Trademark Invalidity in France After the Cour De Cassation Ruling (28 Jan 2026): What Brand Owners and IP Litigators Must Know

On 28 January 2026 the Cour de cassation delivered a landmark ruling (pourvoi n° 24-14.760) that reshaped the landscape of trademark invalidity in France, confirming that nullity actions brought under the post-PACTE regime are imprescriptible, meaning they face no ordinary limitation period. The decision directly affects every French national trademark that was in force when the PACTE reform took effect, exposing potentially vulnerable registrations to challenge at any time. For general counsel, in-house IP teams and brand owners, the ruling demands an immediate portfolio audit, revised enforcement strategies and careful litigation planning. This article provides the authoritative analysis, tactical playbooks and step-by-step checklists that rights-holders and litigators need to act now.

Key Takeaways

• No time bar. The Cour de cassation confirmed that trademark nullity actions under the post-PACTE Code de la propriété intellectuelle (CPI) are imprescriptible, there is no statute of limitations for trademark invalidity in France (subject only to res judicata).
• Retroactive exposure. Marks in force on or after the PACTE cut-off date are exposed to challenge, regardless of when they were originally registered.
• Two procedural routes. Claimants can file an administrative invalidity request with INPI or bring judicial proceedings before the civil courts, each route offers distinct advantages in speed, cost and remedies.
• Immediate action required. Rights-holders should audit their portfolios, preserve evidence of use and distinctiveness, and triage high-risk marks for defensive strategies or settlement.

Legal Framework and Background: PACTE Trademark Law and the CPI

The PACTE Reform and the CPI Changes

France’s trademark regime underwent its most significant overhaul in decades when the Loi PACTE (Loi n° 2019-486 du 22 mai 2019 relative à la croissance et la transformation des entreprises) was enacted, with its trademark provisions taking effect on 11 December 2019. The reform transposed the EU Trademark Directive (2015/2436) into French law, substantially rewriting Book VII of the Code de la propriété intellectuelle (CPI). Among the most consequential changes was the creation of a new administrative invalidity and revocation procedure before INPI, France’s National Institute of Industrial Property, which, for the first time, allowed the industrial property office to rule on the validity of registered marks without requiring parties to initiate full court proceedings.

The PACTE reform also modified the provisions governing prescription of trademark actions. Under the pre-PACTE regime, invalidity claims were generally subject to the five-year limitation period set out in Article 2224 of the Civil Code, and the former Article L. 714-3 of the CPI imposed specific time constraints on certain relative-grounds challenges. The post-PACTE CPI, however, introduced new articles, notably Article L. 716-2-6, that reorganised the rules on nullity grounds and, critically, did not reproduce an explicit limitation period for invalidity actions based on absolute grounds or certain relative grounds. This legislative silence on prescription became the central issue in the 28 January 2026 Cour de cassation decision.

The reform also expanded the catalogue of absolute grounds for nullity (including bad faith, descriptiveness and generic character) and refined the relative grounds (earlier rights, well-known marks under Article 6bis of the Paris Convention). Understanding the full breadth of these grounds is essential, because the imprescriptibility ruling means that any mark suffering from an absolute-ground defect is now permanently vulnerable to challenge under PACTE trademark law.

Distinction Between Nullity (Nullité) and Revocation (Déchéance)

French trademark law draws a fundamental distinction between nullité (nullity or invalidity) and déchéance (revocation or cancellation for non-use). Nullity addresses defects that existed at the time of registration, the mark should never have been registered because it lacked distinctiveness, was descriptive, was filed in bad faith or conflicted with earlier rights. Revocation, by contrast, addresses post-registration failures: the mark has not been genuinely used for a continuous five-year period, has become generic through the proprietor’s inaction, or has become deceptive. This distinction matters procedurally because different grounds, different evidence requirements and (now) different limitation rules apply.

The Cour de cassation’s 28 January 2026 ruling addressed nullity, not revocation, a critical nuance that practitioners must keep firmly in view when assessing exposure and formulating claims.

Both nullity and revocation can now be pursued either through INPI’s administrative procedure or before the Tribunal judiciaire (formerly Tribunal de grande instance). For rights-holders unfamiliar with the dual-track system created by the PACTE reform, a useful starting point is our guide to protecting intellectual property across borders, which outlines how national and supranational regimes interact.

Analysis of the Cour de Cassation 2026 Decision on Trademark Invalidity in France

Case Facts and Procedural Posture

The dispute originated between two commercial parties, one of whom sought to invalidate the other’s French national trademark on absolute grounds, specifically, that the mark was descriptive of the goods covered and therefore lacked inherent distinctiveness at the time of filing. The claimant brought the nullity action after the PACTE reform had come into force, invoking the new CPI provisions. The defendant argued that the claim was time-barred under the general five-year prescription of Article 2224 of the Civil Code, contending that the claimant had been aware of the mark for more than five years before initiating proceedings.

The Court of Appeal ruled in favour of the defendant, applying the general prescription period. The claimant appealed to the Cour de cassation, raising a single moyen (ground of appeal): that the post-PACTE CPI contains no limitation period for trademark nullity actions and that the lower court erred in importing one from the Civil Code.

Court’s Reasoning and Holding

The Cour de cassation’s Commercial Chamber quashed the appellate decision. Its reasoning centred on the textual structure of the reformed CPI. The court observed that the legislature, when enacting the PACTE trademark provisions, deliberately organised the rules on nullity in a self-contained framework. Article L. 716-2-6 CPI and the surrounding provisions set out the grounds and procedures for invalidity actions without incorporating or cross-referencing the general prescription rules of the Civil Code. The court held that this legislative architecture reflects a deliberate choice: where the legislature intended a limitation period, it said so expressly (as in certain revocation scenarios); where it was silent, no limitation period applies.

Holding (Cour de cassation, 28 January 2026, n° 24-14.760): Trademark invalidity actions brought under the post-PACTE provisions of the Code de la propriété intellectuelle are imprescriptible, the general five-year limitation period of Article 2224 of the Civil Code does not apply to claims for trademark nullity governed by the reformed CPI.

The court further noted that this interpretation aligns with the objectives of the EU Trademark Directive, which requires member states to provide effective mechanisms for eliminating unjustified registrations from the register. An artificial time bar on invalidity claims would undermine register integrity.

Scope of the Ruling: Which Actions and Titles Are Impacted

The decision’s operative scope extends to all invalidity actions governed by the post-PACTE CPI, that is, any nullity claim filed under the provisions that came into force on 11 December 2019. The ruling does not disturb the general principle of res judicata: where a court has definitively rejected a specific invalidity claim between the same parties on the same grounds, that decision remains binding. Nor does the ruling affect revocation (déchéance) claims, which remain governed by their own procedural and temporal rules.

Before and after the ruling, the legal landscape shifted as follows:

• Pre-ruling position: Many practitioners and lower courts assumed that the general five-year prescription of Article 2224 of the Civil Code applied to trademark nullity actions by default, creating an effective time bar on stale claims.
• Post-ruling position: No limitation period applies to trademark nullity actions under the post-PACTE CPI, except where res judicata bars a repeat claim between the same parties on identical grounds.
• Practical effect: Industry observers expect a wave of invalidity challenges against marks that proprietors previously considered safe due to the passage of time, particularly marks with descriptive elements or marks registered in potential bad faith.

Retroactivity and Practical Scope of the Imprescriptibility Trademark Ruling

Which Marks Are Exposed?

The critical temporal question is: which marks fall under the post-PACTE regime and are therefore exposed to imprescriptible invalidity actions? The PACTE reform’s trademark provisions entered into force on 11 December 2019. Any invalidity action filed after that date, regardless of when the target mark was originally registered, is governed by the new CPI framework. This means a mark registered in 2005 can be challenged in 2026 (or 2036, or later) without any limitation defence, provided the action is brought under the current statutory grounds.

Secondary commentary from leading IP firms and legal press has noted that this temporal scope is broader than many rights-holders initially anticipated. The ruling does not merely apply to marks filed after the PACTE reform; it applies to any invalidity proceedings initiated under the reformed code, which captures legacy marks still on the register. The likely practical effect is that every French national trademark currently in force is, in principle, vulnerable to a nullity challenge with no time bar.

Interaction With Res Judicata and Prior Definitive Decisions

The Cour de cassation’s reasoning preserves one critical safety valve: res judicata. Where a final court decision has already rejected a nullity claim between the same parties, on the same mark, relying on the same grounds and facts, the losing party cannot simply re-file the same action. However, a new claimant, or the same claimant invoking different grounds or new evidence, would not be barred. This distinction is vital for portfolio defence planning: a prior victory on one nullity ground does not immunise a mark against future challenges on different grounds.

Territorial and Procedural Limits: National Marks vs EUTMs

The ruling addresses French national law exclusively. European Union trademarks (EUTMs) registered through EUIPO are governed by the EU Trademark Regulation (2017/1001) and its own limitation and invalidity rules, which operate independently of French domestic law. However, for businesses holding parallel French and EU registrations, the decision creates an asymmetry: a mark that survives an EUTM invalidity challenge at EUIPO could still be invalidated as a French national mark before INPI or the French courts, and vice versa. Cross-border counsel should review dual-registration portfolios for this gap. For a broader perspective on managing IP assets across jurisdictions, see our international intellectual property guide.

Practical Implications of Trademark Invalidity in France for Brand Owners

Immediate Audit: What to Look for in Your Portfolio

The first and most urgent step for any brand owner with French national trademarks is a comprehensive portfolio audit. The imprescriptibility ruling means that marks with inherent vulnerabilities, descriptive terms, generic words, marks filed in questionable circumstances, can now be challenged indefinitely. An effective audit should flag the following risk categories:

Evidence Preservation: Documents and Data to Secure Now

If a trademark faces an invalidity challenge, the outcome often turns on the quality and completeness of the evidence the proprietor can muster. Given that a challenge can now arrive at any time without a limitation deadline, ongoing evidence preservation is no longer merely good practice, it is essential. Rights-holders should preserve the following as a matter of course:

• Use evidence. Dated samples of the mark as used in commerce, packaging, advertising, invoices, catalogues, website screenshots with timestamps, and social media archives.
• Sales and revenue data. Turnover figures attributable to the branded goods or services, broken down by territory and class.
• Consumer recognition surveys. If acquired distinctiveness is likely to be contested, periodic consumer surveys (conducted by independent research firms) provide powerful evidence.
• Prosecution history. Copies of the original application, any office actions, examiner correspondence, and all amendments made during prosecution.
• Assignment and licence records. Complete chains of title, licence agreements, and any coexistence agreements with third parties.
• Correspondence with competitors or challengers. Letters, settlement negotiations and any prior disputes, these may be relevant to res judicata defences or bad-faith counterarguments.

Risk Triage and Cost/Benefit Analysis

Not every mark requires the same level of defensive investment. A structured risk triage should classify marks into three tiers. High-risk marks, those with descriptive elements, known prior-rights conflicts, or a filing history that could suggest bad faith, demand immediate evidence assembly and, in some cases, proactive re-filing under a narrower specification. Medium-risk marks warrant a defensive evidence file and periodic review. Low-risk marks (highly distinctive, strong use records, clean prosecution history) can be monitored with lighter touch.

Cost considerations are significant. An INPI administrative invalidity proceeding typically costs less than full court litigation and can be resolved more quickly. However, judicial proceedings before the Tribunal judiciaire offer broader remedies, including damages and injunctive relief. The likely practical effect of the ruling is that claimants with limited budgets, including competitors and trade associations, will increasingly use the INPI route, making administrative invalidity filings a more common feature of trademark enforcement in France.

Negotiation and Settlement Options

Before litigation escalates, parties should explore negotiated solutions. Coexistence agreements can define territorial or product-class boundaries between overlapping marks. Licensing arrangements may allow a challenged mark to continue in use under terms that satisfy the challenger’s concerns. In some instances, a voluntary limitation of the goods-and-services specification, removing the classes where a mark is most vulnerable, can pre-empt an invalidity attack. Finally, a strategic re-filing of a narrower or stylised version of the mark can offer a fallback position if the original registration is lost.

Bringing or Defending a Trademark Nullity Action: Procedural Playbook

Where to File: INPI Administrative Invalidity vs Civil Court

Since the PACTE reform, claimants seeking to bring a trademark invalidity action in France have two distinct routes. Understanding the differences is essential for tactical decision-making:

The INPI invalidity procedure, governed by the reformed CPI and detailed on the INPI website, involves filing a reasoned request identifying the mark, the grounds for nullity, and the supporting evidence. INPI notifies the proprietor, who has a set period to respond. The procedure is primarily written, though oral hearings may be scheduled in complex cases. For those unfamiliar with INPI’s administrative processes, the Institute publishes detailed procedural guides on its official portal.

Drafting the Claim or Defence: Evidentiary Priorities

For claimants seeking to bring a trademark invalidity action, the evidentiary focus depends on whether the challenge is based on absolute or relative grounds. Absolute-ground challenges (descriptiveness, generic character, bad faith, deceptiveness) require evidence about the mark itself and the relevant market, dictionaries, trade publications, consumer perception evidence, and filing-history documents. Relative-ground challenges (prior rights) require proof of the earlier right, its scope, and the likelihood of confusion or dilution.

For defendants, the most potent defences typically include:

• Acquired distinctiveness. Evidence that the mark, even if originally descriptive, has become distinctive through extensive and continuous use.
• Res judicata. Proof that the identical claim, between the same parties, on the same grounds, has already been definitively adjudicated.
• Challenge to standing or grounds. Contesting whether the claimant has a legitimate interest or whether the invoked grounds are properly characterised under the applicable CPI provisions.

Tactical Timeline: From Pre-Litigation to Appeal

A well-prepared invalidity strategy follows a phased timeline. In the pre-litigation phase, claimants should conduct a thorough prior-art and vulnerability search, compile evidence, and consider sending a cease-and-desist or settlement overture to test the proprietor’s appetite for negotiation. Filing follows, either at INPI or before the competent Tribunal judiciaire. In judicial proceedings, provisional measures (mesures provisoires) can be sought if urgency is demonstrated. First-instance judgments are subject to appeal, and cassation appeals (on points of law only) remain available as the final recourse.

Defence Checklist: Curing, Conversion and Coexistence Agreements

Defendants facing an invalidity challenge should immediately assess whether the mark can be “cured” or its position strengthened. While it is not possible to retroactively fix an inherent registration defect, a proprietor can gather and present evidence of acquired distinctiveness, negotiate a coexistence agreement that narrows the scope of conflict, or proactively re-file a modified version of the mark that avoids the ground of invalidity. In some cases, converting a challenged word mark into a figurative or stylised mark, with genuine distinctiveness, can preserve commercial value even if the original registration falls. These strategies require early and coordinated legal and commercial planning.

Comparative Snapshot: Statute of Limitations for Trademark Invalidity, France vs Germany

For counsel managing cross-border portfolios, understanding how the French position compares with neighbouring jurisdictions is essential. The following table provides a high-level comparison with Germany, one of France’s most important counterpart jurisdictions for trademark matters.

The divergence in limitation rules creates a strategic consideration for businesses holding parallel French and German registrations. A mark that is safely beyond any German time bar may remain indefinitely vulnerable in France, a mismatch that cross-border portfolio managers must factor into enforcement and defence planning. For further discussion of cross-jurisdictional IP strategy, see our guide to protecting intellectual property across borders.

Conclusion: Trademark Invalidity in France Demands Immediate Action

The Cour de cassation’s 28 January 2026 decision has permanently altered the risk calculus for every holder of a French national trademark. The confirmation that trademark invalidity in France is imprescriptible under the post-PACTE regime means that no mark, however long it has been on the register, is immune from challenge on nullity grounds. The ruling rewards diligent brand management and penalises complacency.

Immediate Actions for General Counsel: 10-Point Checklist

1. Commission a full portfolio audit of all French national trademarks, prioritising marks with descriptive elements or known prior-rights conflicts.
2. Identify and preserve all evidence of use, acquired distinctiveness and commercial value for every active mark.
3. Classify marks into high, medium and low risk tiers using the triage matrix above.
4. Notify professional indemnity and IP insurers of the changed legal landscape and potential claims exposure.
5. Review all pending and contemplated INPI requests and court proceedings in light of the ruling.
6. Assess whether any high-risk marks should be proactively re-filed in narrower or stylised form.
7. Open settlement or coexistence discussions with known potential challengers before they file.
8. Update internal trademark policies and filing guidelines to reflect the imprescriptibility standard.
9. Coordinate with EU-level strategy, review parallel EUTMs for consistency and assess cross-border exposure.
10. Engage specialist IP litigation counsel for marks identified as high risk. For immediate guidance, contact our team or browse the Global Law Experts lawyer directory to find an IP litigator in France.

Downloadable Resources and Next Steps

To assist rights-holders and litigators in applying the principles discussed in this article, the following resources are recommended:

• Portfolio Audit Checklist (PDF). A downloadable triage template covering risk factors, red flags and immediate actions for every French national trademark in your portfolio.
• INPI Invalidity Request Checklist. A step-by-step guide to preparing and filing an administrative invalidity request with INPI, including evidence requirements and procedural deadlines.
• Evidence Preservation Matrix. A document-management template for ongoing collection and dating of use evidence, consumer surveys, prosecution correspondence and commercial records.

For further reading on managing international IP portfolios, consult our international intellectual property guide and our analysis of protecting intellectual property across borders. To connect with a specialist IP litigator, visit the Global Law Experts lawyer directory or contact us directly to request a portfolio audit.

This article provides general information on trademark invalidity in France and does not constitute legal advice. Readers should consult qualified IP counsel for advice tailored to their specific circumstances. Last reviewed: 17 May 2026.

Sources

1. Cour de cassation, Decision of 28 January 2026 (pourvoi n° 24-14.760)
2. Legifrance, Loi PACTE and Code de la propriété intellectuelle (consolidated texts)
3. INPI, French National Institute of Industrial Property (trademarks, invalidity and revocation procedures)
4. Bardehle Pagenberg, Firm alert: France, No limitation period for trademark invalidity actions after the PACTE law
5. Cabinet Dreyfus, Practitioner commentary on trademark invalidity actions (2025–2026)