Influencers: be careful not to promote counterfeit products!

Written by Dreyfus15/09/2021

The Internet has changed the way we do business. From now on, advertising agencies are no longer the only ones to promote their client’s products; influencers have become the privileged interlocutors of brands wishing to make their products successful. If this approach does not seem abnormal, legal actions are flourishing against these people, for trademark infringement.

In a recent case, “Petunia Products, Inc. V. Rodan & Fields, et al.”, the plaintiff Petunia Products (“Petunia”) filed a complaint against Rodan & Fields for infringement of its trademark “BROW BOOST”. The latter had hired the influencer Molly Sims in order to promote its “Brow Defining Boost” product. On August 6, 2021, Federal Judge Cormac J. Carney dismissed the influencer’s motion to dismiss the complaint of alleged trademark infringement, in particular, because the plaintiff had succeeded in demonstrating that the promotion of the contested product could mislead consumers and create a likelihood of confusion between the prior trademark and the defendant’s product.

In particular, the judge argued that the Federal Trade Commission (FTC) declared that influencers and celebrities could be held liable for false or, at the very least, misleading advertising. Judge Carney drew a parallel with the case at stake and considered that every statement made by an influencer could amount to liability. Besides, and this is the main point of the first decision in this case, the judge took into consideration the risk of confusion, keystone of any claim for trademark infringement. In this case, this risk was genuine since the products were in direct competition with each other, from two competing companies operating on the same market, with a very similar name.

However, this decision must be balanced insofar as Judge Carney only ruled on the motion to dismiss filed by the influencer.

Concept and role of the influencer

It is necessary to understand the legal definition of “influencer”. In the opinion in Maximian Schrems v. Facebook Ireland Limited, Advocate General Bobek defines influencers as “everyday, ordinary internet users who accumulate a relatively large following on blogs and social media (…)”.

The French Authority of professional regulation of advertisement (ARPP) defines an influencer as “an individual expressing a point of view or giving advice in a specific field (…)”. It adds: “an influencer can act in a purely editorial framework or collaboration with a brand for the publication of content (product placement, (…), distribution of advertising content, etc.)” (free translation).

The influencer, therefore, has the power to direct the choices of the people following him/her, which is all the easier as the social networks on which they act are increasingly simple of use and accessible to the greatest number. Because of this ease of use, two American influencers, Kelly Fitzpatrick and Sabrina Kelly-Krejci promoted counterfeit products on Instagram and TikTok for sale on the Amazon platform. Amazon, therefore, filed a lawsuit on November 12, 2020 against the two women for fraudulent promotion of counterfeit products.

What is the influencer’s responsibility?

First of all, and Judge Conrey noted this in his decision, the influencer must state on the publication that the promotion of the brand results from a collaboration with the latter.

In France, this is also a recommendation of the French Professional Advertising Regulation Authority but most of all a legal obligation, which the French law for confidence in the digital economy (LCEN) of 2004 had already formulated. If the influencer can escape the net and not be found guilty of trademark infringement within the framework of a collaboration (that would be different if he/she promotes an infringing product directly), he/she could, be found liable of parasitism, unfair competition or misleading commercial practice, all three of which are heavily sanctioned under Article 1240 of the French Civil Code.

However, it is noteworthy that the influencer bears the weight of his/her responsibility concerning the information he/she publishes! Therefore, if a plaintiff can prove that the influencer in question was fully aware that the product he/she was promoting infringes on a third party’s rights, then it is likely that a judge would find the influencer and the company that contacted said influencer guilty of trademark infringement, either jointly or individually. Again, the judge will also consider the extent to which the product advertised by the influencer could confuse the public mind.

Hence, being an influencer is not without risks, and the partnership agreement concluded with a company must be carefully examined beforehand. Analysing the environment is essential as well as the product to be promoted must not infringe upon the prior rights of a trademark, even more so a competitor.

Dreyfus is at your disposal to assist you in securing these projects.

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How does the new Civil Code of the People’s Republic of China facilitate the protection of IP rights?

Written by Dreyfus21/07/2021

The Third Session of the 13th National People’s Congress (NPC) voted and passed the “Civil Code of the People’s Republic of China” on May 28, 2020. This law came into force on January 1, 2021.

The fundamental objective of this Civil Code is to facilitate the protection of people’s extensive civil rights and provide sufficient remedies for right holders whenever their IP rights are infringed upon especially when it comes to counterfeiting.

Apart from serving as a policy instrument for stimulating innovation, intellectual property (IP) rights have always been considered a significant category of private rights. The intellectual property regime, thus, is deeply rooted in and closely related to the civil law system.

While referred to by the Chinese press as the Encyclopedia of Social Life, the new Civil Law includes many provisions related to intellectual property (IP). At first read, the most striking IP provision is for punitive damages for intentional infringement, which will be potentially most valuable in patent infringement cases and especially in cases related to counterfeiting.

Article 1185 (out of 1260 articles) states, with reference to IP, “if the circumstances are serious, the infringed person shall have the right to request corresponding punitive damages”. This actually aligns with the newly amended trademark law that provides for increased punitive damages.

Article 63 of the trademark law, as amended in November 2019, increased punitive damages from three times to five times the amount of assessed damages when infringement is “committed in bad faith and the circumstance is serious.”

The United States has called China the “world’s principal IP infringer”. In a 2017 report, the US bipartisan Commission on the Theft of American Intellectual Property estimated that counterfeit goods, pirated software and the theft of trade secrets cost the US economy between US$225 billion and US$600 billion annually, not including the full cost of patent infringement.

China, meanwhile, has signaled that IP protection is a priority in its 14th five-year plan for 2021 to 2025, as part of its strategy to move towards self-reliance in critical technology.

Government economic planners detailed how they intended to strengthen the protection of IP and raise high-value patent ownership over the next five years, and Beijing is this year set to reveal its strategic plan to make China a global IP power by 2035.

In both the Chinese Patent Law and the Copyright Law, which will come into effect on June 1 2021, the applicable elements of punitive damages are “intentional infringement” and “aggravated circumstances“ according to the China Civil Code.

Therefore, punitive damages will be more actively applied by the Chinese courts when handling IP cases in the future.

The introduction of punitive damages into IP infringement disputes will help improve the protection of intellectual property rights, promote technology progress and innovation, and build a healthier market for investment.

The implementation of the Civil Law in China is not just a declaration to strengthen the protection of civil rights. It opens a new era by protecting IP rights.

The new Civil Code is demonstrating China’s resolute attitude toward malicious IP infringement, concrete articles and complementary civil principles could enhance the protection of IP rights in China.

In order to provide our clients with a unique expertise, necessary for the exploitation of intangible assets, we keep you informed about intellectual property and digital economy issues with our articles written by the Dreyfus legal team.

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Filing a trademark on behalf of a company in the process of creation: who may bring a trademark infringement action?

Written by Dreyfus22/02/2021

It is common for trademarks to be filed by individuals acting on behalf of a company in the process of creation.

The founder of the company is then the regular owner of the trademark until the company in question takes over the filing. Therefore, the founder may initiate proceedings, in the meantime, in case of trademark infringement.

But what happens if the company that was supposed to be created and, therefore, become the owner of the trademark, is never formed?

The French Supreme Court expressed its view in a decision dated October 14, 2020. Ms. T, who had registered the trademark “Dousè Péyi” in the name of the company in the process of being created Dousè Péyi, filed a lawsuit against the company Sérénade des saveurs (Cass. Comm. 14 Oct. 2020, No. 18-23-965 T.c/ Sté Sérénade des saveurs).

The dispute concerned the filing of the trademark “Doucè Péyi”, almost identical to the earlier trademark.

Following this application, Ms. T sued Sérénade des saveurs for trademark infringement and unfair competition. The applicant raised a motion to dismiss the action, based on the lack of interest of the founder of the company to act in defence of a trademark registered on behalf of a company which was not yet created (see Article 31 of the French Code of Civil Procedure).

The company Sérénade des Saveurs claimed that Ms. T did not personally own the trademark. According to the defendant, since the company had never been created, Mrs. T should have recorded the change of ownership of the trademark at the INPI.

The first judges declared Ms. T’s action for infringement inadmissible for lack of interest in acting. The Court of Appeal confirmed this decision and stated that Ms. T “cannot claim ownership of this trademark in a personal capacity without having [recorded the change of ownership] on the National Trademark Register before initiating any action reserved to the owner of the trademark”. Otherwise, the change is unenforceable and any action in defence of the mark is therefore inadmissible.

Ms. T appealed to the Supreme Court and, rightly so, since the Commercial Chamber of the Court of Cassation ruled that the Court of Appeal had violated Article L210-6, paragraph 2, of the French Commercial Code, which establishes a system of taking over acts performed on behalf of a company in the process of creation: “every person who acted on behalf of a company in the process of creation before it acquired legal personality shall be held jointly and indefinitely liable for the acts thus performed, unless the company, after having been duly formed and registered, takes over the commitments entered into. Such commitments are then deemed to have been entered into from the outset by the company”.

The Supreme Court overturned the appeal decision and affirmed that in the absence of legal personality, the founder of the company, who registered the trademark, is the owner of the trademark and therefore Ms. T could rightly file a trademark infringement suit.

This solution guarantees the legal security of project leaders. The creation of a company can, in fact, take time. During this time, several acts must be accomplished and the law acknowledges their retroactive effect.

Filing a trademark in the name of a company in the process of creation is an interesting practice to enhance the value of the trademark assets and protect them against third parties that may file a similar or identical trademark while the company is not yet formed.

However, case law in this area is not consistent and requires to be attentive to details when filing a trademark.

In order for the company to automatically become the owner of the trademark at the time of its registration, a statement of the acts performed on behalf of the company while it being created should be made, which will be annexed to the articles of association, and should mention the filing of the trademark, indicating that the company takes over the legal act of filing on its behalf.

Dreyfus can assist you with the management of your trademarks portfolios in all countries around the world. Please feel free to contact us.

The impact of counterfeiting on consumers and businesses

Written by Dreyfus23/12/2020

Published in June 2020, EUIPO’s “2020 Status on IPR Infringement” report shows that e-commerce has fostered the phenomenon of counterfeiting. The majority of counterfeit products come from Asia. These products are reconditionned in smaller boxes in countries such as Albania, Ukraine or Morocco.

The Covid-19 pandemic has not diminished this trend. On the contrary, the online shopping has increased the trend as stated in the “2020 Consumer Buying Behavior Report” of the company Intelligence Node tracing consumer’s behaviour.

Due to the forced closure of stores, consumers increased their online purchases. Thus, the counterfeiting phenomenon expanded, as well. According to this report, most consumers are attracted by a cheaper price, but they are completely unaware that they are buying a counterfeit product.

The report shows that:

– More than 50% of internet buyers search Google, Amazon and other marketplaces before buying. They look for the product description, features, price and possible discounts.

This is what can lead them to choose websites promoting counterfeit products, since:

– 70% of buyers opt for counterfeiting for price reasons.

– 82% of the buyers had indicated that they would continue to buy online even when the stores reopen.

In addition, a survey published by the French consumer association UFC- Que Choisir, on October 22nd, 2020, showed that online frauds, on an online purchase, are not always reimbursed by banks. Only one out of three frauds per year was reimbursed last year. The bank generally blamed the consumer for negligence.

The new DSP2 Directive (European Payment Services Directive 2nd version) requires that the transaction must be confirmed by the bank through a “strong authentication” system, when making an online purchase. The French authorities have given a deadline for the first quarter of 2021 for all the banks to be compliant.

In light of these elements, companies must actively protect their intellectual property rights, including property on the Internet, to avoid the drop in sales and the loss of customers. Indeed, it is known that consumers who are victims of a scam will tend to turn away from the company whose products or services have been counterfeited.

An effective defence of the brand on the Internet is carried out through a strategy that includes prior searches and surveillance. The prior search provides a snapshot of the current situation of the trademark on the Internet (existing infringements, potential prior art in certain countries, etc.). The surveillance allows the detection of all domain name registrations reproducing or imitating the trademark, from the moment the surveillance is set up. It keeps in check any potential infringement as soon as it is detected.

How to protect plant varieties on an international level ?

Written by Dreyfus28/08/2020

Plant varieties offer many advantages to plant breeders, including a return on investment to cover research costs. Indeed, long years of work are generally required to develop new plant varieties (between 10 and 15 years for a large number of plant species).
Many breeders also wish to export internationally, but protecting plant varieties abroad is often complex.

European but also international legislations are harmonized by the application of the UPOV Convention (International Union for the Protection of New Varieties of Plants) which has 76 members.
Under this Convention, the breeder’s right is granted when the variety meets several conditions: novelty, distinctiveness, uniformity and stability. Finally, the variety must be designated by an appropriate denomination.

Protection in the European Union :

Filing of the application :

Since 1995 there has been a unitary Community title: the Community plant variety certificate. This title produces the same effects as a national title in each Member State.
However, this certificate cannot be cumulated with national plant variety certificate. Before applying, the breeder will therefore have to make a choice to protect his new variety.
The application for protection must be filed with the Community Plant Variety Office (CPVO). The French breeder can file his application directly with the CPVO but also with the INOV (National Plant Variety Office) which will forward the application to the CPVO.
In addition, there are certain requirements regarding the content of the application. For example, the following must be included:
– The names of the breeder and the representative of the procedure if any,
– Information concerning the botanical taxon (group of organisms),
– The provisional designation given to the variety,
– Information on the previous marketing of the variety,
– Information on previous applications for the variety,
– The deadlines relating to the priority,
– Proof of payment.

It is also necessary to complete a technical questionnaire and a form for the appointment of a procedural representative (if the applicant is not a within the European Union).

The criterion of novelty :
In order to meet the criterion of novelty, the varieties must not have been marketed for more than one year within the European Union and for more than 4 to 6 years (depending on the variety) outside the European Union. Beyond this period (known as the “grace period”), the variety will no longer be considered as new.

Protection during the Brexit :
The French holder of a Community plant variety right will not cease to be protected in the United Kingdom because of the Brexit. Indeed, the United Kingdom has announced the automatic creation of British plant variety titles which will be equivalent for all Community titles registered before the date of Brexit.

Extent of protection :
The extent of protection in the European Union is similar to that of the French legislation. Thus, the following will be subject to the holder’s authorization: production and reproduction, packaging for the purpose of propagation, offering for sale, sale or other marketing, export from the European Union, import into the European Union and storage for any of the above purposes.
The protection is also applicable to harvested products obtained without the consent of the breeder unless the breeder has had a reasonable opportunity to exercise his right and finally, it also applies to essentially derived varieties.

Protection during the provisional period:
During the provisional period (period between the filing of the application and the grant of the right) the breeder can assert his exclusive rights against all acts that would have required his authorization after the grant of the right.
However, the breeder will only be entitled to an “equitable remuneration”.

Counterfeit Prevention :

Finally, regarding customs surveillance to protect against counterfeiting, plant variety rights are included in the intellectual property rights subject to European Regulation 608/2013 of June 12, 2013 on the control by customs authorities of the enforcement of intellectual property rights.

International protection :
At the international level, legislation is largely unified by the UPOV Convention.
However, the Convention does allow national legislators to take into account national circumstances. The breeder must therefore inform himself in advance of any national specificities in order to ensure the protection of his titles in the best conditions.
Beware, that some countries are not members of UPOV !

The filing of the application :
During the filing of the application, the breeder has two possibilities:
– The filing of his application in each of the national offices;
– The filing of his application using the multilateral priority filing system UPOV PRISMA. This online system allows the breeder to file, through a single system, all his applications with the participating plant variety protection offices. However, one must be careful because some countries are not part of this UPOV PRISMA system such as South Korea, Japan or China (only for lettuce).
The breeder will also have to take into account the delays of the examination procedure which are on average 1 to 2 years. However, these periods can be much longer in some countries (sometimes more than 5 years for Japan or Russia for some fruit trees).

Protection during the provisional period :
During this provisional period, the breeder will also be protected, as in the case of the Community title, against acts requiring his authorization and will have the right to claim an equitable remuneration.

The criterion of novelty :
In the UPOV Convention, the grace period for the criterion of novelty, as for Community titles, will be one year within the country in which protection is sought, and 4 to 6 years outside that country. However, it is important to check the grace period in each of the countries concerned.

The extent of the protection :

Finally, the extent of the protection of plant variety titles is the same as that of the Community title in UPOV member countries due to the application of the Convention; provided that certain national particularities are taken into account.

If the UPOV Convention has allowed since 1961 to harmonize and establish a legislation protecting plant varieties in many countries, the breeder, wishing to develop internationally, will have to remain attentive to national legislations and their specificities.

To read more about Conflict between trademark and plant variety

World Anti-Counterfeiting Day: issues and challenges

Written by Dreyfus10/06/2020

In honor of the 22nd World Anti-Counterfeiting Day, Dreyfus Law Firm attended a Webinar organized by INDICAM(Istituto di Centromarca per la lotta alla contraffazione) involving directors of various anti-counterfeiting organizations: GACG, EUIPO, UNIFAB, INDICAM, ANDEMAand ACG.

Anti-counterfeiting issues are always of paramount importance. In fact, approximately 5% of imports into the European Union are counterfeit products. The counterfeiting market is very lucrative for counterfeiters: it requires a very low investment for a very high profit. In addition, the risks associated with it are lower.

During the health crisis linked to the Covid19, the sale of counterfeit products increased significantly: masks, hydro-alcoholic gel, medical equipment; and all this to the detriment of the population’s health. This phenomenon was particularly observed on Marketplace platforms, which were forced to invest impressive means to suppress fraudulent advertisements.

Consequently, the question arises: if the platforms are capable of actively combating the sale of counterfeit medical products in times of crisis, why cannot the same be said of other acts of counterfeiting? Cooperation with the platforms should therefore be initiated to this end. European associations are closely following the progress of the Digital Single Act, which should represent an additional opportunity in the protection of rights.

Moreover, during the health crisis, the fight against counterfeiting has mainly been focused on medical products and devices. As a result, many infringements went undetected. For example, only products arriving by air were checked during this period and not products imported via cargo ships. To make things worse, in Belgium, for example, all the police officers whose mission was usually to combat counterfeiting were requisitioned in order to enforce anti-Covid-19 measures.

With the coronavirus, the fight against counterfeiting must therefore be stepped up. One of the challenges for the years to come is to provide consumers with the best possible information. Delphine Safarti-Sobreira, Director of UNIFAB (Union des Fabricants), said that awareness campaigns were already being launched through various media, including television broadcasts and YouTube. The next step will be to convince the government to introduce compulsory education in schools on this subject.

Three elements are essential in order to fight effectively against counterfeiting: an effective law, more information for consumers and an unwavering determination to continue the fight.

Dreyfus can assist you in the management of your trademarks portfolios in all countries of the world. Do not hesitate to contact us.

UDRP Procedure: abuse of right or, when the complaint is brought in bad faith

Written by Dreyfus09/04/2020

Advice Group is an Italian company founded in 2006 and specialized in marketing. It is based in Turin but has offices in Rome, Bari and subsidiaries in Bulgaria, Kosovo, Portugal, Colombia and Peru.

Having noted the registration of the domain name <advicegroup.com> by a third party, the company turns to the WIPO Arbitration and Mediation Center for its transfer. The domain name was reserved in 2014 by Michele Dionia of Macrosten LTD, located in Cyprus. The domain name resolves to a page of commercial links and suggests that the name may be for sale (Internet users can make an offer).

The Respondent did not respond to the complaint.

The expert acknowledges the likelihood of confusion between the disputed domain name and the applicant’s Italian semi-figurative trademark, “A Advice Progressive Marketing Thinking”.

However, he decides not to rule on the issue of legitimate interest, referring to his observations on the issue of bad faith. Nevertheless, he makes several observations on the legitimate interest, in favor of the Respondent: the terms that make up the domain name are generic and the Respondent did not make active use of the name, he simply let the registrar promote its services and included a message advising Internet users to contact the registrant for the purchase of the name.

The expert also obviously did some research on his part, which he is not bound to do, since he notes that there are many companies called Advice Group throughout the world.

Concerning bad faith, the expert insists on the fact that at the time of the registration of the name, the applicant had not yet registered a trademark. The filing took place nine months after the reservation of the name in question and the obtaining of rights, two years later! Nothing suggests that the Respondent had the Complainant in mind when registering this domain name consisting of dictionary terms. Moreover, the fact that Internet users could propose the purchase of the name does not mean that the aim of Macrosten LTD was to resell it at a high price to Advice Group.

Thus, not only is the complaint rejected, but the expert also decides to qualify the complaint as a case of “reverse domain name hijacking”, i.e. it is considered that the complaint was filed with the sole purpose of depriving the domain name holder of the domain name. Here, the Complainant accused the Respondent of cybersquatting even though no evidence to that effect was provided and the name, consisting of generic terms, predates the Complainant’s trademark registration.

It should be remembered that proving the bad faith of a registrant when the domain name consists of generic terms is difficult. It is essential to show that the registrant had the applicant’s trademark in mind. In the present case, it can be assumed that even if the Complainant’s trademark had been older, this would not have been sufficient to ensure the success of the complaint. The setting up of a site similar to that of the Complainant or for the same activities, or contact made by the registrant are elements that make possible to constitute a relevant case . Here, the Complainant had no evidence to justify his position.

Dreyfus firm, an expert in trademark law, can help you by offering you unique online trademark management services.

The blockchain offers a modern and simplified register for the traceability of your Intellectual Property rights

Written by Dreyfus07/10/2019

With the appearance of the blockchain, monitoring the life cycle of the creation of your Intellectual Property by setting a specific registration date and ensuring the traceability of its evolution is a lot simpler. Opening the account is easy, as is backing up and viewing the data embedded in it.

What is a blockchain ?

The Blockchain is a database (a growing list of records, called ‘blocks’) that are linked using cryptography. Each block contains a cryptographic hash of the previous block, a timestamp and transaction data.

It is a reliable and transparent registry which everyone can access and contains the history of exchanges between users. However, once recorded, the data in any given block cannot be altered retroactively without alteration of all subsequent blocks, which requires consensus of the network operators. Material can be saved on this decentralized and secure system for an unlimited period of time.

Easy monitoring of the registration cycle

The blockchain is of great practical use in the traceability of intellectual property rights.

On the one hand, it is low cost and speedy. The decrease in costs can be explained by the fact of intermediaries are bypassed. As for its speed, all you need to do is open an account and download the document that includes the data concerning creation of your Intellectual Property.

On the other hand, all the steps concerning the creation of your Intellectual Property should be recorded ; whether it is the date of the first application for registration, of the first use in trade or an assignment etc. Similarly, operations such as mergers or acquisitions are more easily recorded via the database.

Confidentiality of data

The document containing information about your creation of the Intellectual Property is not stored in the blockchain, only its digital footprint. Accordingly, it is impossible for third parties to access its content, you are the only one having access to it. You can therefore be confident that your data will be safe.

A revolution in evidence

Thanks to the blockchain, proof of creation is made easier and the procedure made faster, the Blockchain giving certainty of the time and date. It also makes it possible to trace the exploitation of digital works on the web.

Nevertheless, to acquire incontestable force of proof, it is necessary to have the evidence concerned established by a bailiff. The bailiff is able to establish an indisputable proof of origin and anteriority before a judge.

Fight against counterfeiting

The blockchain is a register which cannot be falsified, providing proof of the authenticity of the creation of your Intellectual Property and thus limiting the possibilities of counterfeiting. This system indicates who is the author of the creation and therefore is a significant piece of evidence to establish the actual date of the creation.

Fight against counterfeiting

The blockchain has many advantages with regard to intellectual property rights. Whether it is security, transparency, lower cost, speed, ease of proof, confidentiality or even the certainty of authenticity : it has multiple strengths which are favourable to the protection of your creations.

With the service of the DreyfusBlockchain , we offer simple, effective and secure protection for your creations.

New French Decree on the protection of trade secrets : provisional sequestration of seized documents

Written by Dreyfus04/06/2019

French Decree No. 2018-1126 of 11 December 2018 on the protection of trade secret s, enacted in application of Act No. 2018-670 of 30 July 2018published in the Official Journal on December 13, 2018 establishes new rules to preserve trade secrets.

This decree modifies the rules of protection of confidentiality for seized documents. From now on a provisional sequestration will include protection of documents that may contain information related to trade secrets.

Prior to the entry into force of the French act on the protection of trade secrets judges actively used the sequestration to protect confidentiality of seized documents. This decree legalizes the jurisprudential practice by introducing the provisional sequestration of seized documents.

Article R 153-1 of the French Commercial Code now allows judges, to directly order the provisional sequestration of seized documents, based on Article 145 of the Code of Civil Procedure, in order to ensure protection of trade secrets.

The decree amends articles R. 521-2, R. 615-2, R. 623-51, R. 716-2 and R. 722-2 of the Intellectual Property Code in the same way in order to give the same powers to the judges who authorize infringement seizures.

However, it is only a temporary sequestration of seized documents. For a period of one month, the party or third party claiming that documents contain trade secrets may ask the judge to amend or withdraw his order.

According to Article R. 153-3 of the French Commercial Code, it is the responsibility of the party or third party claiming trade secrets to ask the judge to withdraw his order before a deadline set by the judge. It is up to the party to provide the following:

– The full confidential version of the document

– A non-confidential version or a summary of the document

– A statement specifying the reason why the document or a portion of the document is considered a trade secret

The judge may also hear separately the holder of the document, assisted or represented by an authorized person, and the party that appeals the order.

In case the party claiming that the document contains trade secrets has not sent an application to withdraw or amend the order within one month, the judge may rule on the total or partial lifting of the sequestration. If it is lifted, the documents can then be sent to the applicant.[/vc_column_text][/vc_column][/vc_row]

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