Glossary
French: prescription
Prescription is the rule that legal situations should no longer be open to challenge once a certain time has passed — what US lawyers know as a statute of limitations. In French trademark matters, the limitation period is five years.
Article L.716-4-2 of the Intellectual Property Code provides: “The infringement action is time-barred five years from the day on which the right holder knew, or should have known, the last fact enabling him to exercise it.”
The prevailing view treats trademark infringement as a continuing wrong (infraction continue) — it renews itself every day the infringing use continues. The limitation period therefore starts running only when the infringement has ceased. In practice, an ongoing infringement is never time-barred as such; prescription mainly limits how far back the damages claim can reach and bars actions over long-ended conduct.
The Lanham Act contains no federal statute of limitations; US courts borrow analogous state limitation periods and, above all, apply laches — a flexible, equity-driven defense. French law takes the opposite approach: a fixed five-year statutory period with a defined trigger, leaving far less room for judicial discretion. Note also the distinct five-year rule of acquiescence (forclusion par tolérance), which bars attacks on a registered mark knowingly tolerated for five years — a different mechanism often confused with prescription.
See also: trademark infringement, trademark infringement in France.