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    A drawing or model is considered new if, on the date of filing the application for registration or on the date of the claimed priority, no identical model or design has been disclosed, i.e. made accessible to the public (ex: publication, use, exhibition at a trade show or by any other means).

    Are you, or your employees, creating a product that has a new appearance or a specific feature? A shoe? A piece of furniture? A handbag? Apparel? A pattern? Do not disclose it before having filed a registered design application. If you shared, released, or presented your product to the public less than 12 months ago, you should apply for protection of the design and model as soon as possible and do so, before the 12-month time period expires. Failing that, your registered model and design risks being cancelled for lack of novelty.

    As such, Crocs, Inc.’s rights on the community model of its clogs did not survive the application for declaration of invalidity filed against them. Their novelty was destroyed due to the disclosure of the product more than 12 months prior to filing the registered Community design application.

    In its decision of March 14, 2018, the EGC considered that disclosure was constituted by: showing the clogs at issue at an international boat show in Fort Lauderdale, Florida; putting the clogs on sale in the United States (for which sales trends are substantial for the EU market) and featuring them on the internet (which, by nature, is accessible everywhere in the world).
    By doing so, and therein is the importance of the court ruling, the EGC took into account the evidence of disclosure having occurred outside of the European Union in order to rule on the invalidity of a community model.

    The company Crocs, Inc. could have avoided its model being invalidated if it had managed to prove that the invoked evidence did not constitute disclosure, i.e. that its model could not reasonably have been known, according to normal business practices in the industry concerned, in this case, shoe manufacturing and sales professionals operating within the European Union.

    The EGC specified elements that might have convinced the Court not to retain disclosure of the community model: proof that the website was not – in practice – consulted, or very little, by users from the EU; proof that the boat show had not been attended by exhibitors or participants from the EU; proof that the distribution and sales network of the clogs to which the disputed model or design had been applied was not, in actual fact, operational and that no orders had been placed via that network.

    This ruling strongly reminds the caution that creators and right holders must exercise before any disclosure of their product. The actual international means of communication inevitably leads to more easily take into account evidence having occurred outside of the European Union even when protection had been requested for the EU territory.

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    New measures to facilitate decision-making and the participation of shareholders in public limited companies (SA), companies limited by shares (SCA) and limited liability companies (SARL) introduced by French Decree n° 2018-146 dated February 28, 2018 as per ruling n° 2017-747 dated May 4, 2017.

    1. Shareholders’ Meetings held exclusively via remote, virtual means.

    The Articles of Association of public limited companies (SA) and companies limited by shares (SCA) may provide for general meetings held exclusively via videoconference or means of telecommunication enabling the identification of its shareholders.

    Nevertheless one or several shareholders, holding at least 5% of the capital, have the right to request that a physical meeting be convened. The Articles of Association must specify if this right to oppose is to be exercised before or after the formalities of convening the meeting.

    – Right to oppose exercisable prior to the convening of the general meeting:

    – The company must notify its shareholders of the meeting date at least 35 days prior to the former by sending the text of the draft resolutions and a reminder of the conditions for exercising the right to oppose.

    – The opposition must be addressed to the company at least 25 days prior to the meeting date.

    – Right to oppose exercisable after the convening of the general meeting:

    – The company sends to its shareholders the notice of meeting reminding them of the right to oppose and the conditions for exercising that right as well as the location where the meeting is to be held if opposition is made to holding it exclusively via remote, virtual means.

    – The opposition must be addressed to the company within 7 days following the publication or sending of the notice of meeting.

    – In the event of opposition, the company notifies its shareholders, at the latest 48 hours before the meeting, that it will not be held exclusively via remote, virtual means.

    2. Inclusion of items or draft resolutions on the agenda for the company’s (SARL) general meeting made by shareholder(s) holding at least 5% of the capital.

    Any and all companies (SARL) are required to send a notice to one or several shareholders holding at least 5% of the capital if so requested, informing them of the date scheduled for the assembly meeting.

    When shareholders seek to include an item or draft resolution on the agenda, they must justify their request, accompanied by the draft text if need be, and address it to the company at least 25 days prior to the meeting date. If the request is in compliance with the legal terms, management must include it on the agenda.

© Schmidt Brunet Litzler