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Introduction

Checking whether a plant variety is protected involves much more than searching for a name. A reliable analysis identifies the botanical species and official denomination, determines the intended markets, and cross-checks results from INOV, CPVO Variety Finder and UPOV PLUTO against the competent authorities' publications. The aim is to distinguish a pending application from a granted plant breeder's right (PBR), determine whether protection remains in force and avoid treating an entry in a variety catalogue as evidence of an exclusive intellectual property right.

Identify which right and territory must be checked

Separate plant breeders’ rights from variety listing

French national plant variety protection is governed in particular by Article L. 623-4 of the French Intellectual Property Code. At EU level, Council Regulation (EC) No 2100/94 establishes a unitary Community plant variety right (CPVR). Entry on an official national variety list is connected with the marketing of certain seeds and plant material; it does not in itself establish that a PBR has been granted. Conversely, a French right does not extend automatically throughout the European Union. Article 92 of the Regulation prohibits cumulative national and Community protection for the same variety.

For further guidance on applying for EU protection, we invite you to consult our article: “Filing a plant variety right in the European Union: what comprehensive legal and administrative checklist should be followed to secure your rights?”.

Identify the variety unambiguously

The starting data should include the botanical name, registered variety denomination and, where available, the UPOV taxon code. The breeder's, applicant's or holder's name and file number can resolve apparent duplicate entries. Earlier denominations and provisional breeding references should also be recorded: the identifier used when an application was filed may differ from the name appearing on the granted title. The relevant country, intended acts of exploitation and reference date must be fixed before reaching a freedom-to-operate conclusion.

For a closer examination of the relationship between variety denominations and trademarks, we invite you to read our article: “How to secure the choice of a plant variety denomination? CPVO rules, risks of refusal and conflicts with trademarks”.

Search the official sources: INOV, CPVO and UPOV PLUTO

INOV: confirm the status of a French plant variety right

The French National Office for Plant Breeders' Rights (INOV) maintains the relevant national registers. Its Official Gazette, published through GEVES, allows searches by species, denomination and file number. It publishes applications, proposed denominations, grants and refusals, changes of ownership, terminated rights and licenses. A list of certificates in force is a starting point rather than definitive confirmation: later entries must also be considered. The certificate number, owner, grant date and subsequent acts form the core of the French title review.

The electronic database has an important archival limitation: only information entered from 2007 onward is searchable. Official publications from 1971 to 2006 were on paper, and the interface describes the digitized 2007–February 2012 records as unofficial. For historical rights or where formal evidence is required, original gazette publications or confirmation by INOV should be obtained. GEVES describes the French protection system and its publication requirements.

CPVO Variety Finder: select the correct register and examine EU rights

The CPVO Variety Finder combines records from more than 70 countries. To identify protected rights, select the PBR (Plant Breeders' Rights) register type: NLI entries relate to national lists, while COM identifies commercial registers. Identical denominations may generate several hits that do not all reflect rights in force. Each record should be interpreted by reference to the species, filing country, register category, status and date of update, rather than the denomination alone.

Where a CPVR is relevant, its status should be confirmed in the CPVO public applications and titles register and, where appropriate, the Official Gazette. These official records establish the application's progress, the grant decision and any relevant subsequent changes. Variety Finder facilitates a cross-border search but does not replace examination of the actual Community title.

UPOV PLUTO: broaden the search without treating it as conclusive

The UPOV PLUTO database aggregates information supplied by UPOV members and other contributors, including plant breeders' rights (PBR), national lists (NLI) and some other rights categories. It is particularly valuable for identifying possible protection outside the European Union by denomination or UPOV code. Access requires a WIPO Account; standard searching is free but subject to functional limitations. The UPOV Convention does not create a single worldwide plant variety title.

The official PLUTO terms of use clarify that its contents are not the issuing authorities' official publications, and contributors are not required to provide complete information. An unsuccessful search is therefore not evidence that commercial exploitation is unrestricted. National registers must be checked in each target market. The CPVO also provides a video tutorial on Variety Finder illustrating its search interface.

Assess the legal status and document the decision

Verify the right’s scope, term and subsequent changes

A positive match requires five checks: exact variety identity, protected territory, application versus granted title, expiry and later changes, and current rights holder. Under Article L. 623-13 of the French Intellectual Property Code, the ordinary French term is 25 years from grant, extended to 30 years for specified categories of plants. A nominal term is never proof of continued protection: surrender, lapse or a change of ownership may change the outcome. EU rights last 25 years, or 30 years for vines and trees (Article 19 of the Regulation); their continued validity must be checked in the official CPVO file.

Create an auditable record before a launch or transaction

Before licensing, acquiring or marketing plant material, we recommend preserving dated screenshots, filing numbers, gazette extracts, negative results and any official confirmations. For example, a nursery intending to propagate an ornamental variety sold under a supplier code should first reconcile that code with the registered denomination, check the destination countries and identify the person entitled to authorise propagation. Database searches cannot substitute for a license. Cross-border operators may also benefit from advice from a French intellectual property lawyer familiar with plant variety rights.

For further information on the commercial value of protected varieties, we invite you to consult our previously published article: “Plant Varieties: From Protection to Competitiveness – Building an Effective Intellectual Property Strategy”.

Conclusion

Checking whether a plant variety is protected requires a coordinated review of INOV, CPVO Variety Finder and UPOV PLUTO, followed by verification in the legally relevant official publications. The decisive issue is whether an enforceable title covers the specific variety, territory and period in question. We assist breeders, seed companies and investors with rights clearance, plant variety licensing and infringement matters, helping them secure their breeding investments and commercial operations.

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.

To receive further IP updates, subscribe to our newsletter and follow our social media accounts through the firm’s website.

Nathalie Dreyfus with the support of the entire Dreyfus team

Q&A

Can a variety sold under a commercial brand be searched using that brand alone?

Not reliably. The trade name used in marketing may differ from the registered variety denomination. Product labels, phytosanitary passports or supplier documentation should be obtained to identify the official denomination or breeding reference before performing a register search.

May a breeder use a protected variety to develop another variety?

Article 15(c) of Regulation No 2100/94 allows certain acts for the purpose of breeding or discovering and developing other varieties. Commercial exploitation of the resulting variety requires separate analysis, particularly where the earlier right may still extend to it.

What is an essentially derived variety and why does it matter?

A distinct variety may nevertheless be predominantly derived from a protected initial variety while retaining its essential characteristics. Under Article 13(5) of Regulation No 2100/94, protection may extend to qualifying derived varieties, making scientific assessment of lineage relevant.

Does purchasing seeds lawfully permit subsequent propagation and resale?

Not automatically. Exhaustion following authorized marketing is subject to exceptions, including further propagation, under Article 16 of Regulation No 2100/94. The contractual terms, intended activity and any applicable statutory exceptions must be examined.

How can an incorrect owner name or variety denomination be corrected in a register?

The authority maintaining the original register should receive supporting documentation, such as an assignment, court decision or evidence of a legal name change. Amending an aggregator's display is not a substitute for the official record's correction or publication.

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

A wine label is simultaneously a regulated information medium, a graphic creation and a commercial identifier. Its protection therefore generally relies on several rights: copyright, trademark rights and, where appearance warrants it, design rights, without prejudice to labelling rules and the protection of geographical indications.

Each right serves a different function: copyright protects original expression, trademark law commercial origin, and design law appearance. The same feature may fall within several regimes, whose conditions and evidence differ.

For a broader sector overview, see our previously published article: “How to protect your wines and spirits?”.

Why do wine packaging and labelling require cumulative protection?

Before launch, we recommend separating the relevant assets. The winery name, cuvée name, logo or emblem may be protected as trademarks; illustrations, photographs and graphic layouts by copyright; and the shape of the bottle or box, or the appearance of the label, by design rights. PDOs, PGIs and regulated wine terms, for their part, are subject to their own regimes and cannot be privately appropriated by a single operator.

Copyright: protecting graphic creation and securing ownership

Under French law, Article L.111-1 of the French Intellectual Property Code grants copyright from the moment a work is created. A wine label may therefore be protected without registration if it reflects original creative choices, for example in the illustration, photograph, composition or typographic treatment. Article L.112-2 of the same Code refers in particular to graphic, typographic and applied-art works.

Ownership is often decisive. Commissioning a label from an agency or designer does not automatically transfer exploitation rights. The assignment must be formalised in writing and specify the rights assigned and the scope, purpose, territory and duration of exploitation, in accordance with Article L.131-3 of the French Intellectual Property Code. Source files, dated versions and contracts must be preserved.

Recent case law shows what is at stake. In a judgment of 20 November 2025, the Douai Court of Appeal found infringement against a Champagne house that had bought a sculpture from an artist and then reproduced it on its labels, packaging and website (Douai Court of Appeal, 1st Chamber, Section 2, 20 November 2025, RG No. 24/00114). Ownership of the physical object confers no right to exploit the work (Article L.111-3 of the French Intellectual Property Code), and the artist’s tolerance over several years did not amount to an implied assignment. The court also rejected the argument that the reproduction was merely incidental: the work contributed directly to the product’s visual identity and commercial appeal.

Conversely, an estate that exploits a label under its own name benefits, as against infringers, from a presumption of copyright ownership as long as the author does not come forward (Cass. 1re civ., 24 March 1993, No. 91-16.543). This presumption makes it easier to act against an imitator, but it does not protect the estate against the creator: only a written assignment does.

Trademarks: protecting distinctive signs without monopolising origin

Trademark registration protects the signs that identify the commercial origin of a wine: name, logo, emblem, slogan and sometimes the figurative presentation of the label. The sign must be distinctive, available and lawful. Article L.711-2 of the French Intellectual Property Code excludes, among other things, descriptive or misleading signs and signs conflicting with protected designations of origin, geographical indications or traditional wine terms.

Bottle shapes may also be considered for three-dimensional trademark protection, but the distinctiveness threshold is demanding. In Fränkischer Weinbauverband v EUIPO, T-68/18 (24 September 2019; judgment available in French and German only), the General Court upheld the refusal to register a wine bottle shape as a three-dimensional trademark, reiterating that only a shape which departs significantly from the norms or customs of the sector can function as an indication of origin. A shape that is merely attractive or original is not, for that reason alone, distinctive.

The choice of name also calls for particular care. Under French law, the terms “château” and “clos” are reserved for wines with a protected designation of origin made from grapes harvested on the plots of an estate bearing that name and vinified on that estate (Article 7 of Decree No. 2012-655 of 4 May 2012). A trademark built around these terms therefore cannot be used on wines that do not meet those conditions, including under a licence.

Designations of origin are also protected against any evocation. In Champanillo of 9 September 2021 (C-783/19), the Court of Justice of the European Union held that this protection also covers signs designating services and does not require any similarity between the products: it is enough that the sign triggers in the consumer’s mind a sufficiently direct and unequivocal link with the product covered by the designation. A cuvée name, slogan or graphic element recalling a designation to which the wine is not entitled may therefore be challenged, even without literal reproduction.

Design rights: protecting the appearance of wine packaging

Design law complements these protections. Articles L.511-1 and L.511-2 of the French Intellectual Property Code cover the appearance of a product, including lines, contours, colours, shape, texture and ornamentation, and also cover packaging, presentations, graphic symbols and typefaces. Protection requires, in particular, that the design be new and have individual character.

Where packaging is intended to become a durable visual signature, a registered design can define the claimed appearance with precision and make the protected scope easier to evidence.

Since 1 May 2025, the reform of EU design law (Regulation (EU) 2024/2822) has modernised this regime: Community designs have become EU designs, the definition now covers animated and digital features, and the Ⓓ symbol may be used to signal registration.

Two mechanisms are particularly useful for wine. The unregistered EU design protects the appearance of packaging for three years from its first disclosure within the EU, but only against copying. The twelve-month grace period also allows a filing after a first presentation, for instance at a trade fair, without that disclosure destroying novelty.

To explore this further, see our article: “Design law: How can it be turned into a true strategic asset?”.

Regulatory labelling: integrating compliance requirements without weakening protection

Intellectual property must be considered alongside wine labelling requirements. The French consumer protection authority, the DGCCRF, sets out the mandatory information that must appear on wine labels and, for wines subject to the rules applicable since 8 December 2023, the requirement to provide a list of ingredients and a nutrition declaration. Certain information may be provided electronically, in particular through a QR code, subject to specific conditions, while allergens and the energy value must remain displayed on the physical label.

These regulatory requirements should not be confused with elements that may qualify for intellectual property protection. Compliance of a label with applicable labelling rules does not establish either its availability for registration as a trademark or its originality for copyright purposes. Conversely, holding intellectual property rights never exempts an operator from complying with the rules governing the presentation of wine.

Building a protection strategy before launch

The safest approach is to treat the packaging as a portfolio of assets before any commercial disclosure:

• Map the name, logo, illustrations, bottle shape, ornaments and label variants;
• Carry out clearance searches for trademarks, designs, company names and relevant geographical signs;
• Secure written assignments from designers, agencies, photographers and other contractors;
• File strategic trademarks and designs before launch and preserve creation evidence for copyright purposes, notably through an e-Soleau filing with the INPI;
• File a customs application for action so that goods suspected of infringing trademarks, designs, copyright or geographical indications can be detained;
• Implement monitoring of filings, marketplaces, websites and domain names to identify imitations at an early stage.

Where an imitation falls short of infringement, unfair competition and parasitism may take over, but success depends on proving an individualised economic value. On 4 June 2025 (No. 24-11.507), the Commercial Chamber of the French Cour de cassation dismissed a claim brought by a Champagne house against a Crémant producer that had also adopted a metallic bottle sleeve and advertising centred on drinking the wine over ice. The sleeves differed significantly, these codes belonged to a visual universe common in the sparkling wine sector, and the notoriety of the range had not been established at the relevant date. The visual codes of packaging are therefore best protected first by registered IP rights, before being defended through civil liability.

For practical guidance on how to prepare a design filing, see also: “What technical recommendations should be followed when filing a design in order to ensure effective legal protection?”.

Conclusion

Protecting wine packaging and labelling relies on complementary protections. Copyright secures original creative expression, trademark law protects signs indicating commercial origin, and design rights strengthen control over the product’s appearance. That architecture should be built at the design stage, alongside regulatory compliance and the protection of geographical indications.

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 & 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

Can a wine label feature the portrait, name or signature of a public figure?

Such use requires consideration of rights extending beyond intellectual property. A person’s name, image or signature may be protected by image rights, personality rights and, depending on the circumstances, trademark rights. An authorisation should generally specify the relevant media, territories, duration of use and any associated promotional exploitation. The situation must also be examined where the individual is deceased, as certain rights or interests may continue to be exercised by their heirs.

Can a well-known work of art be reproduced on a wine bottle?

The fame or age of an artwork is not sufficient in itself to permit its reproduction. It is necessary to determine whether the economic rights remain in force, identify the relevant rights holder and assess the conditions under which the work may be reproduced, adapted or incorporated into commercial packaging. Even where the underlying artwork has entered the public domain, the photograph used to reproduce it may itself be protected by separate rights. In France, the author’s moral rights must also be taken into account.

Can a QR code displayed on a wine label benefit from specific protection?

A QR code, considered merely as a technical means of accessing information, will generally not qualify for copyright protection in itself. However, its graphic treatment, its original integration into the label, or distinctive signs used alongside it may, depending on the circumstances, qualify for copyright, trademark or design protection. The destination of the QR code should also be secured, particularly where it directs consumers to commercial content or to a webpage that may evolve over time.

What rights should be addressed when a wine label is created as part of a collaboration with an artist or a luxury brand?

A collaboration generally involves several separate assets: artwork, the artist’s name or signature, the partners’ trademarks, photographs, promotional materials and digital campaign content. The agreement should determine who may use each asset, on which products, in which territories, for how long and for which purposes. Particular attention should be paid to limited editions, reissues, packaging variations and subsequent use of the creation in the partners’ archives or corporate communications.

Can a foreign distributor register the name or packaging of a wine in its own name?

The mere distribution of a product does not, in itself, confer any right to appropriate its distinctive signs. Nevertheless, in some jurisdictions, a local distributor or commercial partner may attempt to register the brand name, logo or packaging element in its own name. Distribution agreements should therefore expressly regulate intellectual property filings, determine ownership and provide for the transfer or return of relevant rights when the commercial relationship ends. Local monitoring of filings may also help detect an unauthorised initiative at an early stage.

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

Counterfeit alcoholic beverages require a strategy that goes beyond defending the trademark alone. In this sector, infringement may simultaneously concern the product name, its origin, the bottle, label, capsule and the contents themselves. A sufficiently convincing imitation can therefore cause economic and reputational harm while exposing consumers to health risks where the composition of the beverage is unknown or altered. The most effective response rests on four pillars:

• an IP portfolio covering the elements actually copied,
• authentication and traceability measures,
• combined monitoring of physical and digital channels,
• rapid enforcement based on usable evidence.

Counterfeit alcoholic beverages combine several types of risk

Fraud is not limited to placing a logo on a bottle. It may concern the trademark, a geographical indication or protected designation, the packaging and, above all, the trust attached to the product’s origin. Consumers may believe that they are purchasing a genuine bottle when only the container is authentic, or may be misled by a presentation that reproduces the visual codes of the relevant producer closely enough to appear legitimate.

This feature justifies a particularly firm approach. When an inferior or dangerous product is marketed under the appearance of an authentic product, the consequences may wrongly be attributed to the legitimate rights holder. Intellectual property protection therefore becomes a means of preserving reputation, consumer safety and the integrity of distribution channels.

Fraud methods focused on contents and packaging

Fragmented assembly and reuse of genuine containers

Counterfeiting networks may separate the different components of the product in order to reduce the visibility of the fraud during inspections: bottles, labels, capsules or graphic elements can be transported separately and assembled close to the destination market. Another technique is to recover a genuine bottle, sometimes of very high value, and refill it with a different beverage. The product continues to look convincing even though its contents no longer correspond to the claimed origin.

Reproduction of the product’s overall appearance

Fraud may also result from the combined imitation of several elements without the slavish reproduction of a single right. A particular bottle, label, typography, colours and capsule may together create an impression of authenticity. It is therefore risky to concentrate the entire strategy on the word trademark alone.

For further information on the legal protection of a product’s shape or packaging, we invite you to consult our article: “Validity of three-dimensional trademarks: Tic-Tac does not crack”.

An IP portfolio tailored to the product’s identity

The first layer of protection is preventive. The portfolio should be designed around plausible fraud scenarios and not solely around the product as marketed. Depending on the characteristics of the beverage, it may be appropriate to protect separately:

• the principal trademark and distinctive figurative elements;
• the original shape of the bottle and certain packaging elements, through trademark or design protection where the relevant requirements are met;
• labels, patterns, graphic combinations and other elements enabling the public to identify the product immediately;
• rights or signs relating to geographical origin where applicable.

This protection should be planned for the territories of production, transit and marketing. It should also incorporate authentication elements – serial numbers, seals, markings, QR codes or technical devices – that facilitate internal checks and the examination of suspicious products. These tools do not replace intellectual property rights, but they strengthen the ability to distinguish genuine products rapidly from copies.

For further information on integrating authentication and traceability measures into a comprehensive anti-counterfeiting strategy, we invite you to consult our article: “Trademark protection: coordinating customs monitoring and the fight against online infringement”.

Coordinated monitoring of physical and digital channels

Customs as a detection and intelligence tool

Customs monitoring is essential to intercept goods before they reach the market. Regulation (EU) No 608/2013 governs customs enforcement of intellectual property rights at the borders of the European Union, while Article L. 716-8 of the French Intellectual Property Code provides, under the applicable national framework, that an owner of a registered trademark may request the detention of goods it considers counterfeit. A properly documented application for action is particularly useful because it gives customs officers practical identification criteria and an operational contact able to respond within short deadlines.

For a detailed presentation of this mechanism, we invite you to consult our article: “What central role do French customs play in the fight against counterfeiting?”.

Online monitoring of marketplaces and domain names

Detection should begin before a counterfeit bottle even appears on the market. Offers for empty bottles, labels, capsules or packaging may reveal preparations for a broader operation. Marketplaces, social media, e-commerce websites and domain names should therefore be monitored in a coordinated manner. Where a website is the network’s principal sales outlet, action against its domain name, hosting provider or other relevant intermediary can rapidly reduce its visibility.

The Digital Services Act also strengthens mechanisms for notifying illegal content to relevant hosting services and online platforms.

For further information, we invite you to consult our article: “Strengthening Intellectual Property rights protection against counterfeiting on marketplaces”.

A graduated response based on evidence and speed

An alert is useful only if it can be legally characterised and documented. Dated screenshots, samples, invoices, seller information, shipping data and comparisons with the genuine product should be preserved using a method that allows subsequent evidential use. This stage determines which measure will be most effective.

More specifically, regarding the preservation and evidential value of content published online, we invite you to consult our article: “Can the Wayback Machine archives be relied upon as evidence on the Internet?”.

Depending on the infringement, the response may combine removal of a listing, disabling of content, action against a domain name, customs detention or destruction, a cease-and-desist letter, an infringement seizure, or civil or criminal proceedings. The objective should not be limited to removing one isolated offer: wherever possible, each intervention should generate intelligence about sellers, suppliers, payment methods and technical infrastructure in order to disrupt the network on a lasting basis.

Conclusion

Combating counterfeit alcoholic beverages requires an overall strategy. The principal trademark remains essential, but it is not sufficient where fraud targets the contents, bottle, packaging or origin of the product. A robust approach combines complementary rights, authentication tools, customs cooperation, digital monitoring and rapid action based on strong evidence. This coordination helps protect consumers, preserve brand reputation and increase the effectiveness of enforcement against organised networks.

This cross-border approach is central to the work of a French intellectual property lawyer advising brand owners in regulated consumer sectors.

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 & 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

Can a wine or spirits bottle be protected simultaneously by a trademark and a design?

Yes, where the requirements specific to each right are met. A trademark protects a sign capable of identifying commercial origin, while a design protects the appearance of the product or its packaging. The same bottle may therefore benefit from cumulative protection, provided in particular that the shape is distinctive for trademark purposes and is new and has individual character for design purposes.

Can a designation of origin be invoked independently of a trademark against a fraudulent beverage?

Yes. Designations of origin and geographical indications are protected under specific regimes that are distinct from trademark law. Depending on the facts, the same marketing activity may infringe both a trademark and a geographical indication, allowing complementary legal grounds to be considered.

What evidence should be preserved when making a test purchase of a suspicious beverage?

The traceability of the purchase should be preserved: the listing or sales page, displayed seller identity, date and price, order confirmation, payment method, shipping packaging, labels, any invoice and the product received. Where the matter is sensitive, the collection method should be defined in advance in order to preserve the evidential value of the findings.

How can a limited edition, special cuvée or vintage be protected against copies?

The strategy depends on the elements that are genuinely distinctive: a specific name, label, decoration, bottle shape, gift box, graphic combination or communication materials. A limited edition often warrants a dedicated audit before launch so that useful filings and evidence of creation or use can be secured.

Is a QR code, NFC chip or blockchain solution sufficient to prove that a bottle is authentic?

No, not by itself. These devices can strengthen traceability and enable technical verification, but their evidential value depends on the reliability of the system, data security and the demonstrable link between the identifier and the product. They should form part of a broader authentication and evidence policy.

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

A plant variety rights (PVR) licence agreement must do more than authorise the sale of seeds or plants. To exploit a protected plant variety without undermining the breeder’s investment, it must define permitted acts, organise plant-material traceability, remunerate exploitation and plan the parties’ exit. The essential clauses therefore concern the scope of rights, exclusivity, royalties, quality, monitoring and termination.

The French framework is set out in particular in Article L. 623-4 of the French Intellectual Property Code, while unitary EU protection is governed by Regulation (EC) No 2100/94. Drafting must reflect the right actually held rather than assume that a French authorisation permits exploitation throughout the European Union.

Which rights must be verified before signing a PVR licence?

Identify the variety, right holder and territory

The contractual schedule should identify the species, variety denomination, title number, owner, protected territories and expiry date. We recommend checking the right’s status in the INOV or Community Plant Variety Office (CPVO) registers, together with any pre-existing licences, security interests and joint ownership arrangements. Where different PVRs cover different territories, their relationship should be stated expressly.

Document the authorisation and required registrations

In France, Article L. 623-24 refers to Article L. 613-8: a licence must be made in writing, failing which it is void. The recording of licences in the national PVR register is provided for by Article R. 623-40; its implications for third-party enforceability should be considered. At EU level, Article 27 of the Regulation permits exclusive or non-exclusive exploitation rights.

For further guidance on plant variety rights and filing, see our article: “Filing a plant variety right in the European Union: what legal and administrative checklist should be followed?”.

Which clauses precisely define permitted exploitation?

Define permitted acts, distribution channels and exclusivity

The agreement must distinguish production, propagation, conditioning, import, export, distribution and sale, which are legally distinct acts. It should specify authorised material (seeds, cuttings or plants), territories, customer categories and sales channels. Exclusivity may be linked to minimum sales targets, with conversion to non-exclusivity if targets are missed; it should never be assumed.

Propagation and sublicensing: two separate permissions

Lawful purchase of plants does not necessarily authorise further propagation: Article 16 of the EU Regulation notably preserves this restriction despite exhaustion of rights. Engagement of a nursery, propagator or sublicensed distributor therefore requires express permission, monitoring duties and a clear allocation of contractual responsibility.

Respect statutory exceptions and derived varieties

A licence must not present the breeder’s right as unlimited. Article L. 623-4-1 provides exceptions, notably for experimentation and breeding other varieties, while essentially derived varieties remain subject to specific rules. Farm-saved seed is governed, for eligible species, by Articles L. 623-24-1 et seq. An improvement clause must therefore distinguish exchanged know-how, new varieties and rights reserved by law.

Control initial material, quality and variety denomination

Specify who supplies the initial material, its plant-health and varietal specifications, testing methods, tolerances and treatment of non-compliant batches. Seed certification and marketing requirements apply independently of PVR protection. The official variety denomination must remain identifiable: Article 17 of the Regulation governs its use even where the product is sold under a separate trademark.

For a closer examination of this distinction, see our article: “How to secure the choice of a plant variety denomination?”.

How can the licence protect revenues and ensure control?

Royalties, reporting and volume audits

Consider combining an upfront fee, a guaranteed annual minimum and royalties per unit produced or sold. Define the royalty base, unsold goods, returns, crop losses, exchange rates, taxes and payment dates. Periodic reporting by variety, batch and country, reconciled against production records, supports effective auditing. Provide reasonable access to records, audit confidentiality and cost allocation where a material discrepancy is identified.

To make reporting auditable, the agreement should specify which supporting documents must be retained:

• Delivery notes and batch numbers for plant material.
• Propagation, loss and destruction records.
• Sales declarations and royalty supporting records.

For further information on the economic value of plant varieties, we invite you to consult our previously published article: “Plant Varieties: From Protection to Competitiveness – Building an Effective Intellectual Property Strategy”.

Which clauses address disputes and the end of the licence?

Allocate responsibility for infringement

Identify who:

• monitors the market,
• preserves evidence,
• reports infringements,
• decides on proceedings, with documentary cooperation from the licensee.

No contractual provision can exempt the parties from verifying their rights to bring legal proceedings under the applicable national or European legal framework, particularly those provided for under Article L. 623-25 of the French Intellectual Property Code.

Plan expiry, termination, stock and material return

The licence term cannot confer exclusive statutory rights beyond the right’s validity. Define material breaches, cure periods, cessation of propagation, treatment of existing batches, any permitted sell-off of authorised stock, return or destruction of material and a final audit. The governing law, competent courts and any negotiated dispute-resolution mechanism should also be expressly agreed.

Conclusion

An effective plant variety rights licence agreement turns a general authorisation into verifiable rules for production, marketing and remuneration. Its strength lies in aligning the protected right, plant material, distribution channels and compliance mechanisms. We assist breeders, seed companies and industrial partners with the negotiation, commercialisation and enforcement of plant variety rights.

Dreyfus Law Firm assists its clients in managing complex intellectual property cases, offering personalised advice and comprehensive operational support for the complete protection of intellectual property.

Dreyfus Law Firm works in partnership with a global network of attorneys specialising in Intellectual Property.

Nathalie Dreyfus, with the support of the entire Dreyfus team

Q&A

Can a PVR licence be agreed before the certificate is granted?

An agreement may regulate future or conditional exploitation, but enforceable rights depend on the application’s status and the governing rules. Trial authorisations, supply of material and commercial exploitation should be distinguished, with consequences stipulated in case the application is refused.

What happens if a PVR is declared invalid during the licence term?

Invalidity may undermine the basis of certain obligations. The parties should anticipate the treatment of royalties already paid, independent services, existing stock and warranties without assuming that full repayment will be automatic. The outcome depends on the governing law and contractual terms.

Does a change in the licensee’s ownership require the breeder’s consent?

Not necessarily. A share transfer is not in itself an assignment of the contract. However, a change-of-control clause may require prior notice, consent in defined situations or termination if a competitor acquires control, subject to the applicable law.

How should agronomic data collected during the licence be handled?

The agreement should identify who generates the data, permitted uses, trade secrets and data handover on termination. Any personal data requires separate GDPR-compliant treatment; confidentiality alone does not determine ownership or subsequent reuse of the results.

Can several protected varieties be included in one licence?

Yes, provided that an updatable schedule identifies each variety’s title number, territory, expiry date, royalty and technical conditions. This prevents an amendment, surrender or expiry affecting one right from unnecessarily disrupting exploitation of the other varieties.

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

Artificial intelligence can be legally protected, but not through one single right. An AI solution combines code, mathematical models, parameters, data, architecture and know-how. Each component should therefore be matched with the appropriate regime: copyright, patent law, trade secrets, database rights or contracts.

This approach must be coordinated with Regulation (EU) 2024/1689, the AI Act, generally applicable since August 2, 2026, and with the GDPR where personal data is involved. These rules do not create ownership rights in AI itself, but they directly affect design, documentation and asset value.

In an AI project, economic value does not lie solely in the code: it may also arise from data selection, training parameters, fine-tuning methods, the integration architecture or internal procedures used to improve system performance. An effective protection strategy should therefore cover the entire value chain.

Copyright: protecting code without monopolising the algorithm

Under French law, software is protected by copyright pursuant to Article L.112-2(13) of the French Intellectual Property Code. Directive 2009/24/EC protects the expression of a program and preparatory design material where original.

The judgment delivered by the Full Court of the French Court of Cassation on March 7, 1986 (French Court of Cassation, Full Court, March 7, 1986, No. 83-10.477 – Pachot) recognised that software may be protected where its author demonstrates an individual creative effort going beyond the mere implementation of automatic and compulsory logic, while the Court of Justice of the European Union, in its judgment of July 16, 2009 (CJEU, July 16, 2009, Infopaq International, C-5/08), more broadly established the requirement that a work constitute the author’s own intellectual creation in order to satisfy the originality criterion. Source code, object code, certain modules and technical documentation may therefore be protected automatically where originality can be shown.

Where AI generates or completes code, evidence of human contribution becomes important. Version histories, repositories and an INPI e-Soleau filing may help document creation. For employees, Article L.113-9 of the French Intellectual Property Code provides, subject to its conditions, for the transfer to the employer of economic rights in software; contractor agreements should contain the necessary assignments.

This is particularly important where several individuals or tools contribute successively to the same development. Businesses should distinguish elements actually created by developers, components taken from third-party libraries, portions generated with AI assistance and pre-existing modules integrated into the product. Copyright protection therefore does not remove the need for a code-provenance and licence audit. Model weights, parameters or training methods that do not themselves constitute original expression of a computer program will often depend more heavily on trade-secret protection, contracts and technical confidentiality measures.

For further insight into the copyright protection of software developed with the assistance of artificial intelligence, we invite you to read our article: “AI-generated software: Is your code really protected by copyright?”

Patents: protecting a technical contribution

Article L.611-10 of the French Intellectual Property Code and Article 52 of the European Patent Convention exclude mathematical methods and computer programs claimed “as such”. An AI-related invention may nevertheless be patentable where it solves a technical problem. The EPO Guidelines for Examination 2026 on AI and machine learning confirm that a model or algorithm may contribute to technical character where it genuinely participates in the technical solution.

The application should identify a concrete technical effect. Merely automating a commercial rule will generally be insufficient. The decision issued by the Enlarged Board of Appeal of the European Patent Office on March 10, 2021 (EPO, Enlarged Board of Appeal, March 10, 2021, G 1/19) confirms that the technical character of a computer-implemented invention cannot arise solely from the fact that it involves calculations or a simulation, but requires those elements to contribute to a technical effect within the claimed invention.

Technical character is nevertheless only one part of the analysis. As with any invention, an AI-related solution must also satisfy the requirements of novelty, inventive step and sufficiency of disclosure. Drafting is therefore critical: the application should explain with sufficient precision how the AI contributes to the claimed technical result and, where that effect depends on particular characteristics of the training data or learning process, disclose the information needed for the skilled person to reproduce the invention. A claim that merely refers to the use of an “AI model” without defining its technical contribution may therefore be inadequate.

For further information on the circumstances in which an artificial intelligence model may benefit from patent protection, we invite you to read our article: “How to protect an AI-trained model?”

Trade secrets, data and contracts: protecting ancillary assets

Beyond intellectual property rights, several mechanisms may protect assets associated with an AI system.

Trade secret protection, governed in particular by Law No. 2018-670 of July 30, 2018 and Article L.151-1 of the French Commercial Code, may apply to confidential information such as model weights, hyperparameters, certain training methods or proprietary datasets. Such protection nevertheless requires concrete confidentiality measures, including restricted access, encryption, traceability and appropriate contractual provisions.

Training databases may also, subject to the applicable conditions, benefit from the sui generis right provided for under Article L.341-1 of the French Intellectual Property Code, where substantial investment has been made in their creation. This protection must be distinguished from rights in the individual materials contained in the database and from the licences authorising their use.

Finally, agreements with employees, contractors or partners should define the conditions governing access to data, fine-tuning, confidentiality and exploitation of the resulting model.

For further insight, see our article: “Protecting data in AI: what lessons can be learned from recent U.S. decisions?”

AI Act and GDPR: aligning protection and compliance

The AI Act does not grant IP rights to an AI system, but it affects documentation. For general-purpose AI models, Article 53 notably requires a copyright-compliance policy and a sufficiently detailed summary of training content.

Where personal data is used, the CNIL recommendations on AI development stress purpose, lawful basis, minimisation and security. Third-party models, open-source libraries and code-generation tools also require licence review: provider terms do not remove the need to assess third-party rights.

Compliance and asset protection should therefore be addressed together. Structured records of data sources, model versions, design choices, licences and security measures can both support regulatory compliance and establish the traceability of the know-how developed by the business.

For further information on the processing of personal data in the development and use of artificial intelligence systems, we invite you to read our article: “AI and Data privacy”

Protection strategy

Businesses should :

• Map their code, models, data and know-how,
• Identify contributors,
• Select the appropriate protection for each asset, and
• Preserve evidence of ownership, data provenance and licences.

Effective protection of AI therefore results from a combination of rights and organisational measures, rather than from a single registration.

An operational audit can usefully take the form of a matrix recording, for each component, its origin, owner, intended form of protection, licence restrictions, available evidence and authorised users. This approach quickly reveals weaknesses in the chain of rights and facilitates licensing, partnerships, investment and due-diligence exercises.

Conclusion

Can artificial intelligence be legally protected as software? Yes, if protection is structured component by component. Copyright may protect original software expression; patents may cover technical inventions; trade-secret and database law may secure non-public assets; and contracts organise ownership and use rights. AI Act, GDPR and licence compliance should be considered from the design stage.

The strategy should therefore be defined before the product is disclosed and reassessed whenever the system changes materially.

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

Can artificial intelligence be protected by copyright?

Original code and documentation may be protected; ideas, functionality and abstract algorithms are not.

Protection focuses on elements reflecting creative choices attributable to a natural person. The more a development relies on automated generation without identifiable creative input, the more important it becomes to document the human choices, corrections and decisions that led to the final version.

How can an AI system incorporating open-source components be protected?

The use of open-source components does not prevent certain proprietary elements of an AI system from being protected, but it requires careful identification of the applicable licences and their obligations. Depending on the licence, specific requirements may apply to redistribution, access to source code or the reuse of modifications.

Maintaining a clear inventory of the components used and their licences helps determine which elements may remain proprietary and which are subject to specific obligations before commercial exploitation.

Who owns code generated with AI?

It depends on human contribution, the developer’s status, contracts, tool terms and possible third-party rights. The use of AI does not, by itself, determine ownership.

The rules applying to employees and contractors, as well as the chain of rights in third-party components, must also be reviewed. An AI tool’s terms may govern the relationship with its provider, but they do not by themselves guarantee that no third-party rights subsist in code used or generated.

How can training data and model weights be protected?

Through trade secrets, database rights and contracts, depending on their nature and confidentiality.

For trade secrets, confidentiality must be supported by effective and proportionate measures. For databases, any protection of the database itself does not automatically mean that the business owns all rights in each individual item contained in it.

Must a business choose between patents and trade secrets?

Not necessarily. A single solution may combine a patent for a technical invention with secrecy for parameters, data or training methods.

The choice will depend in particular on whether infringement can be detected, the risk of reverse engineering and the ability to keep information confidential over time. A patent requires disclosure in exchange for a time-limited exclusive right, whereas secrecy can continue for as long as the legal conditions remain satisfied.

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.

In an economic environment where the appearance of products is a decisive factor in competitive differentiation, design law stands out as a protection tool that is still too often underestimated. Yet this intellectual property right gives its owners exclusive control over the visual appearance of their creations, whether it concerns the shape of an object, its lines, colours, ornaments or texture, thereby providing a genuine commercial advantage in markets where aesthetics have become a value proposition in their own right.

A design should therefore not be treated as a mere administrative formality completed after a product launch. When considered upstream, it becomes a genuine lever for differentiation, valuation and competitive defence.

1. Design: much more than an aesthetic choice

For a long time, design was perceived as a secondary attribute of a commercial offering, a form of packaging refined once the product had been technically finalised. That view is now outdated. Consumers no longer buy only products: they buy experiences. The visual appearance of a product shapes users’ perception of it, builds trust and creates the emotional connection that fosters long-term loyalty.

The more successful a design is, the more it attracts imitators. Its strength is also its greatest vulnerability. The case of Loro Piana v. Eleante Fashion No. 1570/2025, decided by the Turin court in 2025, provides a recent illustration of this: it was precisely because Loro Piana, an Italian luxury brand specializing in high-end textiles, ready-to-wear clothing, and accessories, had registered its designs that it was able to take effective action against counterfeiters and preserve the value of its creations.

2. What qualifies as a protectable design?

Definition

Within the meaning of Regulation (EC) No. 6/2002 on Community designs,, as amended by Regulation (EU) 2024/2822 of 23 October 2024 a design remains defined as the appearance of a product or part of a product resulting from its lines, contours, colours, shape, texture, materials and/or ornamentation. However, since the 2024 reform, this definition now also includes “movement, transition or any other sort of animation”, considerably broadening the scope of protection.

To find out more, we invite you to read our blog article on the changes resulting from the design reform applicable from 1 July 2026.

Conditions for protection

To benefit from this protection, the design must meet two essential criteria:

• Novelty: the design must not have been disclosed to the public before filing, subject to certain exceptions;
• Individual character: the design must produce an overall visual impression that differs from existing designs.

The following may therefore be protected:

• lines, contours, shapes, textures and materials;
• colours and ornamentation;
• movements, transitions and animations, particularly for digital interfaces;
• packaging, interior and exterior configurations;
• graphic elements: logos, icons and typefaces.

However, certain subject matter remains excluded from the scope of protection: computer programs, abstract ideas or methods, purely functional shapes, simple words, isolated colours which fall more within the scope of trademark law and olfactory or sound creations. This distinction is essential in order not to confuse design law with other branches of intellectual property, particularly copyright or trademark law, with which it has areas of overlap but is not identical.

We invite you to read our complete guide to the 2025 reform on design protection.

Designs and copyright: do not confuse them

Design law protects the appearance of a product; copyright protects an original intellectual creation, such as a drawing, text or musical work. These two regimes may overlap, but their conditions of access, duration and enforceability differ significantly. Registering a design provides greater legal certainty: it creates a presumption of ownership and facilitates infringement proceedings.

3. The protection mechanisms available in Europe

Several protection routes coexist, and the choice between them must be made according to the company’s commercial strategy and target markets.

Registered vs. unregistered design

• A registered European Union design provides an initial protection period of five years, renewable up to a maximum of twenty-five years, and applies throughout the European Union through a single application filed with the EUIPO.
• An unregistered European Union design arises automatically from the first disclosure within the EU and provides protection for three years. While it has the advantage of requiring no formalities, it is much harder to enforce: the rights holder must prove not only ownership but also the act of copying, and cannot rely merely on a close resemblance.

Thus, filing and registering a design gives its owner an exclusive right valid for up to 25 years, allowing the owner, among other things, to prohibit any unauthorized reproductions or imitations that are too similar to the registered design.

What geographical scope?

There are four main options:

• an EU filing with the EUIPO, covering all Member States;
• national registrations, providing country-by-country protection;
• regional systems, such as Benelux, offering intermediate coverage;
• international protection through WIPO, under the Hague Agreement, allowing coordinated extension in several designated states.

European registration remains the most efficient solution for companies operating in the internal market: a single application, in a single language, covering all 27 Member States. Provided the application meets the applicable requirements, a European Union design is generally registered within approximately ten business days. This timeframe can be reduced to two business days under the Fast Track procedure.

4. When should a design be filed to protect a competitive advantage?

The critical moment: before any disclosure

The timing of the filing determines the effectiveness of the entire protection strategy. The rule is simple: file before involving anyone outside the development team.

Protection should be considered:

• before any trade fair or professional exhibition;
• before publication on a website or any communication medium;
• before any official launch.

French law provides for a twelve-month grace period following the first disclosure, during which an application may be filed without loss of novelty. However, this mechanism is far from offering complete security: it is not harmonised worldwide and does not neutralise competitors’ reactions, since once your design is visible, they may legitimately draw inspiration from it in unprotected territories.

The most common filing mistakes

The European filing procedure is inherently simple. The real difficulty lies less in the formality itself than in the quality of the visual representations submitted.

Two recurring mistakes compromise the value of a registration:

• Insufficient visual representations. The image must isolate and highlight the distinctive aesthetic elements of the design. An unedited photograph or a poorly framed 3D rendering may result in incomplete protection, or even protection that is unusable in litigation. The value of a filing largely depends on the quality of the visual representations submitted.
• Focusing on the wrong elements. Purely technical or functional elements cannot be protected under design law. Similarly, trademark elements such as logos or trade names fall within trademark strategy and must be protected through a separate route. Only the aesthetic features that contribute to the individuality of the product should be highlighted.

It should also be noted that the EUIPO does not examine at the time of filing: novelty, individual character, conflicts with earlier rights. This review is the responsibility of the rights holder: a registered design filed without a prior search for earlier rights is a fragile legal protection, liable to be invalidated in the event of a dispute. In the context of an EUIPO filing, the applicant’s vigilance remains essential.

Deferred publication: Protecting without disclosing

A little-known but valuable feature: it is possible to request deferment of publication for up to thirty months after filing. The company can thus secure its rights while maintaining the confidentiality of its design: a significant competitive advantage in highly innovative sectors, particularly ahead of major commercial launches.

5. Design as a strategic asset

Beyond its defensive function, design law fulfils four fundamental strategic roles:

• Obtaining exclusive rights over the appearance of its products, a company creates a lasting barrier to entry against competitors.
• Managing risk IP as insurance: a properly structured design portfolio enables a company to act quickly and effectively against copying.
• Creating value: intellectual property rights are assets recorded on the balance sheet and may be valued, assigned, contributed or licensed. They increase the company’s attractiveness in the eyes of investors.

Conclusion:

Design rights become a business advantage when they are used prior to disclosure, aligned with target markets, and integrated into the commercial strategy. They help protect the appearance that drives customer preference, deter imitators, support brand value, and strengthen negotiations with partners.

The right approach is not to file late to mitigate a risk, but to build a coherent portfolio that secures the value created by design.

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 :

What is the difference between a design and a trademark?

A design protects the appearance of a product its shape, lines and ornamentation for a limited period of up to 25 years. A trademark protects a distinctive sign, such as a name, logo or colour, that identifies the commercial origin of a product or service, without any time limit provided it is renewed and used. The two rights are complementary and may coexist on the same product.

Can the interface of a mobile application be protected by a design?

Yes. Since the reform of the Community design regulation, user interfaces, icons, animations and digital transitions are explicitly eligible for design protection. This is an increasingly important issue for companies in the digital sector.

How much does it cost to file a design with the EUIPO?

The official fee for a simple EUIPO filing is €350 (as of the date of publication of this article). In addition to these official fees, you will also need to pay the fees of the attorney assisting you with this application.

What is deferred publication and what is it used for?

Deferred publication makes it possible to delay the publication of a registered design for up to 30 months after the filing date. This tool is particularly useful for companies wishing to legally secure their design before commercial launch, without revealing their creative direction to competitors.

Is design law compatible with copyright protection?

Yes, the two forms of protection may be combined. In France, the theory of unity of art has long recognised that aesthetic creations, whether applied to industry or to the fine arts, may benefit simultaneously from both regimes.

What happens if I file too late, after having already disclosed my design?

In the EU, a 12-month grace period from the first disclosure allows a filing to be made without loss of novelty

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.