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Liberalization of automotive spare parts: introduction of a “repair clause”

[02/09/2021] The Law no 2021-1104 of 22 August 2021 on the fight against climate change and strengthening resilience in the face of its effects was published in the Official Journal of 24 August 2021. 

Among the new provisions, there is a repair clause “Title III:  Production and work (Articles 30 to 102): Chapter I - Greening the economy (Articles 30 to 39)”.

The new version of the wording of the Articles of the Intellectual Property Code is not clear:

L. 513-1: The maximum period provided for in the first paragraph will be reduced from 25 years to 10 years for the parts mentioned in 4 of Article L. 513-6 for which such paragraph 4 does not provide for an exception to the exercise of the right conferred by the registration of a drawing or a design.

L.513-6: The following shall be excluded from the scope of the right conferred by a design:

  1. acts done privately and for non-commercial purposes;
  2. acts done for experimental purposes;
  3. acts of reproduction for the purpose of making citations or of teaching, provided that such acts are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the design, and that mention is made of the source.
  4. acts intended to restore its original appearance to a motor vehicle or trailer, within the meaning of Article L. 110-1 of the highway code, and which:
    • “a) relate to parts relating to glazing;
    • “b) or which are made by the suppliers who manufactured the original part.

In short:

  • Term of protection:

No retroactive effect regarding the duration of the already registered designs: the 10-year period of protection only applies to designs filed from 1 January 2023.

From 1 January 2023, the term of protection for (newly) filed designs will be 10 years for all spare parts for repair of a vehicle or trailer.

  • Enforceability from 1 January 2023

Drawings and Designs relating to:

  • Glazing parts of motor vehicles shall not be invoked to prevent acts intended to restore their original appearance.
  • Other spare parts of a motor vehicle or trailer shall not be invoked against the automotive manufacturer who manufactured the original part to prevent acts intended to restore their original appearance.

In concrete terms, the automotive manufacturer who manufactured the original part shall theoretically be able to compete with the manufacturer it supplies to sell spare parts. It is therefore not certain that this provision will be acted upon.

Other automotive manufacturers shall have to wait until the designs in force for spare parts (other than glazing) fall into the public domain in order to be able to reproduce and market them. Failing which, the design rights in force may be exercised against them.

It is regrettable that this reform was adopted on the sly while a broader reform of Directive 98/71 (Design Package) is under preparation - via public consultations - which should relate in particular to the introduction of a "repair clause" ... To be continued.

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