French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

When assessing the existence of confusion or risk of confusion, the courts refer to the “typical averagely vigilant and attentive customer” . Thus, according to the Court of Cassation, a court of appeal cannot, in order to rule out any risk of confusion in the mind of the public, hold that the consumer of motor vehicle rental services is a well-informed consumer, who is required to enter into a se …

Average discerning customer test

Imitation in itself does not constitute unfair competition . It is necessary that there be a sufficient resemblance so as to create confusion or a risk of confusion in the minds of consumers . The assessment of the fault in respect of the risk of confusion must be based on a concrete reasoned approach to the facts taking into account how slavish, systematic and recurrent the reproduction or copy is, the age of the original  and the renown of the copied performance or product . Thus, it is not enough that the aspects of the packaging which are the same for the two products merely lead consumers to believe that they belong to the same range . The courts must assess whether, in view of the similarities, the overall impression is such as to create a risk of ambiguity in the minds of customers who do not have the two products directly in front of them . Differences with regard to minor aspects of the product cannot lead to the risk of confusion being ruled out where the other features, when combined, are virtually identical to those of a competitor's product and the latter has built its reputation and its clientele on them . An unlawful confusion exists when the elements of similarity are not accidental but reflect a deliberate aim to imitate the product of a competitor whose success and notoriety are proven, in such a way as to create a risk of confusion between them in the minds of customers . This is particularly the case when an undertaking is not only influenced by the style of clothing of well-known designers, but also incorporates the “codes” of those styles - such as the highly specific cut, buttons and labels - the confusion by identification being further increased by the fact that, during the presentation of its collection, its directors were wearing the clothing of the copied designers . 

There is no risk of confusion when the packaging of the products creates a distinct overall impression  or when the differences found give the products a general arrangement which allows them to be distinguished . Similarly, when the choice of colors and themes gives a different general appearance and the products are intended, on the one hand, for children, and on the other hand, adults , when there are phonetic and intellectual differences in their names , when the risk of a confusion in the sound of the names is removed by the differences between the business documents,  , or the similarities claimed between two magazines are only apparent on the inside and not on the cover , there is no ambiguity.

CA Paris, 18 October 2000, LawLex200200000727JBJ, the mere act of copying the services of others did not in itself constitute an act of unfair competition.

The court must thus characterize the slight differences it has identified to justify the dismissal of the action in unfair competition: Cass. com., 12 February 2002, LawLex200200000455JBJ. In addition, the similarity may be tempered notably by the indication of the name of the manufacturer on the product intended for experienced traders: Cass. com., 8 October 2002, LawLex200200006031JBJ. There is no risk of confusion between a “country cottage” line, of predominately recognizable white-painted wood, and a range with a polished wood look which focuses more on the content of non-visible storage compartments: Cass. com., 29 January 2013, LawLex201300000131JBJ.

CA Paris, 11 December 1998, LawLex200200001035JBJ; CA Lyon, 4 April 2024, LawLex202400002950JBJ: the fact that a company intends to develop a fitness court concept does not allow it to prohibit the development of other outdoor sports concepts, provided that they do not form part of an unfair competition or free-riding operation, since any likelihood of confusion can be ruled out when a comparison of Fitness Court and Sport Libre type facilities easily demonstrates the absence of similarities between the two, and aesthetic and size differences establish that the defendant has not taken on the features resulting from its contractual relations with the plaintiff company.

CA Paris, 14 March 2001, LawLex200300003002JBJ.

CA Paris, 26 October 1994, LawLex200200001527JBJ.

Cass. com.,10 June 1997, LawLex200200001252JBJ.

CA Paris, 21 June 2016, LawLex201600001227JBJ. A contrario, the company that uses the name “Jour de France” to individualize the publication it runs, with a cumulative use of the color codes, layout and graphics of the magazine “Jours de France” published by the plaintiff from 1954 to 1989, creates confusion in the mind of the relevant public, since the magazines at issue belong to the same “celebrity sphere” field and can be found in the same sales outlets, Cass. com., 6 December 2017, LawLex201700002051JBJ.

Even if the distinctiveness of the imitated mark is not a condition for success in an unfair competition action, it is a criterion for assessing fault and the likelihood of confusion in the mind of the public between the marked goods and services and the activity of the defendant company, CA Paris, 20 May 2016, LawLex201600000964JBJ.

Cass. com., 2 February 2010, LawLex201000000145JBJ.

Cass. com., 12 January 1999, LawLex200200001028JBJ.

Cass. com., 21 June 1994, LawLex200200001554JBJ; 13 February 1996, LawLex200200001391JBJ; 12 February 2002, LawLex200200000454JBJ. Thus, the manufacturing and marketing by the former sub-contractor of the complainant of a range of fireplaces reproducing the overall look of the range for which he is known is likely to cause confusion in the minds of the reasonably circumspect consumer, who can be induced to make an unjustified link between the two ranges at issue and believe that the contentious range is a derivative of the original, CA Paris, 18 May 2011, LawLex201100001085JBJ.

CA Paris, 4 February 2011, LawLex201100000303JBJ.

CA Paris, 13 June 2012, LawLex201200001630JBJ.

CA Paris, 29 April 2011, LawLex201100001513JBJ.

Cass. com., 12 February 2002, LawLex200200000552JBJ. CA Lyon, 30 June 2011, LawLex201200001164JBJ: there can be no confusion between a product which is presented in the form of a square box in which round holes allow pots to be placed, with the customer making his/her own “Flowerbox” by arranging the floral composition, and the “Wallflower” product which consists of a square box comprising, at the back, pre-arranged plants, insofar as at the time of purchase or after installation, these two items produce a very different overall impression.

Assessment of similarity

When assessing the existence of confusion or risk of confusion, the courts refer to the “typical averagely vigilant and attentive customer” . Thus, according to the Court of Cassation, a court of appeal cannot, in order to rule out any risk of confusion in the mind of the public, hold that the consumer of motor vehicle rental services is a well-informed consumer, who is required to enter into a service contract, without characterizing in what way, in view of their nature, the motor vehicle rental services in question is aimed at persons with a level of awareness higher than that of the average, reasonably informed and reasonably observant and circumspect consumer, which is in principle the reference benchmark . The courts consider the averagely attentive customer to be akin to the “not particularly vigilant” consumer who retains an overall impression of similarity when not directly seeing the products . According to the Court of Cassation, the fact that the alleged examples of confusion concern only persons who, in view of their jobs or activities, have a higher level of understanding and attention than the average consumer of the category of services concerned, does not mean that the errors made by these persons are not of such a nature as to establish the existence of a likelihood of confusion on the part of the average consumer .

Therefore, the identical copy of a model creates a risk of confusion when the similarities between the two models are too close for the average consumer to be able to differentiate between technical differences, especially quality, which is only perceptible when successively and simultaneously confronted with two items . On the other hand, the similar aspects of packaging which is usual in the sector in question are  unlikely to lead to a risk of confusion . The fact that a few customers have been mistaken is not enough; confusion is only wrongful if it concerns all potential consumers .

CA Paris, 15 January 2019, LawLex201900000086JBJ : the confusion between the distinctive signs of two car rental companies must be assessed by reference to the average consumer of the category of services in question, who is reasonably well informed and reasonably observant and circumspect. Article L. 121-1 of the Consumer Code which prohibits unfair commercial practices uses the expression "consumer who is reasonably well informed and reasonably observant and circumspect". CA Paris, 15 January 2019, LawLex201900000086JBJ: misconceptions made by law enforcement agencies, court officials, government officials, suppliers, service providers, insurance companies, news agencies, recruitment agencies, or employees or franchisees of the undertaking, are not relevant in establishing actual confusion between the distinctive signs of the two car rental companies in question, since they only concern persons who cannot be equated with the average consumer of the category of services in question, who is reasonably well-informed, reasonably observant and circumspect, and who should in principle be referred to. 

See Cass. com., 8 June 2017, LawLex201700001024JBJ.

CA Nîmes, 24 September 1998, LawLex200200001087JBJ.

Cass. com., 7 July 2021, LawLex202100004644JBJ.

CA Paris, 27 September 1993, LawLex200200001622JBJ; CA Versailles, 11 May 2006, LawLex200800000242JBJ.

Cass. com., 26 May 2004, LawLex200400001286JBJ.

Cass. com., 13 January 1998, LawLex200200001193JBJ. See also CA Paris, 15 January 2019, LawLex201900000086JBJ, considering that the number of customers - seventy-five - who confused the two undertakings in question because of the similarity of their distinctive signs must be put into perspective with regard to the period covered (six years) and the volume of transactions carried out each year by the parties, which amounted to several hundred thousand, so that the complainant undertaking failed to establish the reality of the risk of confusion between the trade name, trademark and sign of the undertakings in question and its own corporate name, trade name, domain name and commercial sign.

French Competition Law

42. Average discerning customer test

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42. Average discerning customer test

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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