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TEXTS TRANSCRIBING THE 1991 UPOV CONVENTION INTO NATIONAL LAW
In France, texts transcribing the 1991 UPOV Convention into national law have been collected in
the Intellectual Property Code. Full transcription was achieved with the adoption of the Law on
New Plant Variety Certificates of November 28, 2011, which was published in the Official Gazette
of the French Republic (JORF) on December 8, 2011, amending the legislative part of this Code,
inter alia to ensure the following:
- The principle of essentially derived variety was incorporated into French law, protecting
new plant variety rightholders against the marketing of another variety which differs from
the original variety by only a few non-essential characteristics in an agricultural and
technical sense.
- The farmers’ exception, also known as the “farm-saved seed” exception was incorporated
into French law, permitting harvested crops of protected varieties to be reused, under certain
conditions, as seeds in the holdings where they were produced. Previously, this practice was
prohibited for varieties protected by a national plant variety certificate under French law.
These texts are applicable to the entire plant kingdom, as specified in article R. 623(55) of
Intellectual Property Code.
The following enclosures are provided with the present Note:
1) The relevant legislative articles of the Intellectual Property Code.
2) The statutory articles of the Intellectual Property Code relating to its scope.
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1) Relevant legislative articles of the Intellectual Property Code
Article L. 623(1)
Amended by art. 3 of Law No. 2011-1843 of December 8, 2011
For the purposes of this Chapter, a “variety” shall consist of a plant grouping within a single
botanical taxon of the lowest known rank, which grouping can be:
1. defined by an expression of characteristics resulting from a given genotype or combination
of genotypes;
2. distinguished from any other plant grouping by the expression of at least one of the said
characteristics; and
3. considered as a unit with its suitability for being propagated unchanged.
Article L. 623(2)
Amended by art. 4 of Law No. 2011-1843 of December 8, 2011
For the application of this present chapter, a “plant variety” is a newly created variety which:
1. is clearly distinguishable from any other variety whose existence is a matter of common
knowledge at the time of filing the application;
2. is uniform, i.e. sufficiently uniform in its relevant characteristics, subject to the variation
that may be expected from the particular features of its sexual reproduction or vegetative
propagation;
3. remains stable, i.e. identical to its original definition after repeated reproduction or
propagation or, in the case of a particular cycle of reproduction or propagation, at the end of
each such cycle.
Article L. 623(3)
Amended by art. 4 of Law No. 2011-1843 of December 8, 2011
Any new plant variety fulfilling the conditions of article L. 623(2) shall be defined by a
denomination, with a corresponding description and a reference specimen preserved in a collection.
Article L. 623(4)
Amended by art. 5 of Law No.2011-1843 of December 8, 2011
I. Any new plant variety may be the subject of a title known as “a new plant variety
certificate” which shall confer on its owner an exclusive right to produce, reproduce,
condition for the purpose of reproduction or propagation, offer for sale, sell or market in any
other form, export, import or stock reproduction or propagation material of the protected
variety for any of the purposes mentioned.
II. When the products mentioned in paragraphs1 and 2 below are obtained through the
unauthorized use of reproduction material or propagation material of the protected variety,
the exclusive right shall extend to the following, unless the breeder has had reasonable
opportunity to exercise his right in relation to the products in question:
1. the harvested material, including entire plants and parts of plants;
2. products which are manufactured directly from harvested material of the protected
variety.
III. The exclusive right of the rightholder shall extend to:
1. varieties which are not clearly distinguishable from the protected variety within the
meaning of article L. 623(2);
2. varieties whose production requires repeated use of the protected variety; and
3. varieties which are essentially derived from the protected variety within the meaning of
article L. 623(2), where this variety is not itself an essentially derived variety.
IV. Constitutes a variety which is essentially derived from another variety known as the “ initial
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variety”, a variety which:
1. is predominantly derived from the initial variety or from a variety which itself is
predominantly derived from the initial variety;
2. is clearly distinguishable from the initial variety within the meaning of article L. 623(2);
and
3. except for differences which result from the act of derivation, conforms to the initial
variety in the expression of the essential characteristics that result from the genotype or a
combination of genotypes of the initial variety.
Note:
Article 19(I)(III) of Law No. 2011-1843 of December 8, 2011 provides: “The amended or new
provisions of this article, except for those relating to essentially derived varieties, shall be
applicable to new plant variety certificates issued before December 11, 2011. These provisions
shall also apply to new plant variety certificates issued for applications for certificates registered
before this date. The present paragraph IV does not apply to essentially derived varieties where the
breeder made diligent and effective preparations with a view to their exploitation or the breeder
exploited them prior to this date.
Article L. 623(4)(1)
Set forth in art. 6 of Law No. 2011-1843 of December 8, 2011
I. The right of the holder shall not extend to:
1. Acts done privately and for non-professional or non-commercial purposes;
2. Acts done for experimental purposes; and
3. Acts done for the purpose of breeding a new variety or acts referred to in article L. 623(4)(I)
relating to this new variety, unless paragraphs III and IV of that article are non-applicable.
II. The right of the rightholder shall not extend to acts concerning his variety or an essentially
derived version of his variety or a variety which is not clearly distinguishable when material
of this variety or material derived from this variety has been sold or marketed in whatever
form by the holder or with his consent.
However, the right of the rightholder shall be maintained where these acts:
1. involve further reproduction or propagation of the variety in question;
2. involve exportation of material of the variety which enables the propagation of the
variety into a country which does not protect the intellectual property of varieties of the
plant genus to which the variety belongs, except where the exported material is for final
animal or human consumption.
Article L. 623(5)
Amended by art. 7 of Law No.2011-1843 of December 8, 2011
I. The variety shall no longer be considered to be new if plant reproduction or propagating
material or harvested material is been sold or otherwise disposed of to others by the breeder
or with the breeder’s consent for the purposes of exploitation of the variety for more than
twelve months on French territory or within the territory of the European Economic Area.
The variety shall no longer be considered to be new in case of sale to others or disposal by
other means by the breeder or with the breeder’s consent for the purposes of exploitation of
the variety in another territory for more than four years prior to the filing date of the
application for the new plant variety certificate or, in the case of vines, for more than six
years prior to said date.
II. The disposal of material of the variety to an official authority or officially recognized
authority under the terms of a statutory obligation for the purposes of experimentation or
displaying the variety at an officially recognized exhibition, subject to the express
stipulation of the breeder in the latter two cases that the commercial exploitation of the
variety whose material has been provided is prohibited, shall not be considered as disposal
to others within the meaning of paragraph I above.
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Article L. 623(6)
Amended by art 8 of Law No.2011-1843 of December 8, 2011
A new plant variety certificate may be requested by any national of a State Party to the International
Convention for the Protection of New Varieties of Plants and any national from a Member State of
the European Union or a person having his domicile, headquarters or establishment in one of these
States.
A person filing an application for a new plant variety certificate in France may benefit from the
right of priority for a first application previously filed by said person or by its author for the same
variety in one of the said States provided the application filed in France does not postdate the first
application by more than twelve months.
The novelty, within the meaning of Article L. 623(5), of the variety whose application is granted
priority as defined in the second paragraph hereof, shall be determined from the date of filing of the
priority application.
Apart from the cases set forth in the first paragraph, any foreigner may enjoy the protection
afforded by this Chapter provided a French national may enjoy reciprocity of protection by the State
of which he is a national or in which he has his domicile, headquarters or establishment.
Article L. 623(7)
Amended by art. 1 of Law No. 2011-1843 of December 8, 2011
The certificate issued by the authority mentioned in Article L. 412(1) shall come into effect from
the date of filing of the application. Any rejection of an application must be reasoned.
Article L. 623(8)
Amended by art 1 of Law No. 2011-1843 of December 8, 2011
The Minister of Defense may contact the authority mentioned in Article L. 412(1) and acquaint
himself confidentially with applications for certificates.
Article L. 623(9)
Set forth in Law 92-597 July 1, 1992 – see annex to JORF of July 3, 1992
The list of plant species for which applications for a plant variety certificate cannot be disclosed and
freely exploited without a special authorization shall be prescribed by regulation.
Subject to Article L. 623(10), such authorization may be granted at any time. It is obtained as of
right after a period of five months with effect from the date of filing of the application for a
certificate.
Article L. 623(10)
Set forth in Law 92-597 July 1, 1992 – see annex to JORF of July 3, 1992
Before expiry of the deadline indicated in the last paragraph of Article L. 623(9), the prohibitions
set forth in the first paragraph of the said article may be extended for a period of one year
renewable, upon request of the Minister of Defense. The prohibitions thus extended may be lifted
at any time under the same condition. The extension of the prohibitions issued in this article shall
entitle the holder of the application for a certificate to claim an indemnity according to the prejudice
suffered. In the absence of agreement, this indemnity shall be fixed by the judicial authority.
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Article L. 623(11)
Set forth in Law 92-597 of July 1, 1992 – see annex to JORF of 3 July1992
The holder of the certificate may request a review of the indemnity provided for by article L.
623(10) after the expiry of the one-year time limit following the date of the final judgment fixing
the amount of the indemnity. The holder of the certificate shall bring evidence to show that the
prejudice suffered is greater than the estimate of the court.
Article L. 623(12)
Amended by art. 4 of Law No. 2011-1843 of December 8, 2011
Amended by art. 9 of Law No. 2011-1843 of December8, 2011
The certificate shall be issued only if the result of a prior examination shows that the variety for
which protection is sought is a new plant variety in accordance with article L. 623(2).
However, the authority mentioned in Article L. 412(1) may consider that a prior examination
conducted in another State which is party to the International Convention for the Protection of New
Varieties of Plants is sufficient. The authority may take into account an examination carried out by
the breeder or his beneficiary.
This committee may seek the assistance of foreign experts.
Article L. 623(13)
Amended by art 1 of Law No. 2006-236 of March 1, 2006 – see JORF of March 2, 2006
The period of protection shall be twenty-five years with effect from the date of issue.
The period of protection for forest trees, fruit trees or ornamental trees, vines and also for perennial
forage legumes and forage grasses, potatoes and inbred lines used to produce hybrid varieties, is
thirty years.
Article L. 623(14)
Amended by art. 10 of Law No. 2011-1843 of December 8, 2011
Applications for new plant variety certificates, acts including the issuance of such certificates and
all acts transferring or amending the rights attached to an application for a certificate or to an issued
certificate shall only be valid with respect to third parties if they have been published on a regular
basis under the conditions set out by order of the Conseil d’Etat.
Article L. 623(15)
Amended by art. 11 of Law No. 2011-1843 of December 8, 2011
The certificate shall designate the new plant variety by a denomination enabling it to be identified
without confusion or ambiguity in any State party to the International Convention for the Protection
of Plant Varieties.
The breeder shall be required to conserve a permanent plant collection of the protected variety.
A description of the new variety shall be included as an annex to the new plant variety certificate.
The certificate shall be effective against third parties upon its publication. The denomination
indicated on the certificate shall become compulsory upon its publication for all commercial
transactions even after the term of the certificate has expired.
The denomination of the said new variety may not be used to deposit a title of a trademark or a
trade name in a State Party to the International Convention for the Protection of Plant Varieties.
However, such deposit may be carried out as a safeguard measure without impeding the issuance of
a new plant variety certificate, provided the proof of waiver of the effects of this deposit in the
States party to the UPOV Convention is furnished prior to the issuance of the said certificate.
The stipulations of the preceding paragraph shall not impede the adding of a trademark or trade
name to the denomination of the variety for the new plant variety.
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Article L. 623(16)
Amended by art. 1 of Law No. 2011-1843 of December 8, 2011
Prior examination, the issuance of a certificate and all acts of registration or cancellation shall entail
the payment of fees for services rendered.
A fee shall be paid each year during the entire period of validity of the certificate.
The scale of fees shall be fixed by regulation.
The proceeds of these fees shall be included in the revenues of the public benefit corporation
mentioned in article L. 412(1).
Article L. 623(17)
Set forth in Law No. 92-597 of July 1, 1992 – see annex to JORF of July 3, 1992
A variety which is essential to human or animal life may be subject to the automatic licensing
regime by decree of the Conseil d’Etat or, when it is of interest to public health, by joint order of
the Minister of Agriculture and the Minister of Public Health.
Article L. 623(18)
Set forth in Law No. 92-597 of July 1, 1992 – see annex to JORF of July 3, 1992
From the day of publication of the order subjecting new plant variety certificates to the automatic
licensing regime, any person providing technical and professional guarantees may apply to the
Minister of Agriculture for a license for their exploitation.
Such license may only be non-exclusive. It shall be granted by the Minister of Agriculture under
special conditions with respect to its duration and scope, but excluding the fees arising therefrom.
It shall come into effect on the day of notification of the order to the parties.
In the absence of mutual agreement, the amount of these fees shall be fixed by the judicial authority,
determined in accordance with article L. 623(31).
Article L. 623(19)
Amended by art. 1 of Law No. 2011-1843 of December 8, 2011
If the holder of an automatic license does not meet the required conditions, the Minister of
Agriculture may declare the license forfeit after seeking the opinion of the Authority mentioned in
article L. 412(1).
Article L. 623(20)
Set forth in Law 92-597 July 1, 1992 see annex to JORF of July 3, 1992
For national defense purposes, the State may at any time automatically obtain a license for the
exploitation of a new plant variety for which an application has been filed or a certificate has been
issued, where such exploitation is carried out by the State itself or on its behalf.
The automatic license shall be granted upon request of the Minister of Defense by order of the
Minister of Agriculture. Such order shall set out the licensing conditions, excluding the relevant
fees. The license shall come into effect on the date of the application for the automatic license. In
the absence of agreement, the amount of the fees shall be fixed by the judicial authority and shall be
fixed in accordance with article L. 623(31).
Article L. 623(21).
Set forth in Law 92-597 July 1, 1992 see annex to JORF of July 3, 1992
The rights attached to an automatic license may not be sold or transferred.
Article L. 623(22)
Set forth in Law 92-597 of July 1, 1992 – see annex to JORF of July 3, 1992
For national defense purposes, the State may, at any time by decree, wholly or partially expropriate
new plant varieties for which applications for certificates have been filed or certificates issued.
In the absence of mutual agreement the expropriation indemnity shall be fixed by the tribunal de
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grande instance.
Article L. 623(22)(1)
Set forth in article 8 of Law No. 2004-1338 of December 8, 2004 – see JORF of December 9, 2004
When the holder of a patent on a biotechnological invention is unable to exploit said patent without
violating upon an earlier plant breeder’s right, he may request the granting of a license to exploit the
protected variety as long as this invention represents significant technical progress with regard to
the plant variety and is of considerable economic value. The applicant must justify that he was able
only to obtain a license from the rightholder for the exploitation of the variety and that he is
exploiting the variety diligently and effectively.
Article L. 623(22)(2)
Set forth in art. 8 of Law No. 2004-1338 of December 8, 2004 – see JORF of December 9, 2004
Applications for a license provided for in article L. 623(22)(1) shall be filed at the tribunal de
grande instance.
Licenses shall be non-exclusive. The court shall determine their duration, scope and the amount of
fees arising therefrom. These conditions may be amended by decision of the court at the request of
the holder of the right or license.
The rights conferred by the license may only be transferred with the company or part of the
company or goodwill to which they are attached.
If such a license is granted, the rightholder shall obtain a reciprocal license in fair conditions in
order to use the protected invention, upon application to the court.
If the holder of a license does not meet the conditions under which the license was granted, the
holder of the new plant variety certificate and, where applicable, the other licensees may obtain the
withdrawal of this license by the court.
Article L. 623(22)(3)
Set forth in art. 12 of Law No. 2011-1843 of December 8, 2011
Any individual or corporate body may obtain a compulsory license according to the conditions set
forth in the present article and article L. 623(22)(4).
An application for a compulsory license shall be filed with the tribunal de grande instance where
the rights holder is located. It must be accompanied by documentation showing that:
1. the applicant was unable to obtain a license during a period of one year with effect from the
date of his application to the holder of the certificate;
2. the applicant is exploiting the variety diligently and effectively;
3. the license is in the public interest, particularly with regard to acute shortages in the
agricultural market concerned by this variety.
The application for a compulsory license may be filed pursuant to paragraphs 2-5 hereof by the
holder of the certificate for an essentially derived variety of a protected variety who was not able to
obtain the authorizations required for the exploitation of his own variety from the holder of the
initial variety certificate.
Similarly, the holder of the certificate protecting the initial variety may obtain a license arising from
the certificate protecting the essentially derived variety. The compulsory license shall be non-
exclusive. The court shall determine its duration, scope and the amount of the relevant fees.
These conditions may be amended by the court at the request of the rightholder or the licensee. If
the holder of a compulsory license does not meet the conditions for holding the license, the holder
of the plant variety certificate, and where applicable, the other licensees may obtain the withdrawal
of this license by the court.
Note:
Art. 19(I) of Law No. 2011-1843 of December 8, 2011: New provisions of this article shall be
applied to plant variety certificates issued before December 11, 2011. These provisions shall also
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be applied to plant variety certificates issued for applications registered before this date.
Article L. 623(22)(4)
Set forth in art. 12 of Law No. 2011-1843 of December 8, 2011
The rights deriving from a compulsory license may not be sold or transferred, save with the
company or the part of the company to which they are attached.
Such sale or transfer shall be subject to the authorization of the court, on pain of nullity.
Note:
Art. 19(I) of Law No. 2011-1843 of December 8, 2011: The new provisions of this article shall
apply to breeder’s certificates issued before 11 December 2011. These provisions shall also apply
to certificates issued following an application recorded before that date.
Article L. 623(23)
Amended by art. 1 of Law No. 2011-1843 of December 8, 2011
Amended by art. 13 of Law No. 2011-1843 of December 8, 2011
The holder of a plant breeder’s certificate shall lose his rights if:
1. He is unable at any time to show the authorities the plant propagating material enabling
reproduction of the protected variety with the morphological and physiological
characteristics identified in the breeder’s certificate;
2. He refuses to undergo the inspections conducted with a view to ascertaining the steps he has
taken for the conservation of the variety; and
3. He fails to pay the annual fee provided for in article L. 623-16(2) within the prescribe time
limit.
The loss of rights shall be noted by the agency mentioned in article L. 412(1). Where rights are lost
under the terms of paragraph 3 above, the rightholder may, within six months of the expiry of the
prescribed time limit, lodge an appeal for his rights to be reinstated if he can advance a legitimate
reason for the failure to pay the fee. Such appeal may not, however, violate the rights of third
parties where applicable. The final decision noting the loss of rights shall be made
public.http://www.legifrance.gouv.fr/affichCodeArticle.do?cidTexte=LEGITEXT000006069414&id
Article=LEGIARTI000006279282&dateTexte=&categorieLien=cid
Set forth in art. 14 of Law No. 2011-1843 of December 8, 2011
The plant breeder’s certificate shall be declared null be a court decision if it is found:
1. that the breeder’s right has been granted to a person who is not entitled to it, unless it is
transferred to the person who is so entitled; or
2. that on the date on which it was issued, the variety did not satisfy the conditions set forth in
article L. 623(2).
Article L. 623(23)(1)
Amended by art. 1 of Law No. 2011-1843 of December 8, 2011
Amended by art 15 of Law No. 2011-1843 of December 8, 2011
The provisions of article L. 613(8) and L. 613(29) to L. 613(32) shall apply to applications for plant
variety certificates and breeder’s certificates.
The same shall hold true for article L. 613(9), L. 613(21) and 613(24), the agency mentioned in
article L. 412(1) replacing the National Industrial Property Institute.
Article L. 611(7) shall also apply to plant breeder’s certificates, since inventions are understood to
be the varieties, patents to be the plant breeder’s certificates and the arbitration commission as being
that instituted by a specific decree in the particular area of plant varieties.
Article L. 623(24)(1)
Set forth in art. 16 of Law No. 2011-1843 of December 8, 2011
By exception to article L. 623(4), for the species listed in Council of Europe Regulation (EC) No.
2100/94 of July 27, 1994 on Community plant variety rights and for other species which may be
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listed by decree in the Conseil d’Etat, farmers may use on their own holding, without the
authorization of the breeder for propagation purposes the product of the harvest which they have
obtained by planting a protected variety.
Note:
Article 19(II) of Law No. 2011-1843 of December 8, 2011: These provisions shall apply to plant
breeder’s certificates issued before December 11, 2011.
Article L. 623-24(2)
Set forth in art. 16 of Law No. 2011-1843 of December 8, 2011
Save for small farmers within the meaning of the aforementioned Regulation (CE) No. 2100/94, the
farmer shall pay the rightholder a fee for using his varieties.
Note:
Article 19(II) of Law No. 2011-1843 of December 8, 2011: These provisions shall apply to plant
breeder’s certificates issued before December 11, 2011.
Article L. 623-24(3)
Set forth in art. 16 of Law No. 2011-1843 of December 8, 2011
Where no contract exists between the rightholder and the farmer, or between several rightholders
and a specific group of farmers, or no inter-professional agreement has been reached according to
the stipulations of Part II, Title III of Book IV of the Rural and Maritime Fisheries Code, the
application of the exemption set forth in article L. 623-24(1) herein, including the procedure for
fixing the amount of the compensation referred to in article L. 623-24(2), whose amount is
substantially lower than the amount received for the production under license of the propagation
material of the same variety, shall be fixed by decree of the Conseil d’Etat as provided for in article
L. 623-24(1).
Note.
Article 19(II) of Law No. 2011-1843 of December 8, 2011: These provisions shall apply to plant
breeder’s certificates issued before December 11, 2011.
Article L. 623-24(4)
Set forth in art. 16 of Law No. 2011-1843 of December 8, 2011
Where farmers contract service providers to sort their seeds, such sorting must be conducted in
conditions which make it possible to guarantee the traceability of the products of protected
varieties. In the event of failure to respect these conditions, the seeds shall be considered to have
been sold and shall be judged to be counterfeits within the meaning of article L. 623(25).
Note:
Article 19(II) of Law No. 2011-1843 of December 8, 2011: These provisions shall apply to plant
breeder’s certificates issued before December 11, 2011.
Article L. 623-24(5)
Set forth in art 16 of Law No. 2011-1843 of December 8, 2011
Should the farmer fail to comply with the conditions for exemption set forth in article
L. 623(24)(1), he shall lose the benefit of the provisions of the present section.
Note:
Article 19(II) of Law No. 2011-1843 of December 8, 2011: These provisions shall apply to plant
breeder’s certificates issued before 11 December 2011.
Article L. 623-25
Amended by art. 17 of Law No. 2011-1843 of December 8, 2011
Subject to the provisions of article L. 623(24)(1), any deliberate violation of the rights of the
rightholder as defined in article L. 623(4) shall constitute counterfeiting which entails the civil
liability of the counterfeiter. Within the meaning of this article, incorrect use or misuse of the
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denomination of the protected variety shall also constitute violation of a breeder’s right.
The holder of an ex officio license referred to in article L. 623(17) and L. 623(20), the holder of a
compulsory license referred to in article L. 623(22)(3) and, unless otherwise provided, the holder of
an exclusive right of exploitation may take the action provided for in paragraph 1 hereof if,
following a warning, the rightholder does not take such action.
The rightholder may join the proceedings instituted by the licensee in accordance with the
preceding paragraph.
Any licensee may join the proceedings instituted by the rightholder in order to secure reparation for
his own damages.
Note:
Article 19(I) of Law No. 2011-1843 of December 8, 2011: These old or new provisions shall apply
to plant breeder’s certificates issued before December 11, 2011. These provisions shall also apply to
certificates issued for applications recorded before that date.
Article L. 623(26)
Set forth in Law No. 92-597 of July 7, 1992 – see annex to JORF of July 3,1992
Acts predating the publication of the issuance of the certificate shall not be considered to have
violated the rights conferred by the certificate. Nonetheless, acts following the notification to the
presumed person responsible of a certified true copy of the application for a certificate may be
investigated and prosecuted.
Article L. 623(27)
Amended by art. 20 of Law No. 2007-1544 of October 29, 2007 –see JORF of October 30, 2007
Any person empowered to deal with counterfeiting may refer a matter to the civil court with
jurisdiction, if necessary under fine, against the alleged counterfeiter or the intermediaries whose
services he uses, to secure an order for any measure intended to prevent the imminent violation of
the rights conferred by the right or to prevent the continuation of alleged acts of counterfeit. The
civil court with jurisdiction may also order any urgent measures upon application where the
circumstances require that these measures not be taken adversarially, in particular where any delay
may be irreparably prejudicial to the applicant. Whether seize by application or by referral, the
court may only order the measures being sought if evidence reasonably accessible to the applicant
contains serious indicia that the applicant’s rights are being violated or that such violation is
imminent.
The court may prohibit the continuation of the alleged counterfeiting, subject it to the issuance of
guarantees intended to ensure the compensation, as the case may be, of the applicant, or order the
seizure or custody by third parties of the products suspected of violating the rights vested by virtue
of the title, to prevent their introduction or circulation in commercial channels. If the applicant can
support his allegation of circumstances likely to jeopardize the preventive seizure of movable and
immoveable property belonging to the alleged counterfeiter, including the freezing of his bank
accounts and non-personal assets, may be ordered in accordance with ordinary law. To determine
the property likely to be seized, the court may order the disclosure of banking, financial accounting
or commercial documents or access to the relevant information.
It may also grant the applicant an allowance where the existence of the damages he has suffered is
not reasonably in doubt.
If seize by referral or application, the court may subject the execution of the measures it orders to
the issuance by the applicant of guarantees intended to ensure the compensation, if necessary, of the
defendant of the proceedings for counterfeiting if the action for counterfeit is subsequently found to
be unsubstantiated or the measures are reversed.
Where measures taken to stop a violation of rights are ordered before the institution of substantive
proceedings, the applicant must take action before a civil or criminal court within a time limit fixed
by regulations. Barring that, upon application by the defendant, which need not advance any
grounds, the measures ordered shall be reversed without prejudice to any damages which may be
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claimed.
Article L. 623(27)(1)
Set forth in art. 20 of Law No. 2007-1544 of October 29, 2007 –see JORF of October 30, 2007
Counterfeiting may be established by any means.
Thus, any person empowered to proceed against counterfeiting may, in any location, direct any
bailiffs, assisted by experts designated by the applicant, following an order rendered in response to
an application before the civil court with jurisdiction, secure either the detailed description, with or
without the taking of samples, or the actual seizure of the alleged counterfeits and any document
related thereto.
For the same evidentiary purposes, the court may order, the actual seizure of materials and
instruments used to produce or distribute the alleged counterfeits.
The court may make the measures it orders conditional upon provision by the applicant of
guarantees intended to ensure the compensation, if necessary, of the defendant if the action for
counterfeiting is subsequently found to be unsubstantiated or the seizure reversed.
Should the applicant fail to make substantive allegations either before a civil or a criminal court
within the prescribed time limit, the entirety of the seizure, including the description thereof, shall
be cancelled at the request of the party subject to the seizure, without such party being required to
adduce reasons and without prejudice to any damages which may be claimed.
Article L. 623(27)(2)
Set forth in art. 20 of Law No. 2007-1544 of October 29, 2007 – see JORF of October 30, 2007
Upon request, the court seized of an application in civil proceedings provided for herein may order,
if necessary under fine, for the purposes of determining the origin and distribution network of the
counterfeit products which violate the rights of the application, the disclosure of all documents or
information held by the defendant or by any other person found in possession of the counterfeit
products or who provides services used in the counterfeiting or who has been reported as
participating in the production Article L. 623(22)(4), manufacture or distribution of the products or
the provisions of these services.
The disclosure of documents or information may be ordered if there is no legal impediment.
The documents or information sought shall concern:
(a) the name and address of producers, manufacturers, distributors, supplies and non-personal prior
holders of the products or services, as well as receiving wholesalers and retailers;
(b) the quantities produced, marketed, delivered received or ordered, as well as the price of the
products or services in question.
Article L. 623(28)
Amended by art. 21 of Law No. 2007-1544 of October 29, 2007 – see JORF of October 30, 2007
To determine damages, the court shall take into consideration the adverse economic effects,
including loss, suffered by the injured party, the profits made by the counterfeiter and the moral
prejudice caused to the rightholder as a result of the infringement.
Nonetheless, as an alternative and upon request by the injured party, the court may award by way of
damages a lump sum which may not be less than the amount of the fees or rights which would have
been payable if the counterfeiter had sought the authorization to avail himself of the rights he has
usurped.
Article L. 623(28)(1)
Set forth in art. 21 of Law No. 2007-1544 of October 29, 2007 – see JORF of October 30, 2007
In case of a finding of guilt for counterfeiting, the court may order, at the request of the injured
party, that the products found to be counterfeits and the materials and instruments which mainly
served in their creation or manufacture be withdrawn from commercial channels, permanently
removed from such channels, destroyed or confiscated to the benefit of the injured party.
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The court may also order any measures it considers appropriate for the publicity of the judgment, in
particular its posting or publication in extenso in the newspapers or the online public
communication services it selects, according to the arrangements it orders.
The measures stipulated above shall be at the expense of the counterfeiter.
Article L. 623(29)
Set forth in Law No. 92-597 of July 1, 1992 – see annex to JORF of July 3, 1992
The civil and criminal proceedings provided for in this chapter must be instituted no later than three
years after the acts triggering them.
If civil proceedings are instituted, they shall have suspensive effect over the time limit of criminal
proceedings.
Article L. 623(30)
Amended by art. 21 of Law No. 2007-1544 of October 29, 2007 – see JORF of October 30, 2007
Where a variety which is the subject of an application for a breeder’s certificate is exploited for the
purposes of national defense by the State or its suppliers, subcontractors and subsidiary suppliers
without a license, the court seized of the matter may not order the cessation or suspension of such
exploitation, or the confiscation provided for in article L. 623(28)(1).
If the presiding judge of the court seized of the matter orders an expert opinion or a description with
or without actual seizure, the representative of the public official in charge of the matter must
suspend the seizure, description and any search in the company concerned if the research or
propagation contract bears a defense security classification.
The same shall apply if the research or propagation is conducted in an army facility.
The presiding judge of the court seized of the matter may, if so requested by the rightholder, order
an expert opinion which may be produced by two persons accredited by the Ministry of Defense, in
the presence of its representatives.
The provisions of article L. 623(26) shall not apply to applications for plant breeder’s certificate
exploited in the conditions defined herein so long as such applications are subject to the
prohibitions provided for in article L. 623(9) and L. 623(10).
The authors of such exploitation shall be fully liable in accordance with the present article.
Article L. 623(31)
Amended by art. 1 of Law No. 2011-1843 of December 8, 2011
Civil action and applications relating to plant varieties, including where they also concern a related
matter of unfair competition, shall be exclusively heard by a tribunal de grande instance, whose
number may not be less than 10, save for appeals against administrative action by a ministry, which
shall fall under the jurisdiction of an administrative court.
The Paris Court of Appeal shall be directly seized of appeals against decisions of the organ
mentioned in article L. 412(1) rendered in accordance with the present chapter.
The preceding provisions shall not impede the use of arbitration in the conditions provided for by
article 2059 and 2060 of the Civil Code.
Article L. 623(32)
Amended by art. 3 of Law No. 2011-267 of March 14, 2011
Any deliberate violation of the rights of the holder of a plant breeder’s certificate, as defined in
article L. 623(4), shall constitute an offence punishable by a fine of 10,000 euros. If in the previous
five years, the defendant has been found guilty of the same offense or, in case of the commission of
the offence by an organized enterprise or on an online public communication network, a term of
imprisonment of six months may also be ordered.
Article L. 623 (32)(1)
Set forth in art. 22 of Law No. 2007-1544 of October 29, 2007 – see JORF of October 30, 2007
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Individuals found guilty of the offence provided for in article L. 623(32) may also be ordered, at
their expense, to withdraw from commercial channels any counterfeit objects and any item which
served or was intended to serve in the commission of the offense.
The court may order the destruction, at the cost of the guilty party, or the transfer to the injured
party of objects and items withdrawn from commercial channels or confiscated, without prejudice
to any award for damages.
The court may also order, at the expense of the guilty party, the posting of the judgment or its
broadcast within the meaning of article 131(35) of the Criminal Code.
Article L. 623(32)(2)
Amended by art. 125 of Law No. 2009-526 of May 12, 2009
Corporate bodies found to be criminally responsible within the meaning of article 121(2) of the
Criminal Code, for the offense defined in article L. 623(32) shall, in addition to the fine stipulated
in article 131(38) of the Criminal Code, be liable for the punishment provided for in article 131(39)
of the Criminal Code.
The prohibition mentioned in article 131(39)(2) of the Criminal Code concerns acts performed in
the course of or as a result of the activity during which the offense was committed.
Corporate bodies found to be criminally responsible may moreover be ordered, at their expense, to
withdraw from commercial channels the objects found to be counterfeit and any item which served
or was intended to serve in the commission of the crime.
The court may order the destruction at the expense of the guilty party or the transfer to the injured
part of the objects and items withdrawn from commercial channels or confiscated, without prejudice
to any award for damages.
Article L. 623(33)
Set forth in Law No. 92-597 July 1, 1992 – see annex to JORF of July 3, 1992
Action by the public prosecutor for the application of the punishment provided for in the previous
article may only be taken by the public prosecutor following a complaint by the injured party.
The magistrate’s court seized of the matter may only rule after the civil court has established the
actuality of the offense by a decision which is res judicata. Challenges by the defendant alleging the
nullity of the breeder’s certificate or questions relating to the propriety of the said certificate may
only be raised before the civil court.
Article L. 623(35)
Amended by art. 3(V) of Order No. 2000-916 of September 19, 2000 – see JORF of September 22,
2000, in force as from January 1, 2002
Without prejudice, if more serious sentences provided for in case of offences against the security of
the State are applicable, any person who knowingly acts outwith any of the prohibitions provided
for in articles L. 623(9) and L. 623(10) shall be punishable by a fine of 4,500 euros. If the violation
has been detrimental to national defense, a term of imprisonment of five years may also be
imposed.
2) Relevant article of the regulatory part of the Intellectual Property Code relating to the scope of the protection
Article R. 623(55)
Amended by art. 1 of Decree No. 95-1407 of December 28, 1995 – see JORF of January 4, 1996
1. Plant breeder’s certificates may be issued in the conditions provided for in article L. 623(1)
to L. 623(35) and article R. 623(1) to R. 623(54) for any variety belonging to a species of
the plant kingdom.
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Any foreigner who is a national of a State Party to the International Convention for the
Protection of New Varieties of Plants of 2 December 1961, as revised on November 10,
1972, or has his residence, headquarters or business in one of these Member States may
obtain a plant breeder’s certificate for the varieties belonging to the genus or species falling
under the same protection and enumerated in the annex to this convention or on a
supplementary list prepared in accordance with its provisions.
Any foreigner who is a national of a State Party to the International Convention for the
Protection of New Varieties of Plants in the modified text of October 23, 1978 or has his
residence, headquarters or premises in a State Party may obtain a plant breeder’s certificate
under the same conditions as French nationals.
2. Foreigners who hold neither the nationality of one of the States Parties and who do not have
their residence, headquarters or premises in a State Party may not obtain plant breeder’s
certificates unless French nationals benefit from reciprocal protection on the part of the State
of which the foreigner is a national or where he has his residence, headquarters or premises.
Orders made by the Minister of Foreign Affairs and the Minister of Agriculture upon
proposal of the commission for the protection of plant varieties shall prepare a list of States
whose legislation satisfies the criterion of reciprocity. Such orders may include an
exhaustive list of plant varieties for which the criterion of reciprocity has been satisfied.
Article R. 623(56)
Amended by art. 1 of Decree No. 95-1407 of December 28, 1995 – see JORF of January 4, 1996
The term of protection shall be twenty years.
For forest, fruit or ornamental trees, vine and grains and perennial fodder legumes, potatoes and
inbred lines used for the production of hybrid varieties, the duration of the protection shall be
twenty-five years.
Article 9 bis(57)
Amended by art. 1 of Decree No. 95-1407 of December 28, 1995 – see JORF of January 4, 1996
The breeder’s right shall concern all the parts of any plant propagating material of the variety under
consideration together with part or all of the plant of that variety.
Article 9 bis(58)
Amended by art. 1 of Decree No. 95-1407 of December 28, 1995 – see JORF of January 4, 1996
Any person who, during all the acts of transfer or concession or sale of the varieties referred to in
the preceding articles, wishes to make use of the facility afforded by article L. 623(15) to attach to
the variety denomination a trade or manufacture mark, whether he owns the mark or holds it by way
of concession, must take the necessary precautions, in particular in correspondence, advertising, the
preparation of commercial brochures, on packaging or labels, to ensure that such denomination is
sufficiently apparent in its context that no confusion is likely to arise in the mind of the buyer as to
the identity of the variety.