessment and, where necessary, analysis of the breeding process.

3. How does the reform strengthen rights enforcement in the event of infringement?
The Regulations decentralise sanctioning powers to county-level authorities in order to allow faster responses in the field. The maximum fine has been increased to ten times the value of the goods at issue, with a newly introduced minimum fine of RMB 10,000. The authorities also have broader inspection powers, including the ability to conduct seizures and seal premises.

4. Does the 2025 reform apply to varieties already protected?
The question of the retroactive application of the new terms of protection remains open. The Regulations contain no express provision on this point. It is likely that only varieties for which the application is filed, or the title granted, after 1 June 2025 will benefit from the extended terms — 25 years for trees and vines, and 20 years for other species. Administrative clarification is expected.

5. What risks does an applicant incur if no prior search is carried out for the denomination of its variety?
Since the reform, varietal denominations must remain consistent across all procedures and must not encroach upon third-party prior rights, including registered trademarks. Failure to carry out a prior search exposes the applicant to rejection during preliminary examination, as well as to subsequent disputes with trademark holders. Such verification is therefore indispensable before any filing.

This publication is intended to provide general guidance to the public and to highlight certain issues. It is not intended to apply to specific circumstances or to constitute legal advice.

Introduction

The Implementing Regulation (EU) 2026/138 will become applicable as from July 1^st, 2026. This text completes the modernisation of European design law initiated by the substantive reforms that came into force on May 1^st, 2025.

Whereas the previous reform addressed the substantive provisions, this new text profoundly transforms the procedural rules governing the filing of design applications before the European Union Intellectual Property Office (EUIPO). This evolution responds to a need that practitioners have identified for several years: the inadequacy of graphic representation rules to current technological realities.

A structural procedural reform brought by the new Implementing Regulation on designs

The reform of European design law unfolded in two successive stages. Regulation (EU) 2024/2822, which became applicable on May 1^st, 2025, overhauled the substantive framework by redefining several key concepts. Several concepts have been redefined. In particular, the concept of “product” has notably been broadened to encompass digital creations, including interfaces, animations and graphic elements. Rights holders have also been granted the ability to take action against counterfeit goods merely transiting through the territory of the European Union. New exceptions to the rights conferred on holders have been introduced, new deadlines and fees have been established, and a repair clause has been provided for spare parts of complex products.

For further information on this reform, we invite you to read our article on the subject.

In a second stage, the Implementing Regulation 2026/138 adapts the procedural rules of filing to these new realities. This adjustment rests on a finding made by the European Commission: the evolution of visualisation technologies and the emergence of non-physical products require representation formats more sophisticated than those allowed under the previous framework. The Regulation thus implements two structural changes that should command the attention of applicants.

Without claiming to be exhaustive, the following developments focus on three significant contributions for applicants: the removal of the seven-view limit, the acceptance of new representation formats, and the easing of the regime governing multiple applications for designs.

The end of the seven-view limit: a decisive step forward in the representation of creations

• A constraint no longer suited to complex creations

Until the entry into force of the new Regulation, any application for the registration of a community design could not contain more than seven graphic or photographic representations per design filed. This constraint, relevant at the time it was adopted, had become a real impediment for applicants confronted with complex creations.

How to represent, in seven static views, an animated user interface comprising several successive states, an articulated product adopting different positions of use, or an object whose geometry can only be apprehended through a multiplicity of angles? Applicants were regularly compelled to make difficult trade-offs, sacrificing the clarity of certain features in favour of others deemed more important.

• A new freedom, framed by the requirement of consistency between representations

Regulation 2026/138 removes the previous strict limit of seven views. Applicants will henceforth enjoy an extended freedom to illustrate all the visual features being claimed. This evolution strengthens the legal certainty of the rightholder by enabling a more precise definition of the scope of protection.

A technical reservation nonetheless remains: it is likely that the EUIPO will maintain a technical ceiling within its online filing system, similar to the UKIPO approach of capping electronic filings at ten views. The precise terms will be set out in the Office’s forthcoming guidelines.

Above all, the Regulation specifies that the subject matter of the design claimed shall be determined by the combination of all the visual features resulting from all the representations filed. Perfect consistency between all views submitted thus becomes imperative, under penalty of objection from the examiner, or even loss of rights over certain distinctive elements.

The acceptance of new representation formats: videos, animations and CAD files

• Towards a dynamic and digital representation of creations

As a logical complement to the abolition of the seven-view limit, the new Regulation enshrines the acceptance of considerably broadened representation formats. Applicants may now file:

• static representations (drawings, photographs);
• dynamic and animated representations (videos, animated sequences);
• computer-generated images;
• computer-modelling files, in particular CAD (Computer-Aided Design) formats.

This evolution constitutes a decisive step forward for designers of animated graphical user interfaces, XR/VR environments and exclusively digital products, the protection of which fitted poorly within the static representations imposed until now.

• Heightened vigilance regarding the elements excluded from protection

The question of disclaimed features, traditionally indicated by dotted lines or shaded areas in two-dimensional views, remains to be clarified in the context of video files and 3D modelling. How is one to indicate, within an animated sequence, that a given element does not form part of the protection being claimed? Operational guidelines from the EUIPO are awaited on this point.

In this respect, recent case law, in particular the CJEU judgment in Ferrari of 28 October 2021 (C-123/20), reminds us that the scope of protection conferred by a community design depends closely on the precision with which its features are identified in the application for registration. The new formats offer, in this regard, fresh opportunities, but also fresh risks.

The easing of requirements for multiple applications

The reform also modifies the regime governing multiple applications for European Union designs. Until now, several designs could be included in a single application provided that the products concerned belonged to the same class of the Locarno Classification. This requirement could limit the practical value of multiple applications, particularly where the applicant wished to protect, in a single filing, a product range, accessories or variants falling within different categories.

As from 1 July 2026, this single-class requirement will be abolished. Applicants will therefore be able to include, in a single application, designs applied to products falling within different classes, which should facilitate the management of certain complex filings. This new flexibility will nevertheless remain subject to limits: a multiple application may not contain more than fifty designs.

This added flexibility will need to be factored into filing strategies. On the one hand, it will make it possible to streamline procedures, group together related creations and simplify the administrative management of portfolios. On the other hand, it will be accompanied by a change in the fee structure, with a flat fee for each additional design. In practice, multiple applications will therefore remain a useful tool, but they will need to be assessed on a case-by-case basis, depending on the number of designs to be protected, their commercial coherence and the overall cost of the operation.

Strategic levers to activate in order to take advantage of the new framework

• Deferring or anticipating filing: a case-by-case assessment

For creations whose representation would substantially benefit from the new formats, deferral of filing until July 1^st, 2026 deserves consideration. This strategy is particularly compelling for:

• animated graphical user interfaces (GUIs);
• articulated products or products with variable geometry;
• creations intended for XR/VR environments;
• digital objects whose form evolves through interaction.

Conversely, where establishing a priority date prior to July 1^st, 2026 is strategically necessary, typically in cases of imminent risk of disclosure by a third party, or where immediate enforcement is required, an intermediate solution warrants consideration: filing an initial application in still images and then claiming the priority of that filing in a new application made after July 1^st, 2026, exploiting the new formats.

• Auditing existing portfolios and adapting internal practices

Holders of existing design portfolios should identify those creations whose initial representation, constrained by the former rules, would benefit from new filings exploiting the now-permitted formats. Such a portfolio audit constitutes an essential prerequisite to any optimisation strategy.

Adapting internal processes is equally a key issue:  the process for preparing representations, involving the various stakeholders such as designers, marketing teams or industrial property advisors must be prepared to deliver the new formats required, in strict compliance with the requirement of consistency between representations. Failing this, the very richness of the available means of representation mechanically increases the risks of inconsistency, and consequently of objections during examination.

Conclusion

No single tool, taken in isolation, secures the optimisation of a post-reform community design filing. The abolition of the seven-view limit offers an unprecedented freedom, but the acceptance of video and CAD formats imposes heightened rigour as to the consistency of representations. The strategic deferral of filings beyond July 1^st, 2026 is justified only for certain creations and remains a matter to be balanced against the urgency of the competitive context. In practice, applicants who master their strategy will combine portfolio audit, representational engineering and temporal arbitrage.

Dreyfus law firm assists its clients in the management of complex intellectual property matters, providing tailored advice and comprehensive operational support for the full protection of intellectual property assets.

Dreyfus law firm works in partnership with a global network of lawyers specialised in intellectual property.

Dreyfus law firm with the support of the entire Dreyfus team.

Q&A

1. Can already-registered Community designs be supplemented with new views after July 1^st, 2026?

No. Implementing Regulation 2026/138 does not provide for any mechanism allowing the retroactive supplementation of representations for existing registrations.

2. What are the consequences for infringement actions pending on July 1^st, 2026?

Infringement actions brought on the basis of Community designs registered under the former regime continue to be assessed by reference to the representations actually filed.

3. Does a richer representation allow for broader protection?

Not necessarily. The addition of views, animations or digital formats should not be seen as a way to artificially broaden the scope of protection. These elements primarily serve to better identify the design being claimed. The more detailed the representation, the more it may also contribute to precisely defining the protected subject matter. The key issue is therefore to select formats that enhance the clarity of the filing without creating unnecessary limitations.

4. What is the principal risk associated with the use of multiple representation formats?

The main risk lies in inconsistencies between the different representations. The Regulation specifies that the protected subject matter is determined by the combination of all visual features. Any divergence between a photographic view, a video or a CAD file may give rise to an objection from the examiner, or even to a loss of rights over certain elements. Rigorous verification of inter-representation consistency is imperative prior to any filing.

5. How should design protection and copyright protection be articulated for a digital creation?

An animated graphical user interface or a digital object may benefit from dual protection: through design law (subject to novelty and individual character) and through copyright (subject to originality). For more information on this dual protection, you may refer to the following article.

This publication is intended to provide general guidance and to highlight certain issues. It is not designed to apply to specific situations and does not constitute legal advice.