COVID-19: Exceptional postponement of intellectual property deadlines in France

On 23 March 2020 , the French Government declared a state of health emergency until 24 May 2020 and issued order No. 2020-306 of 25 March 2020 to extend all deadlines expiring during this health crisis. This order applies to both administrative and judicial proceedings, and includes:

• the deadlines set by law (i.e., legal actions, oppositions and renewals)
• the deadlines set by the office (i.e., provisional refusals)
• the deadlines set by the courts (i.e., civil hearings and issuance of decisions).

According to this order, all deadlines expiring between 12 March 2020 and 24 June 2020 were postponed, being specified that these deadlines had to be recalculated from the end of the state of health emergency followed by a period of one month but could not exceed a period of two months. Thus, any deadline could not go beyond 24 August 2020.

Law n°2020-546 of 11 May 2020 extended the state of health emergency on which the extended deadlines were based. The end of the state of health emergency is now set for 10 July 2020.

However, order No. 2020-560 of 13 May 2020 setting the deadlines applicable to various procedures during the state of health emergency decorrelated the extension of the expired deadlines from the state of health emergency. Thus, the protected period is now defined as a fixed period running from 12 March 2020 to 23 June 2020 (at midnight).

Indeed, according to a presidential report , and in light of the resumption of activities since 11 May 2020, it is no longer necessary to extend the deadlines further to have them expired in September or October 2020.

Thus, and as examples:

• if a 1-month deadline expired on 21 April 2020, this deadline is now postponed to 23 July 2020
• if a 2-month deadline expired on 21 April 2020, this deadline is now postponed to 23 August 2020
• if a 3-month deadline expires on 10 June 2020, this deadline is now postponed to 23 August 2020.

Order No. 2020-560 of 13 May 2020 also provides for several exceptions.

For example, the order amends Article 3 of order No. 2020-306 of 25 March 2020 to avoid the expiration of certain administrative or jurisdictional measures in August and to allow "the interested parties to complete the necessary formalities during September" . This concerns in particular "precautionary measures, investigation, conciliation or mediation measures" which are thus "automatically extended until the expiration of a period of three months following the end of this period", i.e., until 23 September 2020.

Despite the extension of the above-mentioned deadlines, we are invited to take all possible actions and measures now, so as to avoid the congestion of the intellectual property office (“INPI”) and courts at the end of the crisis.

These measures should also apply to deadlines set in the context of cancellation actions proceedings, that came into force before INPI on 1st April 2020 and should impact the courts’ summer recess. However, these topics have not been addressed yet and we await further communications to keep you informed.

While the activity of the courts was limited to urgent and essential matters not related to intellectual property, it gradually resumed since 11 May 2020. This is particularly the case for summary proceedings in intellectual property matters. In this respect, the Paris court of first instance (“le tribunal judiciaire de Paris”) has indicated that it intends to give preference to proceedings without a hearing (“procédures sans audience”), in accordance with the order issued by its President on 27 April 2020 (order No. 59/2020). It should be noted that this decision cannot be challenged via the opposition proceeding pursuant to Article 8 paragraph 2 of order No. 2020-304 of 25 March 2020. The filing of submissions and its supporting evidence will be done in a dematerialized way, via the ATLAS platform.

In addition, if the service related to petitions for judge’s orders regarding seizure-infringement proceedings (“saisie-contrefaçon”) resumed its activity as of 11 May 2020, it will be impossible to have oral arguments in favor of the petitions "until the summer".

Currently, the first President of the Paris court of appeal, by the order No. 124/2020 of 23 April 2020, has only implemented proceedings without a hearing provided for in Article 8 of the aforementioned order No. 2020-304. We await further information, in particular concerning the emergency procedures.