Frédéric Glaize of the MARQUES Designs Team provides an update on the latest controversy regarding the repair clause for certain car parts in France.

A law on “orientation of mobility” (dubbed “LOM” for Loi d’Orientation des Mobilités”), which was adopted by the French parliament in November 2019, contained an article introducing the notion of repair clause for certain car parts in the French IP Code. This clause appeared in article 110 of the LOM law – a totally involuntary echo to the numbering of Regulation 6/2002.

This repair clause provided an exception to the rights attached to a French design registration, in relation to “acts intended to restore their initial appearance to a motor vehicle or a trailer […] and which: (A) relate to parts relating to the glazing, optics and mirrors, (B) or are made by the supplier who manufactured the original part.”

For designs relating to parts of a motor vehicle or a trailer which would not fall under one of the aforementioned A or B categories, article 110 reduced the validity of their registrations from 25 years to 10 years.

In a decision issued on December 20, 2019, the French Constitutional Council (Conseil Constitutionnel) blocked article 110 (and some other unrelated provisions) of the LOM law. During the parliamentary debates, the repair clause had been introduced through a legislative amendment. The Council deemed that this amendment was a rider (un “cavalier législatif”), i.e. it was not related to any other part of the law it was introduced in.

For this reason article 110 is one of the articles considered to have been adopted in an unconstitutional manner and therefore is unconstitutional.

Article 110 of the LOM law was the latest and most advanced of many attempts to introduce a repair clause in French design law. The possibility of introducing a repair clause was raised and each time rejected during discussions on various projects or legislative proposals in 2008, in 2011, and twice in 2014.

Frédéric Glaize is a French and European trade mark and design attorney with Plasseraud in Paris and a member of the MARQUES Designs Team