FRANCE

Report for the 2018 Congress of the International League of Competition Law Question B

Rapporteurs  : Linda Arcelin, Jean-Philippe Arroyo, Jean-Louis Fourgoux, Marc Lauzeral, Thibaut Marcerou, Maïa

Merli, Anne Servoir1.

Several intellectual property titles are recognized at the national level. This recognition comes from international and European texts (international conventions, directives and regulations of the European Union) as well as from the French Code of Intellectual Property ("CPI", in french).

These titles differ according to their specific object2 and their essential function.

Trademark law 3protects a sign that distinguishes the goods and / or services of a natural or legal person. The specific purpose is therefore to ensure the owner of a mark the exclusive right to use the mark and thereby protect him from any use of the mark's position and reputation by unauthorized third parties4. The essential function of trademark law is to guarantee to the consumer the origin of the goods or services covered by the sign5. The brand also has the functions of guaranteeing the quality of its products or services, of communicating, investing or advertising6, and can also constitute an instrument of commercial strategy7.

In theory, the mark benefits from the protection only if it is registered. Protection is then limited to the product (s) and / or service (s) designated in the registration. However, certain goods and / or services not designated in the registration may benefit from the protection provided that they enjoy the reputation of the registered trademark8. In addition, an unregistered but well-known brand for certain products and services will also benefit from protection9. The reputation of a mark shall be assessed on the date on which the sign in question is used, depending on the market share occupied by the mark, the intensity of its exploitation, its geographical extent, the duration of its use, or importance of the investments made by its holder10.

1 linda.arcelin@wanadoo.fr, jpharroyo@jpkarsenty.com, jlf@fourgoux.fr, marc.lauzeral@hoyngrokh.com, thibaut.marcerou@gmail.com, anne.servoir@hoyngrokh.com . 2 "The specific object is defined as the grouping together, among the prerogatives conferred by national law on the holder, those which tend to ensure or preserve the function of the right in question", Industrial Property Law, J. Passa, Volume 2, §473 Articles L.711-1 and following of the CPI4 ECJ, 31 October 1974, Centrafarm / Winthrop; CA Versailles, 1st December 2015, RG 14/057125 ECJ, 22 June 1976, Terrapin / Terranova6 ECJ, June 18, 2009, L'Oréal; CJEU, March 23, 2010, Google7 CJEU, 22 September 2011, Interflora8 Article L. 713-5 of the CPI9 Article L. 713-5 of the CPI and Article 6bis of the Paris Union Convention10 Illustrations: Com., February 8, 2017, No. 14-28.232; CA Paris, May 18, 2001, RG 1999/16840

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Patent law11 protects an invention provided that the applicant can establish novelty, inventive step and industrial application. This right thus has the essential function of rewarding the creative effort of the inventor12. The specific subject-matter of the patent consists of those of the prerogatives of the holder who, in a given situation, tend to perform this function13.

Design law14, on the other hand, protects the appearance of a new and distinctive product. Its specific purpose is the ability of the owner of a model to oppose the manufacture by third parties, for the purposes of domestic sale or export, of products incorporating the model or to prevent the importation of such products which would have been manufactured without his consent in other Member States15. The essential function will have been fulfilled when a product, object of a design, has been put into circulation in the European Union by the holder or with his consent under the monopoly he holds16.

The Intellectual Property Code17, particularly with reference to the code of consumption18, also envisages the protection of geographical indications (controlled designation of origin, geographical indications protecting industrial and artisanal products). Regulation (EU) 1151/2012 protects protected designations of origin. Geographical indications have an essential dual function19: the protection of legitimate operators20 and production areas as well as the guarantee for the consumer of the origin of products and the fact that the character of the product is due to its origin.

The Intellectual Property Code protects by copyright the original works of the mind21 by granting moral and economic rights to the author over his work. Its specific purpose is to confer on the holder the right to reserve exclusive rights to the reproduction of the protected work22. Thus, the essential function of copyright is to ensure the moral protection of the work and the remuneration of the creative effort23. Copyright protection can be combined with other intellectual property rights.

Finally, the CPI provides specific protections to technical areas:

(i) Rights Related to Copyright and Rights of Producers: The CPI24 establishes exclusive rights granted to certain assistants of literary and artistic creation, namely performers, producers of phonograms and videograms, and visual communication companies;

11 Articles L. 611-1 and following of the CPI12 ECJ, Centrafarm / Sterling Drug, October 31, 1974, aff. 15/74; Industrial Property Law, Volume 2, J. Passa, §52513 ECJ, Centrafarm / Sterling Drug, October 31, 1974, aff. 15/74; Industrial Property Law, Volume 2, J. Passa, §52514 Articles L.511-1 and following of the CPI15 ECJ, October 5, 1988, Renault, aff. 53/8716 Industrial Property Law, Volume 2, J. Passa, §81517 Articles L.721-1 and following of the CPI18 Articles L.431-1 and following of the Consumption Code19 Including ECJ, February 20, 1975, Sekt and Weinbrandtaff. 12/74; ECJ, May 20, 2003 aff. C-108/0120 Any person authorized to use the geographical indication concerned: producers, bottlers, distributors ... Article L. 722-2 of the CPI21 Articles L.111-1 and following of the CPI22 TPICE, July 10 1991, aff. T-70 and T-76/8923 TPICE, July 10 1991, aff. T-70 and T-76/8924 Article L. 211-1 and following of the CPI

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(ii) Databases25: the CPI recognizes to the producer of a database26 an exclusive "sui generis" right for a period of fifteen years.

(iii) Plant varieties27: any plant group of a botanical taxon of the lowest known rank may, under certain conditions, be the subject of a plant variety certificate which confers on its holder an exclusive right for a period 25 years from the date of issue;

(iv) The topography of semiconductor products28: the final or intermediate topography of a semiconductor product reflecting an intellectual effort of the creator may, unless it is common, be the subject of a deposit conferring a exclusive right of 10 years;

(v) Utility Certificates and Supplementary Protection Certificates29: the CPI provides on the same basis as patent law, a utility certificate which offers a 6-year protection and a supplementary protection certificate for pharmaceutical patents subject to a marketing authorization.

This list is exhaustive and limiting. Thus, any attempt by intellectual property rights to protect an essential function other than those defined will be considered fraudulent. For example, the Tribunal de Grande Instance of Paris30 refused to register a three-dimensional mark representing a pink implant, after considering that the applicant had in fact sought to perpetuate indefinitely the technical effect of the patent which had fallen into the public domain to prevent its competitors from marketing similar products, thus characterizing its bad faith when filing trademarks31.

Under French law, there is no legal provision stating that the scope of protection granted under an intellectual property right would depend on the type of distribution adopted by the owner of the rights implemented (open, selective or exclusive network). In the last two, the suppliers, rights holders, benefit from the provisions of the regulation on vertical restraints32. These allow, to a certain extent, to control the resale of contract products.

Nevertheless, the conditions for the resale of authentic products distributed through a selective distribution network may justify a legitimate ground allowing the proprietor of a mark to oppose further marketing of his products and to take advantage of the absence of exhaustion of the right on its mark33 (on the theory of the exhaustion of rights, see infra). However, unlike competition law, intellectual property law does not sanction the mere existence of a resale of an authentic product outside the selective distribution network. The Court of Cassation has, indeed, noted that such a practice does not constitute per se a legitimate ground allowing the sanction of an unlawful use of a mark34.

There are no legal provisions in French law expressly reserving certain after-sales services for the owners of intellectual property rights. Some rights, however, allow to reserve after-sales services to owners of intellectual property rights.

25 Article L. 341-1 to 343-4 of the CPI26 The producer of a database is understood as "the person who takes the initiative and the risk of the corresponding investments"27 Article L. 623-1 and following of the CPI28 Article L. 622-1 and following of the CPI29 Article L. 611-2 of the CPI30 TGI Paris, 22 février 201831 TGI Paris, 3rd Chamber, 4th Section, 22 February 2018, RG 14/0529232 COMMISSION REGULATION (EU) No 330/2010 of 20 April 2010 on the application of Article 101 (3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices33 Com., May 24, 2011, No. 10-1847434 Com., March 23, 2010, No. 09-66522

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The question arises more broadly with regard to repair services and the possibility of using spare parts or consumables. Beyond the existence of true intellectual property rights, product manufacturers or service providers in a primary market may be tempted to implement other processes to reserve a secondary market.

Especially in the case of spare parts, these can be protected under the designs law. In France, this specific regime remains very favorable to the rightholders, the legislator having refused to adopt a "repair clause". This exception is to neutralize the intellectual property right after the manufacturing stage (primary market), thus preventing it from being invoked at the maintenance and repair stage (secondary market). In France, although the

possibility of introducing a reparation clause in the CPI has been discussed several times in the context of draft laws or proposals35, it has nevertheless been ruled out, despite a report from the French Competition Authority. of 201236 (relating to auto parts) advocating it.

The CPI37 retains a broad definition of a complex product since "a product composed of multiple parts that can be replaced" is considered a complex product. In the case of French or international design designating France, the CPI provides protection for complex product parts as long as they have a new and clean character, this being only possible when "the part, once incorporated into the complex product, remains visible during normal use of this product by the end user, with the exception of maintenance, service or repair "38.

The definition laid down in Regulation (EC) No 6/200239 is more restrictive. As regards their protection, the French court points out that "(...) the piece of a complex product used within the meaning of Article 19 (1) of the Regulation, with the aim of making possible the repair of this complex product, with a view to making it its initial appearance is not protected under the Designs. "40

The intellectual property right holder may also attempt to protect the parts of a complex product through a figurative or three-dimensional trademark filing. Nevertheless, it will come up against the prohibition of complex marks whose shape is imposed by the nature of the product. As such, it was held that the electrical brand razor brand deposits are void, "the trademarked forms were attributable solely to the technical result, and it is of little importance that other reasons could have intervened in the choice that was made among other possible technical solutions »41.

Beyond the mere use of intellectual property rights, providers of primary products or services may be tempted to implement additional processes to limit the presence of competing products or services in the secondary market. The justifications put forward often relate to the quality of the product or complex service when there may be difficulties in terms of the compatibility of the various components.

However, these limitations can have negative effects by reducing the variety of secondary goods, setting the prices of these secondary goods, or by preventing the client from combining the primary good with the secondary good (s) that best match best his individual preferences.

35 Economy Modernization Act 2008, Hamon Act 2014, Growth Act (Macron) 201436 Notice No. 12-A-21 of October 8, 201237 Article L. 511-5 du CPI38 Article L. 511-5 of the CPI39 Article 3 of Regulation (EC) No 6/200240 TGI Paris, July 7, 2017, RG 15/00018, excluding from the definition of complex product the car rims41 Com., May 30, 2007, No. 05-16.898

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The use of these rights or other processes, by an undertaking operating on a primary market, may therefore be caught by competition law when its object or effect is to limit competition on the secondary markets. The means used can be varied and relate directly to intellectual property rights, such as the refusal to grant a license42 but also to give access to information necessary to offer services on the secondary market43 or to sell spare parts44 or

even, more complex, in the implementation of technical incompatibilities between products with communication practices45.

Thus, in the Nespresso case, the manufacturer was criticized for having:

made successive modifications of the machines causing their incompatibility with the capsules proposed by the competitors

Added various mentions on machines or user manuals that may mislead the consumer as to the compatibility of competing capsules with his machine. The user manuals indicated, for example, that any damage caused by the use of non-Nespresso branded capsules would not be covered by the warranty.

However, it should be noted that the French competition authorities do not systematically condemn practices restricting access to the secondary market. This may be particularly the case when they are intended to protect quality or safety, particularly in the health sector46, provided that the restrictions are not abusive, even if other manufacturers do not have the same requirements.

The owner of an intellectual property right is entitled to oppose any use by a third party of a sign identical to the sign covered by his trademark when such use infringes any of its essential functions47. He may also object to any use, by a third party, of a sign similar to the sign covered by his mark, when such use undermines its original guarantee function.

However, the case law tolerates a consumer's right to information when analyzing a possible infringement of the essential function of a trademark. It has been acknowledged that there can be no unlawful use of a mark where the use of the sign in question makes it possible to describe the composition, function, nature, characteristics or qualities of the product or service in question48.

In addition, Article L.713-6 (b) of the CPI, transposing Article 6.1 of Directive 2008/95/EC49, incorporates the necessary reference exception. This article authorizes the use of the mark of others as "reference necessary to

42 Decision No. 07-D-20 on a request for interim measures by Integral Process against practices implemented in the French oximetry markets43 For example, Decision No. 06-D-35 on practices implemented in the inverter maintenance sector, in which a manufacturer inserted a PIN to access software needed for maintenance operations on its devices.44 Decision no. 05-D-46 relating to practices implemented by Jaeger-Lecoultre; Decision No. 16-D-29 on practices in the after-sales sector of reprographic equipment45 Decision No. 14-D-09 on practices implemented by Nestlé, Nestec, Nestlé Nespresso, Nespresso France and Nestlé Enterprises in the espresso coffee machines sector46 Decision No. 07-D-35 on practices implemented by Sirona Dental Systems GmbH and its national distributors of dental materials and equipment47 CJEU, 18 June 2009, C-487/07, §5948 See for example: CA Paris, May 12, 2004: PIBD 2004, III, p. 512; CA Paris, Dec. 11 1996, PIBD 1997, III, p. 149; CA Paris, 22 May 2002, No. 2002/00949; Com., Jan. 29, 2013, No. 11-28,59649 Article 6.1 of the Directive 2008/95 / EC provided that "The right conferred by the mark does not allow its owner to prohibit a third party the use, in the course of business, [...] c) when it is necessary to indicate the destination of a product or service, in particular as an accessory or spare parts, provided that such use is made in accordance with honest practices in industrial or commercial matters ".

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indicate the destination of a product or a service, in particular as an accessory or spare part, provided that there is not confusion in their origin ". Consequently, the proprietor of a mark may not prohibit the use of that mark by a third party in order to indicate the destination of an accessory50 or to announce to the public that it carries out, in particular, the repair and maintenance of products bearing this mark51. However, this exception is framed.

Thus, the use of the mark in the business life must be necessary to indicate the destination of a product or a service and must not create confusion in the mind of the public52. This right applies regardless of whether the products are distributed in hard or online stores.

Beyond the legal provisions, the owner of a mark may also negotiate certain clauses restricting or regulating the use which may be made of the sign, and which may be justified according to the nature of the sign, particularly if he can justify a particular image (see below)53.

The owner of a right may also limit the use of his right within the more general framework of license or assignment agreements. French law thus recognizes the possibility of inserting certain clauses limiting the scope of the right transmitted to the licensee or assignee. The clauses of non-contestation of the validity of the right, prohibiting the licensee from challenging the validity of the transmitted trademark, are thus admitted in French law54. French law also recognizes the validity of the clauses of non-guarantee of the validity of the right when stipulated between professionals55.

The practice of "geoblocking", which consists of preventing access to or modifying the content of a content or product (for example the price) according to the user's IP address, has been questioned in the light of the creation of a single digital market.

This practice may indeed discriminate against certain consumers, whose access to the price and to certain products or services differs according to the country of residence. This problem is not regulated in itself by French law. It is important to note, however, that in the field of copyright or neighboring copyright, the CPI offers the right holder the right to ask for « any measures to prevent or stop such infringement (...), against any person likely to contribute to remedy »56. Thus, the CPI can block access to a website, including through a summary procedure against the host of the site in dispute57, when it infringes the copyright or one of his neighboring rights58.

50 Court of Appeal of Paris, June 13, 2017, RG No. 15/10544: on the compatibility of a dental accessory with the product covered by the mark.51 TGI Paris, 22 January 2008, RG 05/18326: considering that an automobile center could use the BMW and MINI registered brands in so far as it is approved as a repairer for the maintenance and repair of BMW and MINI vehicles and that these references are necessary for the information of the customers, the use of the term automobile following the quality of authorized repairer being insufficient to indicate to the consumer the exact nature of its activity.52 See in particular Cass. Com. February 10, 2015, Appeal Nos. 13-28263 and 12-2602353 CJEU 6-12-2017 aff. 230/16, Coty Germany GmbH v Parfümerie Akzente GmbH54 Cass, Com, March 11, 1986: Bull. Civ. 1986, IV, No. 4355 CA Lyon, Oct. 29, 1986: JCP E 1988, I, 15160, note J.-J. Burst and J.-M. Mousseron56 Article L. 336-3 of the CPI57 "Quick and simplified procedure to obtain from a single judge generally exercising a presidential function all measures that do not face any serious challenge or that justifies the existence of a dispute", Legal Vocabulary, Gérard Cornu, PUF58 Application example: TGI Paris, 4 December 2014, n ° 14/03236, Pirate Bay

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The practice of geographical blocking is also apprehended by national and European authorities from the standpoint of competition law. It is in a judgment of October 4, 201159, relating to the retransmission of televised programs, that the CJEU has come to set the first limits of this practice. n that case, the Court considered that a system of exclusive licenses for the retransmission of football matches, which grants broadcasters territorial exclusivity by Member State and which prohibits viewers from watching such broadcasts with a decoder card in other Member States, is contrary to EU competition law. In France, and in a completely different domain, the Disneyland Paris theme park was targeted by a European Commission survey in 2015, because it was accused of imposing lower prices on French Internet users and overcharging visitors from other states60.

These cases led to the adoption of the Regulation of 28 February 201861 to put an end to the practice of unjustified geoblocking. The Regulation thus lays down several situations in which it can not be justified to treat

customers from different Member States differently: the sale of goods without physical delivery, the sale of services provided by electronic means and the sale of services provided in a precise physical place. In practice, as of the entry into force of the regulation planned for the end of 2018, the holder of an intellectual property right attaching to a product sold on an online sales platform will no longer be able to charge differentiated prices according to the nationality of the buyer.

Nevertheless, the scope of this regulation is limited in that it does not apply to digital content protected by copyright62, such as streaming, music or film services. If discussions are currently underway on this point, there is nothing yet to prevent an author from blocking access to copyright-protected content to certain Internet users, depending on their nationality or country of establishment.

To date, the French Competition Authority has not decided on the question of the regularity of geo-blocking measures.

Owners of intellectual property rights have various means to limit and control the use of their rights on online trading platforms or social networks. Transposing the European directives on electronic commerce, France now has a specific mechanism of responsibility allowing the holders of an intellectual property right to oppose the illegal use of their rights on the platforms of online commerce or social networking sites . The Law for Confidence in the Digital Economy (LCEN, in french)63 makes a distinction between the publisher of the website, responsible for illegal online content because of his active role, and the host, whose liability can not be engaged in the absence of notification made under the terms of article 6-I-5 of the LCEN64. Thus, the owner of an intellectual property right who considers that content posted on line constitutes an infringement of his right

59 CJEU, 4 October 2011, "Football Association Premier League and others / QC Leusure and others, Cases C-403/08 and C-429/0860 "Disneyland Paris: the EU investigates price differences for foreign tourists", Le Monde.fr, July 29, 2015: According to the "Financial Times", a French visitor paid 1,346 euros for a premium package, while an Englishman was charged 1 870 euros and a German 2 447 euros61 Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on countering unjustified geographical blocking and other forms of discrimination based on nationality, place of residence or place of establishment of customers in internal market, and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22 / EC, published in the OJEU on 2 March 2018.62 Article 4.1 (b) of the Regulation excludes from its application "services whose main characteristic is to provide access to or to enable the use of copyrighted works or other protected objects, including the sale in immaterial form of works protected by copyright or protected objects ".63 Law No. 2004-575 of 21 June 2004 on Confidence in the Digital Economy

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may directly engage the responsibility of the publisher of the website65 but will, however, when the company is only the simple host of the website 66, comply with the obligation of prior notification and justify how the content is illegal and must be removed.

In practice, this means of action remains limited, the publishers of commercial platforms and even more of social networks being particularly demanding with regard to the holders to withdraw or block the access to a content considered by him as litigious, and this even more so when the content does not concern a servile copy.

In this respect, we can mention the recent initiative of the European Commission67. In particular, it encourages hosting service providers to publish clear and detailed explanations of their policy regarding the removal of illegal content and to disseminate at least once a year activity reports relating to the removal of content considered to be illegal.

In France, as in many Member States, a supplier can also choose to supervise the distribution of its products on the Internet through selective distribution contracts. The main principles have been drawn mainly by the Court of Justice. The owner of the mark may impose several constraints on his distributor justified by the nature of the products and the brand image, constraints similar to those he imposes in "hard" outlets.

The French authorities do not accept more than the European judges a total restriction to sell on the Internet imposed by a supplier68. The question of the application of the solution emanating from the recent Coty judgment delivered by the CJEU will also arise.

The issue of the prohibition of "pure players" and the use of marketplaces solutions was examined by the Court of Cassation, in a case nevertheless particular since it was judged in summary and the clause considered had been validated by the Conseil de la concurrence. It should also be pointed out that the decision was made before the Coty Germany decision of the CJEU but after the publication of the conclusions of the Advocate General in the same case.

The Paris Court of Appeal69 had held that the principle prohibition of the use of an online platform was "manifestly unlawful", which is a necessary criteria to characterize the competence of the judge hearing the application for interim measures to take "all necessary measures to put an end to [ said] disorder ". The appellate judges held that the previous decisions of the European competition authorities concerning the validity of an Internet clause in a selective distribution network constituted "a serious and concordant body of evidence" of " characterized restriction of competition ".

For the commercial chamber of the Court of Cassation "by determining this way, without explaining in what way the decisions to which it referred were likely to rule out the existence of a manifestly unlawful disorder resulting from the infringement of the selective distribution network of Caudalie, whose lawfulness had been admitted by the Competition Council's decision No. 07-D-07 of 8 March 2007, which had not been revised, the Court of Appeal deprived its decision of legal basis"70.

64 The notification must include its date, the identity of the notifier, the description of the disputed content and the reasons justifying the withdrawal of the content.65 On the quality of publisher of an online furniture sales company: TGI de Paris, interim order of 21 November 201766 Social media platforms, such as Facebook or Dailymotion, have been recognized as hosting providers: TGI Paris, interim order of 13 April 2010 (Facebook); CA Paris, 2 December 2014, No. 13/08052 (Dailymotion).67 Commission Recommendation (EU) 2018/334 of 1 March 2018 on measures to effectively combat illicit content online.68 Commission Recommendation 2018/334 of 1 March 2018 on measures to fight effectively against illegal content online69 Court of Appeal of Paris of February 2nd, 2016 n ° 15/0154270 Cass, com, September 13, 2017

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This decision marks a further step towards the recognition of the validity of the clauses forbidding resale through market places. In any event, although the question has not yet been directly decided by a French court, it is conceivable that the latter should apply the solution reached by the Court of Justice in the Coty case71 and thus accept the clauses prohibiting the use of "visible" market places. It is also too early to have assurances in this area but it is likely that the national courts will comply with the interpretation of the judgment proposed by the European Commission and apply this solution more widely than just the luxury sector.

Reverse engineering is the study of a product to derive information about its internal operation or the method of production. This practice has raised legal debates about software. Decompilation may constitute an act of infringement without the express authorization of the right holder or the author.

In the case of software, the legislator has introduced in the IPC a specific exception to the exclusive rights of the author72 of a software in Article L.122-6-1. This article thus transposes the terms of the 1991 directive73 on the

protection of computer programs and authorizes the decompilation of software for interoperability purposes. Decompilation is thus allowed under strict conditions74, especially when it is necessary to ensure the normal operation of the software or to ensure the interoperability of the software with other software or hardware. These rules are also supplemented by those relating to the legal regime of technical protection measures against copy, expressly providing that such protective measures must not have the effect of preventing interoperability75.

This right is also guaranteed by the French courts, which admit the possibility to decompile software to ensure its proper functioning with an extension or other software or to perform data migration operations 76. The user exceeding the scope of the right conferred under the aforementioned articles may be condemned on the basis of counterfeiting or unfair competition77.

In practice, this ability of decompilation will often be considered by the author of the software through the contractual tool. It is also possible for the author or licensor to file with a third party, including a notary or the High Authority for the dissemination of works and the protection of rights on the Internet, the necessary information to ensure interoperability. In France, there is also the Regulatory Authority for Technical Measures78, which is responsible for ensuring interoperability, and which can be seized by the operator wishing to avail himself of this right.

71 CJEU, aff. C-230/16, Coty Germany GmbH / Parfümerie Akzente GmbH72 In French law, software is considered to be works of the mind and can thus be protected by copyright provided that it respects the conditions specific to this right (Article L.112-2 of the CPI: works of the mind within the meaning of this code: (...) 13 ° Software, including preparatory design equipment ".73 Council Directive 91/250 / EEC of 14 May 1991 on the legal protection of computer programs74 Article L.122-6-1-IV of the CPI75 Article L.331-5 of the CPI: "Technical measures shall not have the effect of preventing the effective implementation of interoperability, in compliance with copyright. Providers of technical measures give access to information essential for interoperability under the conditions defined in 1 ° of article L. 331-31 and article L. 331-32 ".76 Cass. Civ. 1st, October 20, 2011, No. 10-1406977 Caen Court of Appeal, Correctional Appeals Chamber, March 18, 2015, Christian D., Sean O., The Public Prosecutor / Skype Ltd and Skype Software Sarl78 Established by the law of 1 August 2006 (DADVSI law), its mission is to facilitate access to musical and cinematographic works on the Internet in respect of creators' rights.

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The theory of the exhaustion of rights, a Praetorian creation instituted by the Court of Justice of the European Union, was conceived as a tool of conciliation between two imperatives : the free circulation of goods on the European territory (founding principle of the market common law), and the protection of intellectual property rights.Under this rule, genuine products put on the market in the European Economic Area by the right holder or with his consent, then circulate freely, so that the holder can no longer oppose his exclusive right to control the circulation and marketing or distribution terms.This rule was enshrined in the Community texts and then integrated into the French Intellectual Property Code for each intellectual property right79. Thus, with regard to the mark which gives rise to the most extensive case-law, Article L713-4 of the CPI, transposing Article 7 of the First Harmonization Directive to approximate the laws of the Member States relating to trade marks, No. 89 / 104 / EC of 21 December 1988, provides that 'the right conferred by the mark does not permit the holder to prohibit the use of the mark for products which have been put on the market in the European Economic Community or in the European Economic Area under this mark by the holder or with his consent. "In copyright, only the right of distribution is subject to the rule of exhaustion of rights. The rights of reproduction and representation are inexhaustible.

Since the rule of exhaustion applied by the French courts is of Community origin, it applies only at the regional level, ie within the European Economic Area.

✓ The French provisions identify the act carried out with the consent of the holder that triggers the exhaustion of rights within the European Economic Area, in the field of literary and artistic property (copyright, software, neighboring rights, database of data), as the "first sale", which implies a transfer of ownership. Thus, only the first sale of a physical copy of the work gives rise to the exhaustion of the rights of the holder on that copy if it was made in the European Economic Area with his consent.In the field of industrial property, the texts concern the first marketing (design or model) or the "putting on the market" of products (patents, trademarks).The first placing on the market has been defined by the CJEU80 as the actual sale of the protected product. Thus, preparatory acts such as the affixing of a mark on the products, the importation of the protected product with a view to selling it or the offer for sale, as long as they are not followed by a transfer of ownership, do not give rise to exhaustion.

✓ The fact of renting the property by the rights holder does not realize the marketing of the exhaustion of the rights, because of the lack of transfer of ownership. Of course, once the rights holder has authorized the marketing of his property, the depletion is achieved and he can not prevent the rental by a third party of his property, also through a lease.In fact, in the field of industrial property, the articles refer to acts benefiting from the exhaustion of rights, the "acts" or "uses" of the property, without specifying as to their nature.However, in terms of copyright and software, the act of rental always requires the authorization of the holder, insofar as only the right of distribution can be the object of the exhaustion.

79 Thus, the French courts apply in matters of:- copyright, article L 122-3-1 of the CPI transposing by the effect of the law of 1 August 2006 article 4 of the EC

Directive n ° 2001/29 of 22 May 2001,- software, Article L122-6 3 ° of the CPI transposing Article 4 of Directive 2009/24,- neighboring rights, article L 211-6 of the CPI,- databases, article L 342-4 of the CPI,- designs and models, article L513-8 of the CPI transposing article 15 of the Harmonization Directive n ° 98/71 / CE

of October 13, 1978, by the effect of the order n ° 2001-670 of the July 25, 2001;- patents, Article L 613-6 of the CPI,- and finally marks, Article L713-4 of the CPI.

80 ECJ, November 30, 2004, C-16/03, Peak Holding

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❑ As indicated in the question above, the exhaustion rule applies at Community level

✓ Trademark law has the exception of legitimate grounds. The Court of Justice has indeed recognized that an infringement of the function of guarantee of origin of the mark could justify an exception to the application of the exhaustion of rights.Thus, the proprietor of a mark has the right to oppose the marketing of products already put into circulation by him or with his consent and which, following the intervention of an unauthorized third party, would have been altered or modified. This is to prevent liability for the quality of these products from being attributed to him and unfairly damaging his reputation and that of his brand81.This derogation has been incorporated into Articles 7 of Directives 89/104 EEC and 2008/95 and Article 15 of Directive 2015/2436. In French law, it is the subject of the second paragraph of Article L.713-4 of the Intellectual Property Code which provides that, if the right of the holder is exhausted (paragraph 1): "faculty remains open to the proprietor to oppose any new act of marketing if he justifies legitimate reasons, including the subsequent modification or alteration of the condition of the products. "We can report some illustrations in French jurisprudence. Thus, as regards the modification of the marked product, it was held that the proprietor of a jeans brand is entitled to oppose the marketing of his products put into circulation with his consent, since the reseller had them washout without his authorization and that " the maintenance of the mark on the modified product tended to make the consumer believe that the owner of the mark was responsible for the entire production process"82.

The use of the adverb "in particular" by the provisions of the Intellectual Property Code establishing the derogation for just cause allows the scope of the exception to be extended beyond the assumptions of modification or alteration of the products.

Indeed, it has been accepted by the Court of Justice that a legitimate ground could be invoked in cases where the conditions of marketing of the authentic products put into circulation are likely to seriously harm the image, the reputation or the brand fame83.An illustration of such a legitimate motive can be found in a series of decisions rendered for the benefit of the French luxury company Chanel, of which one of the authorized distributors, a member of its selective distribution network, has been placed in liquidation. This liquidation gave rise, without Chanel's agreement, to a sale of cosmetic stocks at public auction to a company which, in turn, sold them to various companies operating discount stores. Chanel has therefore infringed these dealers who marketed its products under devaluing conditions. The Court of Cassation, in four successive decisions84, has thus validated the conviction of the various retailers for unlawful use of the mark, noting that the conditions of exposure to the sale of the products were incompatible with the reputation of Chanel and "negatively affected the value of the brand by tarnishing the look and the prestige image of luxury perfumes and cosmetics ", so that Chanel justified a legitimate reason allowing it to oppose a new marketing of its products.

✓ It has become standard practice that the rights holder who benefits from a selective distribution network invokes the application of the provisions of the Commercial Code to circumvent the rule of exhaustion of rights and obtain the sanction of the parallel reseller.

81 ECJ 23 May 1978 Aff. C-102/7782 Cass Com January 28, 1992, No. 90-14292, LEVI STRAUSS83 ECJ 11 November 1997 Aff. C349 / 95; ECJ 23 April 2009 Aff. C59 / 08- DIOR c / COPAD84 Cass Com March 23, 2010, No. 09-65844: CHANEL c / LAND; Cass Com March 23, 2010, n °: 09-65839: CHANEL c / CAUD; Cass Com 24 May 2011, No. 10-18474 CHANEL v. CAPI; Cass Com 4 October 2011, n ° 10-20914: CHANEL c / VILL

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Indeed, Article L.442-6 I 6 ° of the French Commercial Code penalizes the fact of "participating directly or indirectly in the violation of the prohibition of off-network resale made to the distributor bound by a selective or exclusive distribution agreement exempted under the applicable rules of competition law ", ie a lawful network under competition law. It allows to retain the responsibility of the parallel distributor complicit in the breach of a contractual obligation by one of the members of the network. Third-party complicity involves establishing the third party's knowledge of the existence of the clause prohibiting off-net selling or the fact that it could not reasonably ignore it85.Thus Chanel, after obtaining the conviction of the dealers for trademark infringement, was able to seek the responsibility of the intermediary reseller, who had acquired the products of its authorized distributor in liquidation (in knowledge of the clause of his contract which required him to offer the resale of his stock at the end of his contract to Chanel), on the basis of unfair competition and Article L 442-6 I 6 ° of the Commercial Code.The Court of Cassation86 was indeed able to retain that the company which "acquired the products Chanel in knowledge of the existence of the network of selective distribution and the constraints peculiar to this one" had participated directly in the violation of the prohibition of resale off-network committed by the authorized distributor. Recourse to the provisions of the Commercial Code thus makes it possible to seek the liability of the parallel distributor when an action for infringement against him appears to be futile because of the exhaustion of rights.

✓ In accordance with the general principles governing the administration of evidence in French law, the Court of Cassation consistently holds that the burden of proving the exhaustion of rights lies with the person who invokes

it87. It belongs to the person who requests the benefit "to demonstrate this exhaustion for each of the authentic copies of the product concerned by the dispute"88.It is therefore incumbent upon him to demonstrate both a marketing opportunity within the Union, and secondly that such marketing is the act of the owner of the rights or has been carried out with his agreement, for example by an authorized distributor. It is finally admitted that "the third party pursued has no other proof to report than that of the exhaustion of the rights which he invokes as a defense" so that if the lack of authenticity comes to be raised by the owner of the rights, it is up to him to return the proof before examining the documents produced by the defendant to justify the exhaustion89. However, adjustments to the evidentiary rule proving the exhaustion of rights against the defendant were admitted to take account of the fact that the revelation by the alleged infringer of the source of his supply may give the holder of the rights the means to contribute to the partitioning of national markets in disregard of the freedom of movement. The Court of Justice has therefore been able to rule90 that 'in the event that the third party succeeds in demonstrating that there is a real risk of partitioning the national markets if it bears the burden of such proof, in particular where the holder of the mark markets its products in the EEA by means of an exclusive distribution system, it is for the proprietor of the mark to establish that the goods were initially put on the market by himself or with his consent outside the EEA. If that evidence is adduced, it is then for the third party to establish the consent of the holder to the subsequent marketing of the products in the EEA. 'This case law thus dedicates a simple presumption of exhaustion of rights, and thus a reversal of the burden of proof, provided that the defendant can show beforehand a real risk of compartmentalisation of the markets. The

85 Cass Com April 25, 2001 No. 98-2155986 Cass Com 16 February 2016 No. 14-13017 CHANEL v. FUTURA FINANCE87 Cass Com February 26, 2008 Appeal No. 05-1908788 Cass Com April 7, 2009 Court of Appeal No. 08-13378; CA Paris 6th September 2016 - SWATCH RG n ° 15/0010889 Cass Com Nov 10, 2015 - No. 14-11479 Published in bull. 2016, No. 839; Cass Com Nov 8, 2016 # 15-1222990 ECJ 8 April 2003 Van Doren C-244/00

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very words of VAN DOREN91 decision suggest that this risk exists simply because the owner of the rights of an exclusive distribution network is in existence but that the existence of such a risk should not be limited to this hypothesis alone.

In a judgment of November 10, 2015, the Court of Cassation92 admitted that the risk of compartmentalization of markets could be characterized as soon as the knowledge of the owner of the rights of the defendant's source of supply to the action for infringement "would allow him to prevent the free movement of products in the European Economic Area by drying up this source". It follows from the use of the conditional that the reversal of the burden of proof is justified by the mere fact that knowledge of the defendant's source of supply would make it possible for the defaulter to make it cease to exist, without requiring the effectiveness of a drying up already intervened or likely to intervene.The courts are more likely to adopt a more restrictive conception of the notion of risk of compartmentalisation of the markets. Thus, to our knowledge, there is no recent decision recognizing this risk in terms of selective distribution network93. In addition, many decisions recognize that the establishment of an exclusive distribution network is a simple indication of the risk of compartmentalisation, to be reinforced by others94. It is also apparent from the most recent decisions95 that in the case of an exclusive distribution network "the existence of different prices according to the territories can not establish the existence of a risk of partitioning, the proof of an interest in parallel imports can not be analyzed as demonstrating that the proprietor of the marks concerned is intended to prevent such parallel imports ". The decisions thus seem to require the demonstration of the

partitioning of the markets, by the existence of clauses prohibiting the distributors of the products in question from obtaining supplies in the territory of another Member State96 and the intention of the holder to prevent any parallel importation. Thus, the judges will investigate if there are clauses prohibiting passive sales between network distributors and for the benefit of customers located outside the territory assigned to each of them, or even the reality of such sales remained not sanctioned by the holder97.

This interpretation of the judges of the merits, which is more restrictive than that adopted by the Court of Cassation, has the effect of giving the simple presumption of exhaustion of rights a more limited scope.

Article 122-6 (3) of the French CPI states that: "the first sale of a copy of software in the territory of a Member State of the European Community or of a State Party to the Agreement on the European Economic Area by the author or with his consent exhausts the right to place the copy on the market in all the Member States except for the right to authorize the subsequent rental of a copy. ». Therefore, software is subject to the rule of exhaustion of rights from the first sale of a copy, for resale. As recalled above (see Q.8) the exhausted right does not include the right to rent the copy acquired.The main difficulty with software was to determine whether the act of downloading software with a license to use can be qualified as a sale and thus trigger the exhaustion of rights. The CJEU retained the qualification of sale for the act of downloading, as the license of use was not limited in time and condemned the practice of non-

91 In particular, the following point 39: "(...) a real risk of compartmentalisation of national markets exists, for example, in situations in which, as in this case in the main proceedings, the proprietor of the mark markets his products in the EEE by means of an exclusive distribution system.92 Cass Com Nov. 10, 2015 - supra93 CA of Paris 17 dec. 2010 RG No. 08/23955, YVES SAINT LAURENT PERFUMS C / VIVINANZA TRADING: " the mere existence of a selective distribution network can not make it possible to assume the existence of a risk of compartmentalisation of the market (...) on the assumption that different prices were used by authorized distributors, this finding alone is insufficient to reveal by itself the existence of a risk of market partitioning »94 TGI Paris 14 February 2014, RG No. 11/15279; CA Paris -23 JANUARY 2018- No. 16/11154 - SA AUCHAN France c / CONVERSE; CA Paris 14 February 2017, RG No. 15/00217, SPORT CONCEPT C / CONVERSE INC AND ALL STAR95 CA Paris -23 JANUARY 2018- supra96 CA Paris March 12, 2014, RG: 12/16056 GUESS C / AUCHAN97 CA Paris 3 February 2017, RG No. 16/02505

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transferability clauses in the licenses98. Thus, downloading software with a license for use, which is not limited in time, exhausts the right to the software and authorizes its resale.Lastly, software and smart products are not subject to a registration requirement in French law. Thus, the system of exhaustion of rights is subject to the free appreciation of each State. In fact, under Article 6 of the TRIPS Agreement "Nothing in this Agreement shall be used to deal with the issue of the exhaustion of intellectual property rights ». In France, the Community texts apply and therefore, regional exhaustion of rights apply.An exhaustion of rights at the international level can not be envisaged because of the principle of territoriality of intellectual property rights. Thus, it can only take place in a territorial area where the rules are unified, like the European Union.

The exhaustion rule is conceived as an exception to trademark law in order to allow the free movement of goods within the EU. Trademark law is nonetheless subject to the exception of legitimate motive which makes it possible to rule out exhaustion (see above).

✓ The practical problems encountered are mainly at the level of the administration of the proof of the exhaustion, often difficult to report for each of the authentic products concerned by the litigation. Thus, the defendant must be able to reconstitute, for each product concerned and using invoices as a support, the commercial chain99. However, the defendant may face practical difficulties in reconstituting all the links in the distribution chain: either because he can not access all the invoices tracing the commercial path, or because the identification of invoices may be impossible, copies may give rise to references or different product names depending on the successive intermediaries. These practical difficulties may be such as to deprive the defendant of the benefit of the theory even though the disputed products were put into circulation in the Union with the consent of the proprietor.

✓ The importation of parallel products into France is authorized and escapes the sanction of counterfeiting only if the products in question have been put into circulation in another Member State of the European Union. There are, however, necessary import authorizations to be obtained specifically for pharmaceuticals. They are then issued by the Director General of the National Agency for the Safety of Medicines and Health Products (Article R5121-108 et seq. Of the Public Health Code).

We refer to question 13 for the competition law aspects of parallel imports.

Intellectual property rights, especially trademark rights, primarily protect the individual interest of an economic operator, whereas competition law aims to guarantee public economic order by protecting the competitive operation of the market.

The acquisition and holding of exclusive rights is perceived by the competition authorities as a strategic weapon that must be controlled to prevent these rights from constituting an agreement or abuse of a dominant position. Thus, national case law, following the European case law, has developed a set of criteria to verify the conformity of the exercise of intellectual property rights with the competition rules.

98 CJEU, July 3, 2012, C-128/11, Oracle99 TGI Paris June 10, 2016, RG No. 13/16947

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The French competition authority adopts the European notions of "specific object", "essential prerogatives" and "substance of the law" to distinguish the lawful or unlawful exercise of an intellectual property right.

As regards the abuse of domination, the French Competition Authority also enshrines in its internal law the theory of essential infrastructures, which sanctions a practice involving an exorbitant infringement of intellectual property rights.

In merger law, the acquisition and ownership of intellectual property rights is at the heart of the competitive analysis that may lead to the prohibition of an operation. To do this, the notion of "essential brand" has been created, which refers to a particularly important market power derived from the very strong reputation of the brand.

Finally, with regard to the off-grid resale of a product protected by trademark law, the parallel distributor may engage its tort liability on the following grounds: the third complicity and the action of Article L.442-6, I , 6 ° of the Commercial Code, unfair competition especially if the reseller markets the products in conditions prejudicial to the brand or the distribution network, and finally commercial parasitism.

There are currently no specific limitations on the provision of software as a service (SaaS) under competition and consumer law. The only control carried out is based on the general obligation of information imposed on the professional, such as a software supplier, by Article L. 111-1 of the consumer code for consumers, and by Article L. 1112 -1 of the civil code, resulting from the reform of February 10, 2016. The latter article now imposes a pre-contractual information obligation on information "determinant" for the consent of the other party, which would be, for the supplier, an obligation to inform the client, whether consumer or professional, of the characteristic elements of the software concerned. For SaaS software, for example, the supplier should be required to communicate information about the disadvantages of this type of system, including the dependence on the chosen service provider, or the difficulty of changing service provider and transferring him the data. If the buyer subsequently considers that the information has not been communicated to him in a satisfactory manner, he may invoke a defect of consent or an error as to the essential qualities of the service, in order to request the cancellation of the contract.

Tied sales in the area of service contracts consist of making the provision of a service subject to that of another service or the purchase of a product. Article L 121-11 of the Consumer Code specifies that they are admitted unless they constitute an unfair commercial practice within the meaning of Article L. 121-1 of the same Code. They are therefore prohibited only to the extent that they are contrary to the requirements of professional diligence and where they would substantially alter the economic behavior of the normally informed consumer. The qualification of unfair commercial practice is assessed on a case by case basis, particularly in the case of tied selling. The CJEU thus considered, in a judgment of September 2016 in Case C-310/15, that the sale of a computer equipped with preinstalled software did not, in itself, constitute an unfair commercial practice, since the offer was not contrary to the requirements of professional diligence and did not affect the economic behavior of consumers. On 29 March 2017, the Court of Cassation took the view that Darty's subordinate sales practices of operating system software constituted a deceptive marketing practice, in that they did not indicate the conditions for the sale of the operating system software and the main features of the preinstalled software, which was nevertheless a substantial information for the buyer. The existing limitation on tied selling is therefore the unfair or deceptive trade practice qualification, which is punishable.

Articles L. 217-4 to L. 217-14 of the French Consumer Code provide for a legal guarantee of conformity: the selling professional must deliver a product conforming to the contract.

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The action in guarantee of conformity is prescribed by 2 years as from the delivery of the good.

For goods purchased after March 18, 2016, any defects of conformity appearing during the 2 years following the purchase, are presumed to exist. This period is maintained at 6 months for second-hand goods. This presumption operates a reversal of the burden of proof to the benefit of the consumer: the defect is considered as dating from before the purchase of the product and it is indeed the professional to prove that it did not exist. The procedure is free and simply asks for proof of purchase such as a delivery note, an invoice, or a receipt.There are three exceptions that prevent this guarantee from being used: in the event that the consumer was aware of the defect at the time of contracting, in the event that he could not ignore the defect at the time of contracting, or even in the event that the defect results from materials he himself provided.

In addition, articles 1641 to 1649 of the Civil Code provide a legal guarantee against hidden defects. The time to act is two years from the discovery of the vice, and it is the judges of the bottom who appreciate supremely if the thing sold is unsuitable for its destination. However, the burden of proof weighs here on the buyer (whether consumer or professional), who must prove the existence of the hidden defect, for example by producing different certificates or repair specifications, or by making an amicable assessment.

The crime of planned obsolescence is defined by a new Article L. 441-2 of the Consumer Code, created by the ordinance of March 14, 2016. It provides that "the practice of planned obsolescence, which is defined by the use of techniques by which the person responsible for placing a product on the market is intended to deliberately reduce its service life, is prohibited". The drafting of the article poses a probative problem: indeed, it is very difficult for the consumer to prove an intention to reduce the life of the product, except by resorting to long and extremely expensive technical means. One solution that can be found to overcome this difficulty is to resort to group actions or consumer associations. Thus, for the first time since the introduction of the offense in French law in 2015, a preliminary investigation was opened by the Paris prosecutor's office on January 5, 2018 on Apple for planned obsolescence and deception, following a complaint by the association Halte to Programmed Obsolescence (HOP)100.

In the context of a sales contract between a professional seller and a consumer, Article L. 111-1 of the Consumer Code, which provides for an obligation of pre-contractual and contractual information on "the essential characteristics of the property or the service, taking into account the communication medium used and the good or service concerned ', could be a possible basis for overcoming the probative difficulties mentioned above. However, this article appears less dissuasive because the penalties are lower than for obsolescence. Indeed, while the crime of obsolescence scheduled may be punishable by two years' imprisonment and a fine of 300,000 euros that can be increased to 5% of the average annual turnover, the defect of information is only punished by an administrative fine that can go up to 3000 euros for a natural person and 15 000 euros for a legal person.

When there is a lack of conformity, the professional proposes to the consumer the replacement of the good or its repair. The choice depends on the consumer, except when it generates disproportionate costs for the professional. No costs may be charged to the consumer for the replacement, repair, resolution or refraction of the contract.In case of a hidden defect, the legal warranty covers all the expenses incurred. The buyer has the choice between returning the thing and getting the price back, or keeping the thing and getting a part of the price back.

100 CASSINI S., "Apple targeted by a preliminary investigation for" deception and planned obsolescence ", www.lemonde.fr published on 08/01/2018, http://www.lemonde.fr/entreprises/article/2018/01/ 08 / apple-is-in-a-survey-preliminary-of-parquet-of-paris-to-deception-and-obsolescence-programmee_5239070_1656994.html

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The "Hamon" law of 17 March 2014 introduced an obligation to provide information on the availability of spare parts and the provision of these same parts. Article L. 111-4 of the Consumer Code thus provides that the manufacturer or the importer of movable property must inform the professional seller of the period during which the spare parts required for the use of the goods are available on the market. This information must, moreover, be delivered to the consumer by the seller legibly before the conclusion of the contract and confirmed in writing when the goods are purchased, and this for products put on the market since 1 March 2015. Moreover, once this information is mentioned, the manufacturer or the importer must provide, within two months, to professional sellers or repairers, authorized or not, who request it, spare parts essential for the use of goods sold. These measures aim to make the "reparability" of products a new purchasing criterion for consumers, and to consolidate the repair and re-use sectors, all of which will help develop more sustainable consumption patterns.

Breaches of these obligations are punishable by an administrative fine, the amount of which can not exceed 3,000 euros for a natural person and 15,000 euros for a legal person (Article L. 131-2 of the Consumer Code). However, a survey of the DGCCRF conducted in 2015 and published in November 2016, reports numerous shortcomings in the pre-contractual information on the availability of spare parts: "it appears that this is often missing or delivered unsatisfactorily to the consumer. As an example, it was noted that the starting point of the spare parts availability period was not indicated, so that the consumer could not appreciate the actual length of time during which he could have the repair of the purchased good ". Of the 397 establishments checked, anomalies were found in 248, or more than 60%.

Consumer groups have criticized Decree D 111-4. Indeed, this decree does not provide for an obligation of negative information, which leads to a paradoxical situation in which "a manufacturer who does not offer spare parts has no obligation to report it, whereas a manufacturer who makes the effort to display the availability of spare parts, may be sanctioned if it fails to provide them under the conditions provided by law ». In addition, the decree is criticized because it lacks details regarding the manner of presentation of information to the consumer, which may allow sellers to make the information inconspicuous and exploitable by consumers. A survey conducted by the association in 2016 concluded that "80% of distributors displaying information on the availability of spare parts drowned it in the middle of the characteristics of the product." After a graceful appeal against the decree remained unanswered, the UFC-Que Choisir and HOP associations appealed to the Conseil d'Etat for an abuse of power in order to obtain an amendment to the decree in March 2017101.

Since 2014 and in particular the Hamon law, several measures have been put in place to prohibit, or at least reduce, the limitations of guarantees for consumers in the event of repair by a third party.

Thus, Article L. 111-4 of the Consumer Code mentioned above expressly provides that "provided that he has indicated the period or date mentioned in the first paragraph, the manufacturer or importer must provide, within two months, to the professional sellers or to the repairers, approved or not, who ask for it, the necessary spare parts for the use of the sold goods ". In addition, several measures exist in the specific field of car repair. For example, an order of 26 May 2014 amending the decree of 28 June 2000 on consumer information and motor vehicle price advertising provides in an article 5-1 drafted that « when the seller offers a commercial guarantee within the meaning of Article L. 211-15 of the Consumer Code, he informs the consumer that his profit is not subordinated to the performance of the repair and maintenance services not covered by this warranty, by a network repairer approved by the manufacturer. This information is clearly and legibly contained in the vehicle's maintenance log, regardless of its support". This order was adopted to put an end to a common practice consisting in making the motorist believe that he would lose the benefit of the guarantee if he had to maintain or repair his vehicle outside the network.

101 https://www.quechoisir.org/action-ufc-que-choisir-disponibilite-des-pieces-detachees-le-decret-attaque-au-conseil-d-etat-n25880/

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Following the same idea, Article R224-22 of the Consumer Code, created by decree of 27 December 2016, provides that "the professional who sells maintenance or repair services for passenger cars and vans defined in Article R. 311-1 of the Highway Code allows the consumer to opt for the use of spare parts from the circular economy in place of new parts under the conditions provided for in Articles R. 224-23 to R 224-25 ".

These measures are intended to allow an unauthorized repairer to intervene in the repair chain, without the consumer being subject to limitations of warranty.

There is no provision of constitutional value that directly protects the rights of consumers. The fundamental rights are grouped in the constitutionality block, comprising the following elements:

(i) Constitution of October 4, 1958,(ii) the written standards: Declaration of Rights of August 26, 1789, Preamble of the Constitution of

October 27, 1946, the Environmental Charter of 2004,(iii) unwritten standards: the fundamental principles recognized by the laws of the republic, principles

of constitutional value and objectives of constitutional value.

The only reference to the notion of consumption, in its broadest sense, is found in the 2004 Environmental Charter, which states in its preamble that "biological diversity, the development of the individual and the progress of societies are affected by certain consumption or production patterns and the excessive exploitation of natural resources. "

The absence of a direct reference to the protection of consumers' rights can be explained by the age of the texts that make up the constitutionality bloc (which for the most part preceded consumer law introduced in France from the 1970s), but also because of the existence of sufficient protective rules both internally and at European level.

On the other hand, despite the lack of constitutional protection, consumer rights can be protected in France by the notion of public interest.

In its decision n ° 91-303 DC of January 15, 1992, the Constitutional Council considered that "the evolution that has known the right of property was also characterized by limitations to its exercise demanded in the name of public interest ; whereas, in the field of the marketing of goods or services, limitations are included in this

respect in order to ensure the fairness of commercial transactions and to promote the defense of consumers' interests ».

Thus, the protection of consumers, as a general interest, allows the restriction of a fundamental freedom (in this case the right of ownership) without, however, undermining the substance of the rights.

According to Article L. 711-3 of the French Intellectual Property Code, "a sign may not be adopted as a mark or mark element (...)

(c) Such as to mislead the public, in particular as to the nature, quality or geographical origin of the product or service ».

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If these provisions are often invoked by previous owners or local authorities, consumer associations also have a role to play in the trademark registration procedure since they can alert the director of the INPI of the risk of deception. According to Article L. 712-3 of the CPI, "during the period of two months following the publication of the application for registration, any interested person may make comments to the Director of the National Institute of Industrial Property". In their mission of preserving the collective interest of consumers, which includes protection against possible deception, the approved consumer associations may be described as "interested persons" within the meaning of Article L. 712-3.

In the same way, any interested person can ask in justice the forfeiture of the rights of the owner of the mark 102 . The pronouncement of this sanction takes into account the interests of the consumers since it intervenes when the mark has become because of the owner:

"(A) The usual commercial designation of the product or service;b) Specific to misleading, especially as to the nature, quality or geographical origin of the product or service103

This provision is to be compared to the prohibition of unfair commercial practices referred to in Articles L. 120-1 et seq. Of the Consumer Code. In particular, a commercial practice is misleading if it is committed in any of the following circumstances :

"1° When it creates confusion with another good or service, a mark, trade name or other distinctive sign of a competitor;

2 ° When it is based on allegations, indications or presentations that are false or likely to mislead ... ".

The two foundations - code of intellectual property and code of consumption - can be usefully invoked to qualify the use of a mark of deception towards the consumer.104

Consumers’ interests may limit the rights and freedoms of the trademark owner.

On the one hand, French law, largely guided by European law, restricts the freedom of communication on the brand if the public health of the consumer is at stake. The ban on tobacco advertising is the most striking example105.

The debate around "neutral packages" has highlighted a conflict between trademark law and public health.

As authorized by Directive 2014/40 / EU of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the manufacture, presentation and sale of tobacco products and related products106, France has chosen to be stricter than the European requirements and to impose the neutrality of the package. Article L. 3511-6-1 of the Public Health Code provides that :

"Packaging units, outer packagings and overpacks of cigarettes and rolling tobacco, cigarette paper and rolling paper are neutral and standardized. A decree in Council of State sets their conditions of neutrality and standardization, in particular of shape, size, texture and color, and the methods of registration of trademarks and trade names on these media ».

102 Article L. 714-5 of the CPI103 Article L. 714-6 of the CPI104 Cass. Com., Oct. 4, 2016, No. 14-22245 (Laguiole): Bull. Civ. IV, no. 832.105 Article L. 3511-3 of the Public Health Code106 See Recital 53

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The provision has been challenged before the Constitutional Council on the ground that it contravenes the property rights of the owner of the mark. The latter, however, decided that

"The contested provisions require the neutrality and standardization of packaging units, outer packaging and overpacks of cigarettes and rolling tobacco, as well as cigarette paper and rolling paper ; that they do not prohibit that each of these supports involves the inscription of the mark, so that the product can be identified with certainty by its buyer  ; that the proprietor of the regularly registered trademark thus retains the right to use it with consumers, even if this possibility is strictly regulated ; that he also remains protected against the use and misappropriation of the mark by third parties; that, consequently, the disputed provisions do not constitute a deprivation of property within the meaning of Article 17 of the 1789 Declaration »107

The Council also notes the proportionality of the measure to the public health objective pursued:

"By imposing neutrality and standardization on packaging units, outer packaging and overpacks of cigarettes and rolling tobacco, as well as cigarette paper and cigarette rolling paper, the legislature has intended to deprive these products of a form of advertising likely to favor consumption ; that he has thus pursued the objective of protecting health; that the impugned provisions do not prohibit the production, distribution or sale of tobacco or tobacco products; that it results in no disproportionate interference with the right of property and freedom of enterprise ».

French law regulates the advertising of other sectors: alcohol108, medicines109 or cosmetic products110, thereby limiting the freedom of expression of trademark owners in the public health interest of consumers. A balance is however found in application of the principle of proportionality: infringement of trademark law must be proportionate to the objective pursued.

On the other hand, French law limits the right of opposition to the use of the mark by its owner, in the interest of the consumer. This is mainly the case with comparative advertising, which fulfills a role of consumer information. More specifically, on the aftermarket, the communication based on the compatibility of spare parts is a comparative advertisement111. This practice occurs when a company uses a manufacturer's spare part references, such as serial numbers, to demonstrate the compatibility of its own spare parts with the good, or for

example in the field of printers and ink cartridges112. The fact that the advertiser does not directly quote the mark of spare parts does not prevent that qualification, from the moment the consumer can identify the company whose references are included in the advertisement.

In its Communiqué of May 16, 2011 on the method of determining financial penalties, the Autorité de la concurrence clarified that the mission of competitive regulation "helps to ensure that the freedom of economic actors to innovate, produce and distributing quality goods and services at the best price does not give rise to agreements or abuses affecting the competitive functioning of the economy as well as other businesses, consumers and, ultimately, growth and to the well-being of the community as a whole. "

107 Constitutional Council No. 2015-727 DC, January 21, 2016108 Article L. 3323-2 and following of the Public Health Code109 Article L. 5122-1 and following of the Code of Public Health110 Article L. 5131-1 and following of the Public Health Code111 ECJ, 25 Oct. 2001, aff. C-112/99, Toshiba Europe GmbH: Rec. ECJ 2001, I, p. 7945; RTD com. 2002, p. 402, obs. Mr. Luby.112 CA Versailles, 12th c., March 18, 2010, Epson v. Box Office, RG No. 09/00672. - CA Colmar, May 28, 2009, Epson v. Apha Stock, RG No. 1 B 07/01961: JurisData n ° 2009-010858

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The objective of competition law is to ensure respect for the public economic order, which aims not only to protect the general economy but also the well-being of consumers.

In this context, the concepts of "consumer interest", "consumer protection" or "consumer welfare" have become embedded in competition law over time. Today, they participate in the implementation of competition rules and their assessment.

Indeed, the interests of consumers are found at all levels of the exercise of competition law: (i) cessation of an anti-competitive practice, (ii) assessment of gravity in the calculation of the sanction, (iii) justification of an exemption from the competition rules, but also in (iv) compensation for harm related to anti-competitive practice.

(i) Article L.464-1 of the French Commercial Code provides that the Autorité de la concurrence may, after having been seized, take provisional measures if "the practice complained of is seriously and immediately damaging to the general economy, to the sector concerned, to the interests of the consumers or to the complainant undertaking. "

(ii) The Authority assesses the seriousness of the facts, taking into account in particular the "nature of the persons likely to be affected (SMEs, vulnerable consumers, etc.)". Moreover, the significance of the damage to the economy in the calculation of the pecuniary sanctions « integrates not only the transfer and the loss of well-being that the infringement is likely to cause to the detriment of the intermediate or final consumers [...] » 113

In addition, French competition law, in its article L.420-5 of the French Commercial Code (rarely used), contains a provision sanctioning "price offers or practices of selling prices to consumers that are unreasonably low compared to the costs of production, processing and marketing, provided that such offers or practices have as their object or may have the effect of eliminating from a market or preventing access to a market by a company or one of its products’.

(iii) The interests of consumers are also taken into account in individual exemptions from an anti-competitive practice provided for in Article L.420-4 of the French Commercial Code. I, 2 ° reserves the conditions for the application of the exemption to the development of economic progress and in case of profit-sharing with users, both including consumers. On the other hand, the third paragraph of the same article applicable to the overseas territories expressly provides that "agreements or practices whose authors can justify that they are based on objective motives drawn

from economic efficiency and which reserve for consumers a fair share of the resulting profit are exempted"

(iv) Lastly, consumer interest in competition law has been reinforced in recent years by the introduction of group actions in French law as a result of anti-competitive practices. Indeed, Article L.623-1 of the Consumer Code provides that "a representative consumer protection association at national level and approved pursuant to Article L. 811-1 may act before a civil court in order to obtain compensation for the individual damage suffered by consumers in a similar or identical situation whose common cause is the failure of one or more professionals to fulfill their legal or contractual obligations […] where such damage results from anti-competitive practices within the meaning of Title II of Book IV of the Commercial Code or Articles 101 and 102 of the Treaty on the Functioning of the European Union. "

113 Autorité de la concurrence, Communiqué of May 16, 2011 on the method of determining financial penalties).

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Beyond antitrust law, consumer protection is taken into account in French merger law. Point 317 of the Competition Authority's Merger Control Guidelines states that "merger control pursues a public interest objective of protecting competition and its positive effects on the overall competitiveness of the economy, innovation and the well-being of consumers ". Point 2, however, tempers this proposal by adding that "this control is not intended to protect the particular interests of competitors but to ensure that there is sufficient competition to ensure that consumer welfare is not achieved".

In view of the foregoing, it is clear that the interest of consumers is pervasive in the exercise of French competition law, particularly since the possibility open to consumer associations to act against a company, author of a anticompetitive practice in order to seek redress.

The notion of consumer in competition law is appreciated in its broadest sense since the exercise of competition law by a consumer, a natural person, is limited. Indeed, a consumer can not seize the regulatory authority to denounce an anti-competitive practice.

However, in addition to competition law which aims to protect collective interests, the Directorate General of Competition, Consumer Affairs and Fraud Control, as well as consumer law also offer other alternatives to ensure the defense of consumers.

Ultimately, the combination of competition law and consumer law contributes to market regulation and effective and complementary consumer protection.

The protection of intellectual property rights has a direct effect on the safety and health of consumers. In particular, actions against counterfeit medicines, spare parts, and other protected goods or products help to enhance consumer safety.

But on the other hand, there is a willingness to question certain monopolies from intellectual property rights in order to preserve economic interestsof the consumers. This is true of spare parts in the automotive sector. As advocated by the Competition Authority in its "Public Consultation Paper on the functioning of competition in the sectors of maintenance and repair of automobiles and the manufacture of spare parts for vehicles. How to boost competition in the automotive aftermarket? » (2012), the introduction into French law of a repair clause "would make it possible, on the one hand, to see the emergence of alternative offers at a lower price, on the other hand, to lower the prices of OEM parts (manufacturer's part) as a result of competition from alternative parts »114. A repair clause115 is to paralyze the protection of a design with respect to a part of a complex product, when that part is used for the purpose of repairing the complex product and thereby restoring its original appearance (headlight, bumper). The car manufacturers are obviously quite reluctant to this clause, especially as its scope is not clearly defined and is subject to divergence. Thus the French judge considered that a rim was excluded116 while the European judge did not117.

114 See point 181115 Art. 110 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs116 TGI Paris, 3rd chapter, 3rd section, 6th January 2017 (BMW): PIBD III, n ° 1069, 273.117 CJEU, Dec. 20 2017, aff. Jts C-397/13 and C-435/16, Acacia Srl v. Pneusgarda Srl.

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