#ProfitIP – Profitability of Industrial Property (YIC)

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As for the RTC and the ITC already presented, the ” Young Innovative Company” legal system is an interesting tax tool to limit IP expenses and to exploit the commercial and legal advantages inherent to the related rights (without neglecting the communication and marketing efforts needed to make substantial profits from these rights).

Young Innovative Company (YIC)

Beneficiaries:
cumulatively
-SME (less than 250 employees whose turnover is less than 50M € or whose balance sheet total is less than 43M €);
-with an activity of less 8 years;
– owned at more than 50% by individuals, a single SME, financing companies or the like, research organizations, YIC;
– of which at least 15% of expenses correspond to R&D expenses.

The request must be made to the tax authorities and evaluated at the end of the financial year.

Legal system:
Exemptions up to € 200,000
-100% of corporate tax on the first exercise;
-50% of corporate tax on the second year;
-100% of employers’ social contributions (salaries of CEOs, researchers, technicians …);
– (depending on the City) 100% property tax and corporate city tax (CFE).

In comparison, the YIC is more restrictive, but more financially attractive than the ITC (potentially € 80,000).
The most interesting is the RTC (potentially more than 30 000 000 €).

The request must be made in the form of a sworn declaration to be submitted to the regional or departmental directorate of public finances. No declaration is to be made to Urssaf. The company applies the exemption on the summary statement of contributions.

SOPERYAH IP

#IPLaw, #TMLaw – Introduction to so-called non-traditional marks acceptable in Europe

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As you may already know, the trademark is a title deed, having the specificity of protecting a distinctive sign for products and / or services designated. As a title deed, it enters the company’s assets and significantly affects its valuation.

The trademark principle is to enable the consumer to associate your competitive advantage with your business. In broad outline, if a consumer sees a sign on a third-party’s product that makes him think it’s your product (because of the similarity to your trademark), the third-party has de facto infringed your trademark. In practice, it is recommended to file trademarks for both the company name, the logo, and each new product or service.

The European Union IP Office (EUIPO) has modified its rules to remove the requirement of graphic representation of the registered trademarks. This opened the door to the filing of what was later called non-traditional marks.

We will now give a classification of these marks. Non-traditional marks are those whose filing may be of interest but may generate specific issues that are critical to registration. Prior to the change of law, some of these categories had a high probability of rejection for reasons that may persist and that must be addressed in each case.

Traditional trademarks include
– word mark, and
– figurative mark with or without word elements;

Non-traditional trademarks include
– shape mark with or without verbal elements;
– position mark;
– pattern mark;
– color mark or combination of colors;
– sound mark;
– motion mark;
– multimedia brand; and
– hologram mark.

1 °) Word mark

In the terms used by the EUIPO, “a word mark consists exclusively of words or letters, numerals, other standard typographic characters or a combination thereof that can be typed“.

These are classically words forming a mark regardless of the style and colors of the of characters.

For example “SOTERYAH” is protected by a French and UK filings independently of the logo. This is probably the case with the name of your company.

2 °) Figurative mark

According to the official definition, “it is a trade mark where non-standard characters, stylisation or layout, or a graphic feature or a colour are used, including marks that consist exclusively of figurative elements” .

Company logos, product ranges or products fall into this category.

The figurative mark may include word elements and forms a separate category. It is for example the case of a mark combining a logo and a company name or product / service name. For a better protection, it is recommeded to give preference to a figurative mark and a word mark as much as possible (although this increases the costs).

3 °) Shape mark

In the terms used by the EUIPO, “a shape mark consists of, or extends to, a three-dimensional shape. It can include containers, packaging, the product itself or its appearance“.

It concerns the protection of the three-dimensional form of a product or its packaging, considering that this form is considered by the public as identifying the products of the applicant, and that the form is not guided by technical considerations.

The shape of the Mini-Cooper was the subject of many comments. The main examples concern the shapes of bottles and perfume flasks.

The shape mark may also include verbal elements. Again, for better protection, preference should be given, as much as possible, to separate filings, for example a figurative mark and a word mark (in spite of the costs).

4 °) Position mark

According to the official definition, “a position mark consists of the specific way in which the mark is placed or affixed to the product“.

The most related example concern the position of elements on shoe sides or soles. Distinctiveness and non-deceptiveness must, however, be verified on a case-by-case basis.

5 °) Pattern mark

In the terms used by the EUIPO, “a pattern mark consists exclusively of a set of elements which are repeated regularly“.

Many examples come to mind, including motifs of leather luggages or bags.

6 °) Color mark (single color)

According to the official definition, “a colour single mark is just that – a trade mark which consists exclusively of a single colour (without contours)“.

Examples could include colors of product or of their packaging, such as packagings of sodas or chocolates. Here again, particular attention must be given to the criteria of distinctiveness and non-deceptiveness namely.

The combination of colors is also possible and belongs to a separate category.

7 °) Sound mark

In the terms used by the EUIPO, “a sound mark consists exclusively of a sound or a combination of sounds“.

This category includes jingles or sound backgrounds, such as the famous ones of a transport company jingle or of a lion roar.

8 °) Motion mark

According to the official definition, “a trade mark consisting of, or extends to, a movement or a change in the position of the elements of a mark“.

Moving logos of computer programs or cinematographic productions may fall into this category.

9 °) Multimedia mark

According to EUIPO, “it consists, or extends to, the combination of images and sound“.

This category should be considered if it is not planned to separate the movement from the sound. In the opposite case, preference should be given to multiple filings, for example a movement mark and a sound mark, for better protection.

10 °) Hologram mark

According to the official definition, “a hologram mark consists of elements with holographic characteristics“.

They can be defined as 3D images appearing as “suspended in the air”. Typical examples are anti-fraud systems such as holograms of identity documents.

As a conclusion there are at least 10 ways to mark your territory, so on your marks!

SOPERYAH IP

#ProfitIP – Profitability of IP (ITC)

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As with the research tax credit (RTC) already presented in a previous post, the innovation tax credit is another tax tool that can offset the high costs that patent expenses can represent for a good return on the patent portfolio (combined with communication and marketing efforts).

Innovation Tax Credit (ITC)

Beneficiaries:
SMEs with less than 250 employees whose turnover is less than 50M € or whose balance sheet total is less than 43M €.

Eligible expenditure:
Costs related to the design or construction of prototype (s), including personnel costs and capital assets.
Costs of acquiring patents and models, and depreciation relating thereto.

Note: the maximum base is 400 k €.

Rate:
20%, a maximum of 80 k €.

For the record, the RTC rate is 30% up to 100 million euros 5% beyond.

It is therefore necessary to cumulate the ITC with other tools, in particular the RTC.

SOPERYAH IP

#IPLaw, #Brexit – Brexit and implementation of the unitary patent

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As you may remember, legislative changes that have been expected for decades are currently underway across the European Union, in order to establish what is now called the European patent with unitary effect (which we will abbreviate as “unitary patent”). .

The unitary patent is intended to implement a single title valid throughout the European Union and for which infringement disputes may be ruled ar an European scale, contrary to the “classic” European patent for which at the end of the procedure for grant, the right holder obtains several independent territorial rights, within the competence of eah national jurisdiction.

The prerequisites for the entry into force of the unitary patent and of the unified court are almost all achieved with the exception of the ratification of Germany where a constitutional problem has been raised.

In these circumstances, the impact of Brexit could have caused great upheaval, but the British government announced that Brexit will have no influence on the unitary patent as already presented in our posts. The agreement on the Unified Patent Court was ratified by the United Kingdom on April 26, 2018.

However, the unitary patent is intended to cover the European Union only, which raises the question of the validity of the unitary patent in the United Kingdom.

The most likely solution will be to get closer to what will happen for the EU trade mark after the Brexit, as already discussed in our brief concerning the agreement protocol of 19 March 2019 on the application of Brexit. As you may remember, the EU trade mark will become a comparable English mark and its validity will be linked to that of the EU trade mark.

It therefore appears that the likely outcome will be the following: the European patent with unitary effect will have effect in EU countries, and will be validated in a conventional manner in non-EU states that are party to the European Patent Convention such as already today Switzerland and Turkey, and later the United Kingdom.

To follow closely …

SOPERYAH IP

#ProfitIP – Profitability of IP (RTC)

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In view of the high costs that patent expenses can represent, in addition to marketing efforts, it is important to use tax tools in order to have a good profitability of the patent portfolio.

Research tax credit (RTC)

Beneficiaries:
Companies of any status subject to companies tax (IS) or income tax (IR).

Elligible expenses:
Expenses related directly or indirectly to R&D, including patent and watch fees, salaries, depreciation allowances of immobilisation and of patents,… and even expenses related to the creation of new collections in the textiles-clothing-and-leather field.

NB: Expenses of experimental agricutural stations and farms are doubled.

Rate:
30%, up to 100 million euros; 5% beyond.
(For DOMs 50%, up to 100 million euros, 5% beyond).

SOPERYAH IP

#IPlaw #TMlaw – Confirmation of the validity of the Louboutin red sole trademark.

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After the Paris High Court (TGI) in March 2017, the Paris Court of Appeal recognized, on May 17, 2018, the distinctive character of the Louboutin red sole.

In the shoe industry, many eagerly wait for a court decision establishing that a shoe sole color would not be protectable and could not be appropriate by a company.

For the record, schematically, an infringement of a trademark right can be characterized when consumers perceiving a sign believe that they are dealing with company A, when in fact it is an operation of a company B. But it is important that the sign in question be registered as a trademark in the relevant operating territory.

Applying this principle to the case of the red sole, it appears that the Court of Appeal rightfully recognized the distinctive character of this sole.

A similar decision was made in favor of Louboutin in the United States in 2012, according to which in essence, the trademark may be claimed unless the rest of the shoe has the same color.

A decision of the Court of Justice of the European Union is expected in another dispute …

To be followed up closely…

Eric TZEUTON

#ipl #brexit- Nouveaux éclaircissements dans le sort des droits de PI après “l’entrée en vigueur” du BREXIT

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La Commission Européenne et le Royaume-Uni ont publié le 19 mars dernier, une nouvelle version de l’accord de retrait relatif au BREXIT. L’accord fait mention d’une période transitoire se terminant le 31 décembre 2020 (art. 121).

https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf

 

Les sections en vert sont celles pour lesquelles il y aurait un accord formel.

L’article 50 et suivants concernent les droits de propriété intellectuelle UE (régis par Règlements de l’UE et enregistrés/délivrés notamment par l’Office PI de l’Union Européenne – EUIPO). Pour mémoire, le BREXIT n’aura aucun impact sur les brevets européens (délivrés par l’Office Européen des Brevets – OEB).

Les droits de PI UE enregistrés ou délivrés avant la fin de la période transitoire deviendront respectivement des droits de PI comparables anglais en vigueur, sans réexamen (Art 50 (1)). L’invalidation ou la révocation des premiers devra affecter les deuxièmes (Art 50 (3)).

Les frais à prévoir pour les déposants n’auraient pas encore fait l’objet d’un accord formel.

A suivre de près…

#ipl # brexit- New clarifications in the fate of IP rights after “entry into force” of BREXIT.

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On March 19, 2018, the European Commission and the United Kingdom published a new version of the withdrawal agreement for BREXIT.

The agreement refers to a transition period ending on December 31, 2020 (Art. 121).

https://ec.europa.eu/commission/sites/beta-political/files/draft_agreement_coloured.pdf

The sections in green are those for which there is a formal agreement.

Article 50 and following concern EU intellectual property rights (governed by EU Regulations and registered/granted interallia by the European Union IP Office – EUIPO). As a reminder, BREXIT will have no impact on European patents (granted by the European Patent Office – EPO).

EU IP rights registered or granted before the end of the transitional period will become respectively comparable UK IP rights in force, without re-examination (Art. 50 (1)).

The invalidation or revocation of the firsts will affect the seconds (Art. 50 (3)). The costs to foresee for the applicants would not have yet been subject to a formal agreement.

To be monitored closely…

SOPERYAH IP

#ipl #brexit – BREXIT et Brevets Européens

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Comme confirmé par le CIPA et l’OEB le 25 janvier dernier, le BREXIT n’aura aucun impact le brevet européen.

https://www.epo.org/news-issues/news/2018/20180125_fr.html