Written commercial agreement

Significant imbalance

Sudden termination of established relationships

Competition investigation – French law

Civil competition action

French competition law

Competition investigation – European law

European competition law

Vertical restraints

Distribution law

Liability for defective products

Consumer law

Prohibition of measures having equivalent effect

European business law

Corruption

Compliance

Economic law

Shareholders' agreements

Removal of company directors

Abuse of voting rights

Companies

Action for infringement (counterfeiting)

Rights conferred by the trademark

Patentability

Industrial property

Commercial rent review

Renewal of the commercial lease

Despecialization (change of use)

Commercial leases

Reform of contract law

Reform of the law of special contracts

Preliminary sales agreement

Obligation to deliver goods in conformity

Classification of the contract for services (contrat d'entreprise)

Effects of the agency agreement with respect to third parties

Business contracts

Ongoing contracts

Recovery claims

Court-approved transfer plan

Bankruptcy proceedings

Personal data breaches

White collar crime

Commercial law

500 Questions - Business Law

In addition to the similarity, the disputed sign must be used for products or services identical or similar to those for which the trademark is registered (Art. L. 713-2, 2° IP Code). The assessment of the similarity between the products and services requires consideration of all relevant factors characterizing their relationships , including their nature, purpose, use, as well as their competitiv …

Can the trademark holder prohibit the use of similar signs for different products?

The owner holds a proprietary right in their trademark, which arises from the registration of the mark. This registration confers upon the proprietor a real right—that is, a subjective right pertaining to the mark in relation to the goods or services it designates (Art. L. 713-1, para. 1, IP Code).

This absolute right allows the registered owner to take action throughout French territory against any person who infringes upon it , whether in good or bad faith , particularly against competitors who might want to exploit the position and reputation of the brand by selling products improperly bearing the mark , even if it is only marginally distinctive .

However, the proprietor of the trademark may prohibit the use of a mark identical or similar to their trademark only if such use is made “as a trademark” .

Advice: The presence of the trademark and the sale of products in a store dedicated to that trademark do not deprive it of its function as an indicator of origin.

The trademark grants its holder a proprietary right over the registered sign that is enforceable against all on the national territory.

CA Paris, 7 June 1990, LawLex200200001867JBJ

The ownership of a duly registered trademark is absolute, extends over the entire French territory, and grants its holder an action against any person infringing upon it.

Cass. com., 29 October 1975, LawLex202200002503JBJ

The ownership of a duly registered trademark is absolute throughout the entire French territory and grants the holder the right to take action against anyone who infringes upon it, whether in good or bad faith.

Cass. com., 26 June 1973, LawLex202200000107JBJ

The specific subject-matter of trade mark law is, inter alia, to  guarantee that the owner of the trade mark has the exclusive right to use that trade mark, for the purpose of putting products into  circulation for the first time, and is therefore intended to protect him  against competitors wishing to take advantage of the status and  reputation of the trade mark by selling products illegally bearing that  trade mark, so that he might prevent the marketing of either identically  or differently marked products, where they may lead to confusion with a  product bearing the trade mark.

ECJ, Case C-9/93 IHT Internationale Heiztechnik GmbH and Uwe Danzinger,  Judgment of  22 June 1994, LawLex200500005054JBJ.

A mark, even if only weakly distinctive, benefits from sovereign protection.

Cass. com., 20 March 1985, LawLex202200001218JBJ

As the name Moulin Rouge is used solely for descriptive purposes of a tourist site, in the same way as other iconic monuments of the capital, without affecting the guarantee of origin of the products on which it is affixed, its use, which occurs in the course of business, does not constitute use as a trademark due to the lack of fulfilling the distinctive function conferred on the latter.

Cass. com., 31 March 2015, LawLex201500000432JBJ

When designs and a denomination are not used as a distinctive sign as a trademark to designate one of the products covered in the registration, but to represent the work offered for sale, with which the trademark is confused, and to inform the potential buyer of its nature, the reproduction in a catalog concerns the object offered for sale, and not a use as a trademark to designate the public auction sales service.

CA Paris, 14 March 2007, LawLex202200000117JBJ

What is the scope of the right conferred by the trademark?

The use in the course of trade (usage dans la vie des affaires) to which the trademark holder may object (Art. L. 713-2 and L. 713-3 IP Code) is defined as that carried out in the context of a commercial activity aimed at an economic advantage . An unauthorized use in the course of trade by the holder constitutes the promotional use of an expression presenting a service as “the alternative” to a trademark, insofar as this expression identically reproduces the said trademark to promote its own services . The use of a trademark in the course of trade may be prohibited even if it is done in good faith .

The following are not considered to be in the course of trade:

use of a sign in the private domain , or for purely polemical purposes ;

use of a trademark aimed at providing employees with information about their rights, free of charge and without commercial advertising ;

use of a sign for satirical purposes of caricature .

The use of the sign refers to its use by a third party for their own account. The following do constitute  not use of the trademark:

the internet referencing service provider that hosts the sign and organizes the display of advertisements from it without using it for its own commercial communication ;

the service provider who, on behalf of a third party, fills packaging on which this third party has the trademark affixed .

The use of the sign identical to the trademark occurs in the course of trade, as long as it is the context of commercial activity with a view to economic advantage and not as a private matter.

ECJ, Case C-206/01 Arsenal Football Club plc v Reed, Judgment of 12 November 2002, LawLex200900001111JBJ.

The use of the expression “The alternative to SOS Médecins,” which identically reproduces the trademark SOS MEDECINS of the eponymous company, carried out to promote the services of the company in question, amounts to an unauthorized use in the course of trade by the trademark holder.

CA Paris, 15 March 2024, LawLex202400002566JBJ.

An undertaking cannot argue its good faith, which is irrelevant in matters of counterfeiting, especially since, as a professional in the clothing industry, it could not have been unaware of the existence of the prior trademark registered more than 25 years earlier.

CA Paris, 8 November 2000, LawLex200300002506JBJ

Good faith being inoperative in matters of counterfeiting, it matters little that it was at a client's request that a company affixed the labels alleged to be counterfeit.

CA Douai, 26 April 1999, LawLex200200000957JBJ

The counterfeiter of a registered trademark cannot rely on an implied authorization to use the trademark from a mere user of the same trademark, who claims rights prior to those of the registrant, to obstruct the action initiated by the registrant.

Cass. com., 4 July 1966, LawLex202200001867JBJ

The selection by an advertiser of a sign identical to another's trademark as a keyword intended to trigger the display of their advertisement constitutes a use of this sign in the context of a commercial activity aimed at obtaining an economic advantage, that is, in business life and not in the private domain.

CA Paris, 2 February 2011, LawLex201100000349JBJ

In the absence of disparagement and risk of confusion, the signs “jeboycottedanone.net” and “jeboycottedanone.com,” which reproduce the trademarks of others without the intent to promote the marketing of competing products or services, fall under purely polemical use unrelated to business life and are part of a strict exercise of freedom of expression.

CA Paris, 30 April 2003, LawLex200300002734JBJ

The union newsletter with regular publication, which solely aims to provide the concerned employees with information regarding their rights, is distributed free of charge and contains no commercial advertising or any call to participate in economic operations or to contribute to their financing, does not seek to obtain any direct or indirect economic advantage and is, therefore, unrelated to business life.

Cass. com., 10 May 2011, No 10-18.173, LawLex202200000214JBJ

Comments that cast doubt on a particular brand’s vehicles, which are made as part of a satirical program broadcast by a media undertaking and are inseparable from the caricature of the undertaking’s director, fall under the protection of free speech provided they do not create any risk of confusion between reality and the satirical work.

Cass. Ass. plén., 12 July 2000, LawLex200200000750JBJ

By marketing t-shirts featuring some of the essential visual elements of a well-known trademark along with a derisive comment, a company used caricature or parody not solely to mock or amuse, but also with the primary commercial intent of exploiting the trademark to sell its own product.

CA Paris, 9 September 1998, LawLex200200001095JBJ

The provider of an Internet referencing service who stores, as a keyword, a sign identical to a trademark, and organizes the display of advertisements from it, does not make use of the sign in the course of trade.

Cass. com., 20 January 2015, LawLex201500000092JBJ

A service provider who merely fills, on order and according to the instructions of a third party, cans already bearing signs similar to trademarks and thus simply performs a technical part of the manufacturing process of the final product, without having any interest in the external presentation of said cans and particularly in the signs on them, does not himself “use” those signs within the meaning of Article 5 of the Trademark Directive.

ECJ, Case C-119/10 Frisdranken Industrie Winters BV, Judgment of 15 December 2011, LawLex201200000627JBJ

What is meant by use in the course of trade reserved for the trademark owner?

The proprietor of a trademark may oppose the use, without their consent, in the course of trade, of a mark identical to their trademark and used in connection with goods or services identical to those for which the trademark is registered (Art. L. 713-2, 1° of the IP Code). There is a presumption of infringement of the trademark’s functions in the case of identical signs .

A sign is considered identical if there are no differences or only insignificant differences . A sign is not considered identical if the contested mark contains differences that are not insignificant to the average consumer , such as modifications, omissions, or additions .

The examination of the similarity of the products or services is conducted with regard to those designated in the registration of the earlier trademark , independently of the conditions under which the products bearing the disputed sign are sold , their quality, price, or intended use .

The trademark proprietor is entitled to prohibit the use, without their consent, of an identical sign by a third party, when such use occurs in the course of trade, is made for goods or services identical to those for which the trademark is registered, and infringes or is likely to infringe the functions of the trademark.

CA Paris, 2 February 2011, LawLex201100000349JBJ.

The two names, which appear in uppercase black and straight letters, and contain the four letters of the word “ZARA” in the same order, are identical. The mere presence of a black frame surrounding the second sign constitutes an insignificant difference that may go unnoticed by an average consumer.

CA Paris, 16 February 2007, LawLex202200002198JBJ.

The courts cannot dismiss the claim of infringement by reproduction of the trademark “Interplus” without determining whether, considering the incriminated sign as a whole, the noted difference in the color of the “Plus” element was not insignificant in the eyes of an average consumer of the products concerned.

Cass. com., 2 February 2010, LawLex201000000145JBJ.

The reproduction of a trademark means an identical reproduction without addition.

Cass. com., 26 November 2003, LawLex202200000417JBJ.

A court of appeal cannot, to dismiss an action for infringement, find that the products designated in the registration of the initial trademarks are “clothing,” and not certain varieties of such products, from which it follows that the sign used by an undertaking to market clothing is used to designate identical products, as the judge cannot merely find the simple belonging of competing products or services to the same registration class.

Cass. com., 3 April 2007, LawLex202100005994JBJ.

The use, in an identical form, of a validly registered trademark to designate an article illustrated with photographs - even though the registration application covers photographs, newspapers, periodicals, and all printed matter - constitutes trademark infringement, even if that article was not sold separately, provided that its title reproduces the trademark registered for identical goods.

Cass. com., 14 January 2003, LawLex200300000615JBJ.

Insofar as the sign is used to market and designate identical goods, the fact that the infringing goods are low-quality products bearing whimsical markings is irrelevant.

Can the use of an identical sign be prohibited by the trademark proprietor?

The existence of a risk of confusion or association in the public's mind between identical or similar signs and that of the holder of the earlier trademark is likely to infringe upon it if the use involves identical or similar products or services (Art. L. 713-2, 2° Intellectual Property Code). If the absence of any similarity between the signs  or the products or services  excludes trademark infringement, a low degree of similarity between the trademarks can be compensated by a high degree of similarity or complementarity between the products or services  and vice versa .

The risk of confusion requires demonstrating that the use of the sign infringes or is likely to infringe the essential function of the trademark . There is a risk of confusion when the relevant public is led to:

assign a common origin to the products and services offered ;

consider that they come from undertakings likely to be economically linked ;

believe that the contested sign constitutes the variation , the adaptation of the earlier trademark  or a diversification of the creations .

The assessment of the likelihood of confusion, which must be comprehensive  and cannot be limited to noting similarities or differences between the signs , or competing commercial links , is made by reference to the sign at issue with each opposing trademark  and the goods and services concerned .

The assessment of the likelihood of confusion is made with reference to a target public, understood as the consumer of the products or services who is normally informed and reasonably attentive and knowledgeable, meaning of average attention , who does not have both signs simultaneously in view . The likelihood of confusion is established even if it exists only for a part of the relevant public .

The risk of association requires establishing that, without confusing them, the average consumer, who is reasonably well-informed and reasonably observant and circumspect, makes a connection between the signs , this connection being assessed globally .

When the similarity of the trademarks in question is excluded, following a comprehensive assessment of the likelihood of confusion, the trial court does not need to determine whether the products or services are similar.

Cass. crim., 4 December 2012, LawLex202200000415JBJ.

When, at the time of filing its trademarks, the products for which the holder has claimed protection are not identical or similar to those designated in the complainant's trademark filing, trademark infringement may be dismissed.

Cass. com., 21 March 1995, LawLex200200001471JBJ.

The assessment of infringement involves determining whether, in view of the degrees of similarity between the signs and between the designated products and/or services, there is a likelihood of confusion, including a risk of association in the mind of the relevant public, which must be assessed by taking into account all the pertinent factors of the case at hand.

CA Paris, 22 February 2022, LawLex202200002555JBJ.

A court of appeal cannot uphold the reproduction of a complex trademark when it has found that the sign is not identical to the trademark, as it fails to reproduce without modification or addition all the elements constituting it, and without determining whether, considered as a whole, it contains differences so insignificant that they may go unnoticed by an average consumer.

Cass. com., 26 November 2003, LawLex202200000206JBJ.

The fact that commercial links are displayed at the same time as the brand introduced as a search criterion is not, by itself, likely to mislead the internet user into believing that the promoted products or services come from the trademark holder or an undertaking economically linked to it.

Insofar as counterfeiting by imitation presupposes the existence of a similarity between the signs, an identity or similarity between the products, as well as a risk of confusion for the concerned consumer, its assessment, when several trademarks are invoked, involves comparing the incriminated sign with, respectively, each opposed trademark, with the signs in question being considered each as a whole.

Cass. com., 18 October 2016, LawLex202200000249JBJ.

A court of appeal cannot, to conclude that there is no risk of confusion in the public's mind between the products, base its decision on the use of the trademarks for their marketing and the comparison of the packaging methods of these products.

Cass. com., 23 June 2015, LawLex202200000429JBJ.

The risk of confusion is assessed based on the perception of the average consumer of the category of products in question, who is normally informed and reasonably attentive and knowledgeable, so it cannot be dismissed solely on the grounds that the relevant consumer is a connoisseur of fine wines.

Cass. com., 6 September 2016, LawLex202200000427JBJ.

The risk of confusion between two semi-figurative trademarks cannot be dismissed based solely on the differences noted between the two signs, without examining whether the existing similarities create a risk of confusion for an average-attention consumer who does not have both signs simultaneously in view.

Cass. com., 25 March 2014, LawLex202200000366JBJ.

When there is a risk of confusion between the signs for consumers of pharmaceutical products dispensed without a medical prescription, it is not necessary to examine whether such a risk exists for pharmaceutical products dispensed with a medical prescription and for healthcare professionals, while the end consumers are part of the relevant public.

Cass. com., 27 April 2011, LawLex202200000428JBJ.

The protection granted to trademarks with a reputation is not subject to the finding of a risk of association or confusion; it is sufficient that the degree of similarity between such a trademark and the sign results in the relevant public establishing a link between the sign and the trademark.

Cass. com., 12 April 2016, LawLex202200002232JBJ.

When the conflicting signs show a certain similarity, even if slight, a global assessment of the likelihood of confusion must be conducted, taking into account the reputation of the earlier trademark.

Cass. com., 31 January 2018, LawLex202100006236JBJ.

The existence of a link or association with the well-known trademark must be assessed globally, taking into account all relevant factors such as the degree of similarity between the conflicting signs, the nature of the products or services involved, including the degree of proximity or dissimilarity of these products or services as well as the relevant public, the intensity of the reputation of the earlier trademark, the degree of distinctiveness, intrinsic or acquired through use, of the earlier trademark, or the existence of a risk of confusion in the public's mind.

CA Paris, 11 February 2022, LawLex202200002850JBJ.

A court of appeal cannot dismiss the risk of confusion between trademarks without investigating whether the low similarity between the signs is not offset by the similarity or complementarity existing between the designated services.

Cass. com., 25 January 2017, LawLex201700000227JBJ.

Since the overall assessment of the likelihood of confusion involves a certain interdependence between the factors taken into account, notably the similarity of the trademarks and that of the goods or services covered, a low degree of similarity between the trademarks may be offset by a high degree of similarity between the goods or services covered, and vice versa.

Cass. com., 1 June 2010, LawLex202100005993JBJ.

The holder of a trademark can only prohibit a third party from using a sign similar to their trademark if such use occurs in the course of trade, without the trademark holder's consent, for products or services identical or similar to those for which the trademark was registered, and provided that due to the existence of a likelihood of confusion in the public's mind, it infringes or is likely to infringe the essential function of the trademark, which is to guarantee to consumers the origin of the product or service.

Cass. com., 13 October 2021, No 19-20.504, LawLex202100005622JBJ.

The risk of confusion between two similar signs covering identical or similar products and services is established when the average consumer is likely to attribute a common origin to the products and services offered.

CA Paris, 26 May 2017, No 16-06791, LawLex201700000932JBJ.

A complex trademark composed of two verbal elements is likely to appear, to an average-attention consumer, as a variation of the earlier trademark for product ranges of the brand composed of two flavors or sold in pairs, as long as the consumer is led to attribute the same origin to these products or, at the very least, to consider that they come from undertakings that may be economically linked.

CA Paris, 17 February 2012, LawLex202100005978JBJ.

A brand that evokes the surname of a prominent French family and armagnacs from an estate does not contain elements likely to mislead the average consumer of the products concerned, as they will not be led to associate it with a renowned red wine, nor will they be led to think that the products covered by the contested brand are by-products of the château where this wine is produced.

CA Paris, 7 May 2019, LawLex202200002855JBJ.

When the similarities between the signs, linked to the presence of common letters in the same order that provide the same initial sound, are counterbalanced by visual differences due to a dominant figurative element in the second mark, as well as differences in rhythm and ending sound, which are as important to the relevant public as the initial sound, and by the lack of conceptual similarity between the marks, the reasonably attentive consumer cannot be led to believe that the contested sign is a variation or adaptation of the earlier mark.

Cass. com., 11 January 2017, LawLex202200000542JBJ.

The substitution of the first name Lauren for Laure does not differentiate the second mark from the earlier mark and is not likely to avoid the risk of confusion for the average consumer who would not have both signs simultaneously in view, as the public may be led to believe that the second mark shares a common origin with the earlier mark and that the owner of the latter sought to diversify their creations and market identical or similar products using the first name Laure preceded by another first name.

CA Paris, 8 November 2000, LawLex200300002506JBJ.

In what case is there a risk of confusion or association between identical or similar signs?

The similarity, whether visual, auditory, or conceptual , between the signs must be such as to create an association and an impression of analogy  or lead the consumer to believe that the contested sign is a variation or adaptation of the earlier trademark .

The similarity of the signs is assessed with regard to the overall impression they produce, taking into account their distinctive and dominant elements, by examining both their differences and similarities and considering the moment when the choice is made between the different products placed on the market . The overall impression can be established even if no specific element of the protected trademark has been imitated . The belonging of the earlier trademark to a family of marks may also lead the consumer to be mistaken about the origin or source of the products or services covered by the disputed sign .

in the event of the adoption of distinctive elements characteristic of the trademark and differences in details not perceptible by an average attentive consumer ;

in cases where similarities outweigh differences to the point of causing confusion .

the differences between the signs are striking or predominant compared to the similarities ;

the similarities between two trademarks are blurred by their visual and phonetic differences ;

the overall impression is different  or the essential distinctive elements of the trademark are not reproduced .

The strong distinctiveness of the earlier trademark  favors assimilation, while a generic trademark, even if similar to the disputed sign, makes it unlikely . In the case of a complex trademark, the comparison of the signs may focus on its dominant element  or the independent distinctive position of the earlier trademark .

The use of the domain name “desirs-sexes” subsequent to the filing of the sign “Désir Sexe” and the reservation of the domain name “desirsexe” constitutes the unlawful imitation of the trademark “Désir Sexe.” The addition of the final letters “S” is ineffective in eliminating, in the minds of the concerned internet users, any visual, phonetic, and intellectual risk of confusion between the names present, so that the acts of infringement are established.

CA Paris, 19 October 2005, LawLex202200001338JBJ.

A trademark constitutes an infringement by imitation of the previously registered trademark when there is a phonetic and referential similarity between them, reinforced by the notoriety of the first, which can only create in the mind of the average-attention customer, who does not have both trademarks in view at the same time, an association and an impression of analogy likely to cause confusion between the two trademarks.

CA Paris, 21 January 2005, LawLex200700001779JBJ.

There is no infringement as long as the overall impression, even disregarding the non-dominant elements of the two trademarks, is different such that there is no risk of confusion between the two trademarks for the average attentive consumer to whom they are addressed.

CA Rennes, 5 November 2013, LawLex201300001690JBJ.

The use of only those elements that do not constitute the essential distinctive features of the trademark in question is not likely to create a risk of confusion for an averagely attentive consumer who does not have both the trademark and the competitor's packaging simultaneously in view.

CA Paris, 15 October 1999, LawLex200200000902JBJ.

If the reputation of a trademark is likely to influence the assessment of the risk of confusion due to the increased distinctiveness conferred by this renown, the reputation, which can only concern the first trademark and not the second, cannot in any case exempt from investigating whether there is a risk of confusion between the opposing signs.

CA Paris, 17 March 2017, LawLex201700000566JBJ.

The courts must, after noting that the acronyms in question were “phonetically likely to cause some confusion,” determine whether the commonplace nature of the word “laboratoires” is sufficient to avoid confusion.

Cass. com., 22 October 1991, LawLex202100005294JBJ.

In the case of a prior trademark used by a third party in a composite sign including the name of that third party's undertaking, which retains an independent distinctive position without constituting the dominant element, the overall impression produced by the composite sign may lead the public to believe that the goods or services in question originate, at the very least, from economically linked undertakings, in which case the existence of a likelihood of confusion must be acknowledged.

ECJ, Case C-120/04 Medion AG, Judgment of 6 October 2005, LawLex200900000409JBJ.

An element of a composite sign that, together with the other elements of the sign, forms a unit with a different meaning compared to the meaning of these elements taken separately, does not retain an independent distinctive position. Therefore, the finding of the existence of a likelihood of confusion is not subject to the condition that the overall impression produced by the composite sign is dominated by the part of it constituted by the earlier mark.

Cass. com., 21 June 2016, LawLex202200000081JBJ.

There is no risk of confusion between the signs in question as, given the significant visual and phonetic differences between the signs taken as a whole, the reasonably attentive consumer will not be led to believe that the contested sign is a variation or adaptation of the earlier trademark.

CA Paris, 28 June 2016, LawLex202200000028JBJ.

To assess the reputation of similar products, the judge may conduct an overall comparison of the signs in question, based on their distinctive and dominant elements, considering the moment when the choice is made between the different products on the market and with regard to an average consumer who is reasonably well-informed and reasonably observant and circumspect.

Cass. com., 3 March 2021, LawLex202100000655JBJ.

Counterfeiting is established as soon as a likelihood of confusion in the public's mind is created by the overall impression produced by the signs constituting the imitation, even if no specific element of the protected trademark has been imitated.

Cass. com., 18 April 2000, LawLex200200000806JBJ.

When the trademark and the conflicting sign present a certain similarity, the assessment of the likelihood of confusion must take into account the trademark's belonging to a family of marks, as the consumer may be mistaken about the provenance or origin of the products or services covered by the disputed sign and wrongly assume that the latter is part of this family of marks.

Cass. com., 27 May 2021, LawLex202100003317JBJ.

The infringement of a figurative trademark is established when the allegedly infringing product reproduces its distinctive characteristic elements and the differences in details, not perceptible by an average attentive consumer, do not affect the identical overall impression and are likely to create a risk of confusion regarding the origin of the products.

CA Paris, 11 October 2000, LawLex200200000730JBJ.

The overall impression produced by the trademarks may result from a similar appearance and sound of the disputed signs, with the similarities outweighing the differences to the point of causing confusion in the mind of the average consumer who does not have both signs in front of them.

Cass. com., 20 September 2016, LawLex202100005351JBJ.

500 Questions - Business Law

316. Can the trademark holder prohibit the use of similar signs for different products?

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316. Can the trademark holder prohibit the use of similar signs for different products?

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Les décisions de justice citées dans ce paragraphe :

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