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

An undertaking's advertising policy is obviously an important identifying element. Imitation in this area normally concerns slogans. The general rule is that advertising ideas are not capable of appropriation . Indeed, an advertising slogan is only capable of being the basis of a suit for unfair practices where there is confusion or a risk of confusion and proof of fault on the part of the competi …

Advertising

Confusion is frequently created by the imitation of the elements that serve to identify an undertaking for the purpose of acquiring its clientele. In order to poach the customer-base of a competitor, an operator can imitate the distinctive signs of the company - logo, trade name, registered name, etc. in order to mislead the consumer as to the identity of the company in question. Technologies such as the internet have also opened up new ways of appropriating others' customers. 

However, such signs are not the only elements of brand identity. Advertising, commercial documents, exterior decoration are all aspects generating customer loyalty which can be imitated in order to create confusion with the image that the company has built. 

 Various elements of identity

The emblem (name and sign under which a business trades) of a business is a very important distinguishing element. The emblem used must do more than just identify the type of business - it must be particular and not generic , even if the association of generic and ordinary words can constitute a distinctive name liable to be covered by an exclusive right . On the other hand, an action in unfair competition which is available to persons not able to assert exclusive rights, does not require the sign to be original . 

Priority of use ensures that the trader has the right to prevent other traders from using the same emblem for a similar business . The protection varies according to the nature of the business and the notoriety of the emblem: it can extend to the same neighborhood and the same city  or to the whole of France . There is only unfair competition if the use of the emblem creates confusion in the minds of the public between two establishments of the same kind aimed at the same clientele . Where there is no actual direct copying, the similarities must be sufficient to cause confusion in the minds of moderately attentive customers .

Imitation of an emblem with very high recognition may be punishable when there is merely a danger of confusion; unfair competition suits in this case seek to check a parasitic practice whether or not a customer base is shared . 

Like for emblems, the competing use of another's trade mark under the form of a logo may create a risk of confusion between products and services or as to the origin of products or services, as the consumer may attribute them to one and the same undertaking . Confusion exists if the public may regard the logos of an operator as designating products or services of an undertaking economically linked to the undertaking having registered the logos as distinctive signs . However, as the free play of competition must prevail, in the absence of any official label or stamp, the use of a logo invoking, for example, ecology  is not unlawful.

CA Paris, 24 October 1964; 20 December 1989, LawLex200200001889JBJ, on protecting a trade logo that combines generic or commonplace terms.

CA Paris, 20 December 1989, LawLex200200001889JBJ, association of the terms Hôtel Résidence and Saint-Honoré.

See CA Paris, 11 October 2013, LawLex201300001502JBJ.

CA Versailles, 14 June 1991, LawLex200200001803JBJ.

Cass. com., 26 May 2004, LawLex200400001415JBJ.

Cass. req., 20 February 1888, D., 1888, 1, 315, S., 1888, 1, 301; 19 December 1898, S., 1901, 1, 43; Cass. com., 12 July 1948, D., 1948, 566; CA Paris, 20 December 1989, LawLex200200001889JBJ; on the usage requirement, Cass. com., 21 October 1997, LawLex200200001211JBJ.

Cass. civ., 17 January 1894, D., 1894, 1, 128, S., 1894, 1, 482; 8 January 1964, D., 1964, 186; CA Paris, 21 March 1988, LawLex200200001923JBJ.

CA Paris, 7 March 1928, S., 1929, 2, 65; Cass. req., 19 March 1936, D., 1936, 361; Cass. com., 4 May 1948, S., 1948, 1, 101.

Cass. com., 8 June 1955, Gaz. Pal., 1955, 2, 78; CA Paris, 8 December 1962, D., 1963, 406; 15 June 1971, Gaz. Pal., 1972, 2, 15; 11 July 1973, RTD com., 1974, 84; 10 November 2000, LawLex200200000713JBJ, claim of confusion due to use of identical colors; CA Pau, 4 November 2002, LawLex200300000822JBJ, the emblem "De particulier à particulier" (between private individuals) is devoid of originality and is common in the real estate sector; CA Versailles, 4 June 2013, LawLex201300000939JBJ: the adoption, for the operation of the business, Speed Allo Pizza, in direct competition with the company Speed Rabbit Pizza, of the visual references used by the latter (yellow and black colors, headband in black-and-white checkerboard, inclusion of the name of the company in black letters on a yellow background) for the storefront,  commercial documents and vehicles, constitutes an act of unfair competition. Cass. com., 16 October 2019, LawLex201900001250JBJ: a court of appeal cannot reject the application of the transferee of a business for the cessation by a competing undertaking, subject to penalties, of the fraudulent use of elements of its trade name included with the transferred business on the grounds that the company's bad faith concerning the use of the disputed sign for its business is not established, without ascertaining whether such use was likely to create a risk of confusion in the mind of the customers, by implying that the transferors’ previous business has relocated.

Cass. com., 6 January 1969, D., 1969, 454; CA Paris, 16 June 1980, Ann. propr. ind., 1981, 144; Cass. com., 7 April 1992, Bull. civ. 4, nº 152; cf. CA Paris, 20 October 1989, LawLex200200001894JBJ; 6 December 1990, JCP G, 1991, 4, 123; Cass. com., 23 March 1993, LawLex200200001654JBJ; CA Aix-en-Provence, 29 May 2008, LawLex200900002950JBJ.

Cass. com., 16 June 1992, LawLex200200001724JBJ: La Tour d'argent; 7 April 1992, CA Paris, 30 November 1989, LawLex200200001892JBJ: Barbara.

CA Paris, 15 March 2002, LawLex200200000503JBJ, use of the logo of the Caisse d'épargne bank.

Emblem ("enseigne") and logo

The protection of a trade name, under which people or companies carry out their business, raises questions similar to those involved in protecting trade marks. The trade name is the name under which the legal or natural person carries out its commercial activity whereas a trade mark designates the origin of the product or service. Both are identifying elements of a business, but there is no equivalent of an infringement action with respect to trade names, which are protected under the ordinary civil law on which fair competition rules are founded. 

Trade names, registered or not, have been protected in its contracting States since the 1883 Convention of the Union of Paris, irrespective of whether the trade name forms a part of a trade mark (Art. 8) but the definition of a trade name varies from country to country. In France, trade names are protected only where they are known or used on French territory .

Undertakings are free to choose the trade name as long as it does not infringe upon the rights of another person or business .  Rights to a trade name are acquired through use , and if the use stops, the right is lost . The right to the name is enforceable against third parties as soon as the legal entity is registered at the Trade and Companies Registry ("Registre du commerce et des sociétés") . Although a declaration of the chosen designation of the name to a professional order may constitute a criterion of assessment, the courts may prefer to base their decision on how long the copied sign has been in use . Protection depends on originality of the name  in the economic sector under consideration and geographical proximity of competitors . However, the success of an unfair competition action does not depend on originality or distinctiveness as they are merely possible criteria for the assessment of fault and risk of confusion , which is assessed in the context of the average, reasonably well informed and reasonably observant and circumspect consumer of the goods and services concerned . The same word can be used for a corporate name and a domain name, without risk of confusion, when the activities concerned are distinct by their nature, meet different needs and do not target the same clientele . However, even if the characterization of a risk of confusion between the usurped corporate name and the distinctive sign which imitates it must be done in accordance with the principles of specialty and territoriality, the application of the principle of specialty to the name does not require the activities of undertakings to be strcitly identical, because the risk does not lie in a confusion between products, like in matters relating to trade marks . Where a name is made up of a number of words, any one of them can be isolated and protected if it is sufficiently distinctive and allows consumers to distinguish a given business from others, i.e. of an essential, arbitrary distinctive and new nature having regard to the activity in question, making the undertaking distinguishable in the eyes of the public . This is not the case where the name of the local municipality ("commune") from where the business operates is used . On the other hand, the use of a name consisting only of the name of a municipality is wrongful if it is of such a nature as to create a manifestly unlawful disturbance (trouble manifestement illicite) due to a confusion in the minds of members of the public with the town in question, even though there is no protection for the names of municipalities . 

Usurping or imitating a trade name, and creating a risk of confusion between the common customer-base of undertakings engaged in a similar activity constitutes an act of unfair competition . The courts do no sanction the mere fact of having the same name as another undertaking  but if there is a genuine risk of confusion, imitation may be deemed unfair whether or not it is deliberate . 

Cass. com., 17 July 1984; CA Paris, 27 November 1980.

The corporate name and the trade name are not protected by intellectual property ownership rights and may be reproduced or copied when such reproduction or copies are devoid of any misconduct violating the fair and peaceful enjoyment of the freedom of trade and industry: CA Paris, 14 November 2012, LawLex201200002322JBJ.

CA Paris, 24 April 2013, LawLex201300000759JBJ.

CA Dijon, 12 December 2019, LawLex201900001544JBJ, considering that the use by the company in its name of the terms "auberge" (inn) and "passe-temps" (pastime) is not unlawful in the absence of a risk of confusion, as the parties operate their restaurant business at a distance of around 20 kilometers apart and catere to different clienteles, one offering gourmet food to a clientele of connoisseurs while the other provides fast food for passing trade.

CA Paris, 28 June 1995, LawLex200200001442JBJ; 28 March 1997, LawLex200200001282JBJ; CA Paris, 1st February 2002, LawLex200200006353JBJ; the use of a distinctive element of the corporate name of a competitor, in order to promote an event, creates a risk of confusion on the identity of the promoter and constitutes unfair competition; CA Paris, 1 February 2010, LawLex201000000732JBJ: use as a corporate name of the term "Actuel Réception" is unfair, insofar as the word "Actuel" (current) is arbitrary in relation to the activity of the parties, and is virtually identical, visually and phonetically to the corporate name of the complainant "Aktuel Événement", and is likely to lead to a risk of confusion in the minds of customers.

CA Paris, 6 March 2002, LawLex200200006223JBJ; Cass. com., 23 September 2008, LawLex200800001689JBJ, the use for designer furniture, of the name of a French province.

Cass. com., 10 July 2012, LawLex201200001724JBJ.

Cass. com., 13 November 2003 LawLex200300004413JBJ; CA Paris, 20 November 2013, LawLex201300001678JBJ. For a broad view of what constitutes a similar activity, see CA Paris, 4 October 1996, LawLex200200001326JBJ, which equates the activity of cleaning premises with the ancillary activity of the provision of any type of laundry and washing service.

For examples see CA Paris, 30 November 1989, LawLex200200001892JBJ, unlawful reproduction of a well-known name even though the products differed by creating the belief that the company had branched out into a new activity; CA Paris, 28 June 1995, LawLex200200001442JBJ, absence of risk of confusion between names which are similar but used in different sectors; CA Rouen, 4 September 1997, LawLex200200001231JBJ, insufficient similarity in the names to characterize confusion in the case of coexistence over a long period; CA Besançon, 11 December 2001, LawLex200200000576JBJ; Cass. com., 13 November 2003, LawLex200300004413JBJ, finding confusion when companies with the same name exercise the same activity; CA Paris, 30 October 1998, LawLex200200001069JBJ, on their relevance of the coexistence of similar names where a new phenomenon occurs which aggravates the confusion.

Cass. com., 16 January 2001, LawLex200200000680JBJ. Also see TGI Strasbourg, 12 April 1989; CA Paris, 21 June 1990, LawLex200200001866JBJ; 17 November 1995, LawLex200200001409JBJ; Cass. com., 8 July 1997, LawLex200200001236JBJ; 9 March 1999, LawLex200200000981JBJ: the origin of the copied term is irrelevant; CA Rouen, 4 September 1997, LawLex200200001231JBJ, no risk of confusion between two similar names due to their having coexisted over a number of years; CA Versailles, 25 October 2001, LawLex200200000601JBJ, the absolute phonetic resemblance and the coexistence for products in the same category create confusion; Cass. com., 6 May 2002, LawLex200200004601JBJ, on the requirement of a risk of confusion.

CA Paris, 14 November 2012, LawLex201200002322JBJ, finding that the trade name made up of the name under which a natural or legal person designates his company or business, is acquired only by the first public use.

CA Paris, 18 April 1989, LawLex200200001909JBJ, on an undertaking's right to have its corporate name protected as soon as it is registered; CA Paris, 29 October 1990. 

CA Paris, 14 November 2012, LawLex201200002322JBJ; Cass. com., 24 June 2014, LawLex201400002161JBJ. 

Cass. com., 24 June 2014, LawLex201400002161JBJ.

Cass. com., 16 July 1991, LawLex200200001797JBJ. Also, CA Paris, 11 April 2002, LawLex200200000444JBJ, the terms "surgical vision center" are commonplace; CA Versailles, 5 December 1991, LawLex200200001771JBJ, the terms "leather and skin" are commonplace. CA Paris, 27 February 2004, LawLex200800000401JBJ, regarding the ordinary, descriptive and generic nature of the term "armoire-lit'' (wall bed); CA Paris, 22 May 2015, LawLex201500000666JBJ, finding that the use of the words "rent a car" is purely descriptive and is not distinctive with regard to car rental services; CA Lyon, 22 January 2015, LawLex201500000122JBJ: The use of identical names to commercialize competing products is wrongful where the names used are not customary in the profession, nor considered as such by the consumer and they have their own distinctive character due to their evocative nature, insofar as it creates a risk of confusion as to the identification of the seller.

Cass. com., 7 February 1995, LawLex200200001487JBJ, no confusion for a trade name which is known only regionally, where the competitor operates outside of that territory; CA Bordeaux, 13 October 1998, LawLex200200001079JBJ: the use by a company of a non-distinctive corporate name which is already used by a renowned competitor exercising the same activity, but on a different geographical area, does not create confusion in the minds of customers; Cass. com., 19 December 2000, LawLex200200000693JBJ, lack of confusion between the similar trade mark and the trade name of companies engaged in different activities in different geographic sectors; CA Nancy, 20 June 2001, LawLex200300002748JBJ: the use, even if non-deliberate, of an expression without distinctive character within the meaning of trade mark law but associated for many years with a company which is well known in the region, creates a risk of confusion between two competitors who sell similar products in the same city; CA Dijon, 28 May 2002, LawLex200200000502JBJ, geographical distance excludes any confusion between similar names of shops aimed at specialized sports practitioners; Cass. com., 27 January 2009, LawLex200900000215JBJ: a company which, for its communications, uses on its commercial and advertising documents the name of a more established company which is already known in the professional world of advertising, with the same activity of publishing advertising materials aimed at consumers in the same geographical area, deliberately creates a risk of confusion.

Cass. com., 10 May 2006, LawLex200600001268JBJ.

Cass. com., 7 July 2021, LawLex202100004644JBJ.

Trade name and corporate name

The situation is a little more complicated where the name in question is patronymic (a family name/surname). Everyone has the right to use his or her patronym as a means of distinguishing a business from competitors. The use of the name has to be real and personal, but if it is, the right usually exists even where the name has already been trademarked. The above conditions are met where the holder of the name heads and controls the company bearing the holder's name . Protection is withheld in cases of fraud, where the name is loaned to another under agreement, or where the name is already used by a well-known namesake engaged in a similar activity . There is no possibility of confusion when the namesake, a member of the same family as the holder of a registered trade mark, uses his first name and family name followed by the word “distribution”, especially given that the creation of ready-to-wear clothing is not comparable with the furs, perfumes and luxury products business . It is also not unfair to use the name of a municipality ("commune") in addition to a common phrase, when it refers to the place where the activity is carried out . On the other hand, the apparent use by a company of the name of its sales director, who has been forbidden to make use of his family name for commercial purposes, constitutes unfair competition, insofar as it was clearly done in order to lead customers to believe that they are being directed to a store within the group of the highly-reputed namesake . Similarly, fault may be established where a legal person adopts the name of its founder appended to that of his wife, whereas a very well-known competitor has a very similar name for a similar business activity .

The use of homonyms also raises the question of whether natural persons may prevent the use of a trade name that includes their own name or elements thereof. Case law shows that only deliberate appropriation of well-known names for commercial use may be barred .

Cass. com., 12 November 1992, LawLex200200001691JBJ, on the right for a namesake holding an important position in the company to use their name as the corporate name by adding their first name to the family name; CA Paris, 11 October 1995, on the name bearer heading and running the company; Cass. com., 14 January 2003, LawLex200300000612JBJ, recalls that in principle, every one may use his or her name as a corporate name as long as such use is fair. The transferor who, does not stop using the name “Cabinet Barthélémy” (Barthélémy Agency) and/or the name Barthélémy as agreed in the transfer agreement, as of 1 January 2008, on all documents and media intended for third parties, violates his contractual obligations and creates confusion in the minds of the public with the company carrying out the same activity as a real estate agency, operating under the name “Lionel Barthélémy”, CA Versailles, 2 September 2014, LawLex201400000861JBJ.

Cass. com., 5 November 1985, LawLex200200001931JBJ, finding that the existence of a well-known namesake prevents the use by a trader of his surname in spite of the exercise of separate activities; 21 April 1992, LawLex200200001740JBJ, impossibility for the party having transferred the shares of a company and the name of that company, to later use that family name for a competing company; Cass. com, 15 June 1993, LawLex200200001637JBJ, Cass. com., 12 February 2002, LawLex200200000553JBJ.

Cass. com., 5 November 1985, LawLex200200001931JBJ: regulation of use of family name by addition of first name; CA Paris, 11 October 1990, LawLex200200001851JBJ, “Révillon” and on appeal in cassation Cass. com., 12 November 1992, LawLex200200001691JBJ.

CA Paris, 6 March 2002, LawLex200200006223JBJ.

CA Paris, 12 July 1993, LawLex200200001627JBJ; CA Aix-en-Provence, 19 May 1994, LawLex200200001567JBJ, “Michel Leclerc” - cf. CA Paris, 17 October 2007, JurisData nº 2007-349493, finding unfair confusion against the creation of an internet link using the name of the director of a competing company.

CA Dijon, 28 February 2002, LawLex200200006357JBJ; See also CA Nancy, 26 February 2024, LawLex202400001914JBJ: the acquiring company of a business which uses the family name of its founder, making it the primary element of its communications and associating its use with the fact that it is the only carpentry undertaking to be “recognized for more than twenty years” in the field and sector in question, whereas another company, owned by the transferor's brother, has been using this name since 1978, to operate a similar business in a nearby locality, commits an act of unfair competition by creating confusion in the minds of the public.

CA Paris, 24 January 1962, Luynes; Cass. civ., 6 July 1965, Negresco; 13 February 1967, Badoit; 19 December 1967, Savignac; 26 May, 1970, Dop; CA Paris, 7 January 1972, Ala; 19 April 1974; 18 June 1975, Talleyrand; 17 December 1976, Foujita; 3 January 1986, Rotschild; cf. Cass. com., 21 October 1997, LawLex200200001211JBJ, on the lawfulness of the trade mark Duc de Praslin, not used by the Duke of Choiseul at the date of registration.

Trade name and family name

Protection of a trade name extends to all mediums and uses. Thus a trade name which gives rise to confusion with another cannot continue to be used online, when it has been prohibited for use as a trade name . The party responsible for the confusion can be ordered to change the name subject to penalties. The Court of Cassation considers that such an order constitutes a prohibition on the use of the name in question . The courts have also ruled that the access code to an electronic directory, which is neither a distinctive sign, a registered trade mark, nor a corporate name, is a means of operating a commercial activity. The party having adopted it must be protected against unfair competition resulting from the use of a similar code enabling the user entry to an existing and similar commercial activity .

The same solution applies to domain names . The use of a domain name which incorporates the trade name of a third party to designate a website offering competing products constitutes an act of unfair competition . The name chosen however must be original. This is not the case when the domain name is entirely descriptive as the proprietor may find the same terms on competing sites and in the results of search engines . 

It is also unlawful for an operator to use the name of others to designate a service which allows direct online access to information on its products . Previously, the complicity of paid internet referencing services could also be found in this case. The service provider could render himself guilty of acts of supplying the means of unfair competition when he failed to ensure  that the keywords chosen by the advertiser did not illegally reproduce a trade name, a trade mark or a domain name . Now, in compliance with EU law,  and the LCEN law on confidence in the digital economy (Law No 2004-575 of 21 June 2004 - loi sur la confiance dans l'économie numérique), which regulates the responsibility of hosting providers, an internet referencing service provider cannot, however, be held liable for the data it has stored at the request of the advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser's activities, it failed to act expeditiously to remove or to disable access to the data concerned . According to the Court of Cassation, an active role by the internet referencing provider regarding knowledge or control of stored data that makes it possible to exclude the benefit of the regime of limited responsibility laid down by the LCEN law, is not established merely due to the fact that the latter has set up its own system of commercial advertisements . Likewise, the use of keywords in the context of the Google AdWords system which uses the corporate name or business name of a competitor is not wrong where the display of the search results in a sidebar entitled “sponsored links” is not likely to make the web-user believe that the products and services referred to in the advertising links originate from the same company  or an economically-linked undertaking . On the other hand, the use of the business name of a competing company in order to trigger the implementation of the Google AdWords system which displays sponsored links relating to the products of that company, but which does not make it possible to identify the advertiser, creates a risk of confusion on the origin of the products marketed .  Google cannot be held liable in respect of its AdWords system for the use by advertisers of keywords corresponding to trade marks, and the corporate names and trade name of a competitor which does not amount to wrongful conduct such as to give rise to compensation for harm suffered .

The reproduction of a third party's domain name is reprehensible like the reproduction of a trade name or a corporate name . Thus, the repurchase, the day after it fell into the public domain, of a domain name that the competitor company with the same name had been using until then, constitutes an act of unfair competition, if it is likely to cause confusion in the minds of the public . This is also the case for the reproduction of the distinctive part of a domain name accompanied by a reference to a competing website in order to create confusion in the public's mind between the domain name and the sign reproducing it , unless the adopted sign is merely the reproduction of generic and usual terms for the type of service in question . Thus, the use of the domain names scootlib.com and scootlib. org does not infringe on the “velib” domain names, whatever their extension, as long as the first syllable(s) to which the consumer generally pays attention are distinct and without phonetic resemblance, and that, from a conceptual point of view, although they have the same construction associating the diminutive of a means of transportation with the suffix “lib” evoking the idea of liberty, they refer to two different types of vehicles, so that the average internet user cannot, when accessing the disputed sites, confuse them with those of the City of Paris or attribute their origin to it .  On the other hand, the use of the terms “comptoir” and “du coton” in a domain name to market bathrobes and slippers is likely to lead the public to believe that there are direct commercial links with the trade name and domain name of a well-known ready-to-wear company, and thus to attribute a common origin to the products respectively offered . The rule also applies to local municipalities, even if the name of the municipalities does not benefit from any protection and the Code of Intellectual Property protects them only against the filing of a trade mark and not of a domain name: using the name of a municipality to operate a website creates a manifestly unlawful disturbance because of the confusion generated in the public's mind .

CA Paris, 7 April 1995, LawLex200200001464JBJ, on the extension of protection of the trade name to all media liable to be used; but see TGI Paris, 7 September 2001, LawLex200200000466JBJ, use of an identical name for a website and a Minitel service (French pre-World Wide Web online service).

Cass. 2e civ., 30 May 2002, SARL France Edition v Association office de promotion internationale, Bull. civ. 2, nº 111.

Cass. com., 20 January 2015, LawLex201500000092JBJ.

Cass. com., 7 June 2016, LawLex201600001097JBJ.

CA Paris, 2 February 2011, LawLex201100000349JBJ;  21 June 2013, LawLex201300001077JBJ; 11 October 2013, LawLex201300001502JBJ, on the use of the semi-figurative trade mark "monmeilleurbanquier.com Le courtier pour vos crédits" which sounds similar has the same overall structure and certain similar visual characteristics as  the logos "meilleurtaux.com 1 credit on the Internet" and "meilleurtaux.com Nos experts à vos côtés", such that the general public might perceive this trade mark as designating the products and services of an undertaking which is economically linked to the company displaying these logos as distinctive signs. See also Case C-278/08 Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH [2010] ECR p. I-2517, LawLex201100000459JBJ: the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with or similar to that trade mark which that advertiser has, without the consent of that proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertising does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or by an undertaking which is economically connected to it or, on the contrary, originate from a third party. See also Cass. com., 14 May 2013, LawLex201300000840JBJ.

Cass. com., 29 November 2011, LawLex201100001888JBJ. See also CA Paris, 15 November 2013, LawLex201300001686JBJ, for an undertaking having activated the redirection of the domain name and the trade name of a competitor to its own site leading internet users to believe that there are commercial links between them.

CA Paris, 2 February 2011, LawLex201100000349JBJ; also see Cass. com., 29 January 2013, LawLex201300000129JBJ: the use, in the form of a keyword, of the corporate name and the domain name of a competitor is not necessarily wrong, in the absence of circumstances which characterize a risk of confusion between the sites concerned.

Cass. com., 26 May 2009, LawLex201000003644JBJ, which penalizes the use by a real estate agent of a competitor's domain name, which is a key aspect of its identification on the Internet.

Cass. com., 2 February 2016, LawLex201600000257JBJ.NAL.

TGI Lille, 10 July 2001, LawLex200200006062JBJ; TGI Nanterre, 7 March 2005, LawLex200500005275JBJ.

TGI Paris, 23 March 1999, LawLex200200000975JBJ; CA Douai, 9 September 2002, LawLex200200006177JBJ; CA Paris, 5 March 2003, LawLex200400001805JBJ; TGI Angers, 6 May 2003, LawLex200300002244JBJ; T. com. Paris, 12 December 2003, LawLex200400002165JBJ; CA Aix-en-Provence, 19 November 2020, LawLex202000003143JBJ : the registration and use of the domain names "vendreouacheter.net" and "toutvendre.fr", domain names that differ from the domain names "vendreouacheter.com" and "toutvendre. com" operated by a competitor company only by the suffix, is not at fault, even if the undertakings involved operate in the same sector, since the terms "tout vendre" (sell everything) and "vendre ou acheter" (sell or buy) are part of everyday language and clearly describe the activity of the designated sites i.e., putting people in contact with each other in order to buy or sell products or services, and consumers searching on the internet clearly would not consider that these expressions designate a particular site, and therefore cannot confuse two sites that use the same terms, even if they are similar.

CA Paris, 26 May 2017, LawLex201700000932JBJ.

CA Paris, 20 September 1991, LawLex200200001792JBJ.

CA Paris, 27 January 2017, LawLex201700000273JBJ (Comptoir des Cotonniers case).

CA Paris, 1 July 2017, LawLex201600001218JBJBJ: the registration of the domain name "nopap" constitutes an act of unfair competition against the person having registered the domain name "pap", which is widely known to internet users, given the risk of association between the names in question.

TGI Paris, 12 March 1998, LawLex200200001158JBJ; CA Paris, 19 October 2001, LawLex200200000477JBJ; CA Rennes, 22 May 2002, LawLex200400001807JBJ; CA Paris, 7 May 2003, LawLex200400001739JBJ; Cass. com., 7 July 2004, LawLex200400001712JBJ; TGI Paris, 14 December 2004, LawLex200500005274JBJ; CA Paris, 16 March 2011, LawLex201100000734JBJ, recalling that buying and using domain names similar to those operated by a competitor to allow access to its internet site is an attempt to create unfair confusion.

T. com. Paris, 24 May 2013, LawLex201300000938JBJ.

TGI Paris, 27 June 2001, LawLex200200000627JBJ; CA Paris, 13 July 2012, LawLex201200001952JBJ, for a company that references its site from the domain name of a competitor to benefit from the traffic generated on the site of the latter; CA Paris, 5 September 2013, LawLex201300001266JBJ, for a real estate ad publisher creating a confusion between its site and the journal "De particulier à particulier" by reserving the keyword "pap" on Google.

TGI Paris, 12 July 2006, LawLex200600001997JBJ, imposing on Google a duty to verify the validity of keywords with regard both to the laws relative to trade marks and fair trading.

Directive No 2000/31 of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJ L 178, p. 1.

Joined cases C-236/08 to C-238/08 of 23 March 2010, Google France SARL v Louis Vuitton Malletier SA [2010] OJ C 209, LawLex201100000505JBJ. See also Cass. com., 13 July 2010, LawLex201000000864JBJ and 20 January 2015, LawLex201500000092JBJ an internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organizes the display of advertisements on the basis of that keyword does not use that sign.

Trade name and internet 

Commercial documents, such as catalogs, product references, and headed paper allow undertakings to establish their brand image. The copying of such documents can constitute a means for third parties to divert customers by the appropriation of a competitor's brand image . In effect, although it may be justified for the characteristics of certain products to be the same, the slavish copying of documents presenting those products to the public is wrongful . The appropriation can take several forms. The copying of a competitor's catalog has been sanctioned by the courts on a number of occasions . Confusion can also result from the use of references identical to those used by a competing undertaking , or using the advertising signs of a competitor and hiding the commercial names . Any risk of confusion can be avoided where sales brochures are clearly differentiated  or where the terms of sale of an operator are as advantageous as those of its competitor .

Such appropriation can also be the result of a presentation of the products of the competitor or of statements to customers which give the impression that the two companies are in fact one: CA Paris, 27 May 1992, LawLex200200001730JBJ; Cass. com., 15 June 1993, LawLex200200001637JBJ

Cass. com., 12 December 2006, LawLex200600002581JBJ.

CA Paris, 20 March 2002, LawLex200200000458JBJ; CA Amiens, 28 June 2002, LawLex200200006333JBJ

CA Paris, 27 May 1992, LawLex200200001730JBJ; CA Lyon, 22 February 1996, LawLex200200001385JBJ; CA Nancy, 3 June 1998, LawLex200200001118JBJ; Cass. 1re civ., 8 December 1998, LawLex200200001036JBJ; CA Paris, 20 June 2001, LawLex200200000630JBJ.

Cass. com., 28 November 2008, LawLex200600002543JBJ.

Cass. com., 2 February 2010, LawLex201000000146JBJ, for sales brochures which are very different in terms of layout, photos used, technical illustrations and covers.

CA Paris, 24 September 2008, LawLex200900000199JBJ.

Commercial documents 

An undertaking may also seek to distinguish itself by its exterior presentation; the latter may be a decisive element for the customer who may, in the event of imitation, confuse traders. However, the courts have been fairly strict in the matter. The exterior decor must be sufficiently characteristic and not result from what is currently in vogue . Further, the similarity must be such as to create a risk of confusion and divert customers. This is especially so when a direct competitor adopts the visual references of a competitor which is very well-known for its store front, documents and commercial vehicles . Interior design may also play some part in identifying the stores of a group in the minds of customers but as it is generally associated with other distinctive signs (logo, emblem etc.) and other attractive features (e.g. after-sales service), it is not in itself a decisive element in terms of customer choice. Only an identical reproduction of the interior design is therefore unlawful as the risk of customer poaching can only exist if the undertakings are located in the same catchment area .

CA Paris, 7 May 1986, LawLex200200001930JBJ.

CA Versailles, 4 June 2013, LawLex201300000939JBJ.

TGI Paris, 21 February 1996, LawLex200200001386JBJ; T. com. Nancy, 9 December 2002, LawLex200300001878JBJ, excluding confusion when the exterior sign is sufficiently distinct from that of the competitor, even if the interior is still similar in terms of concept and  atmosphere to that of the competitor and the former franchisor. But see T. com. Lyon, 6 September 2002, LawLex200300001673JBJ, finding that the applicant to a franchise network creates a confusion by keeping the same the layout and the organization of the store required to integrate the network.

Exterior decor  

An undertaking's advertising policy is obviously an important identifying element. Imitation in this area normally concerns slogans. The general rule is that advertising ideas are not capable of appropriation . Indeed, an advertising slogan is only capable of being the basis of a suit for unfair practices where there is confusion or a risk of confusion and proof of fault on the part of the competitor is brought to bear . Likewise, similarities between the project of a communications agency pre-selected in the context of a call for tenders and with which relations were not ultimately pursued and the final advertising campaign released do not in themselves demonstrate an act of unfair competition on the part of the advertiser, when the two undertakings worked on the basis of the same instruction . Moreover, the slogan must be original in nature to be protected . If the similarities between the publicity slogans are a result of the adoption of similar promotional methods and elements and formulas necessary for its description, there is no risk of confusion . However, the appropriation of an advertising idea can be considered an aggravating factor in a finding of confusion . The abusive use of the term “fresh compotes” in order to create confusion with the products containing the indication that such products should be kept refrigerated is therefore unfair . Likewise, the slavish copying of the advertising tools of others , advertising signs  or labels  belonging to a competitor constitutes a wrongful act. Lastly, the use by a former distributor having become a garage owner of the term “specialist” of the brand, which was sanctionable over a long period of time, now only constitutes a fault if the undertaking in question cannot bring evidence of the reality of that description, or if it leads to confusion with actual members of the network . This would not be the case of course if the former dealer continues to use the network logo or trade mark .

CA Paris, 28 November 1958; Cass. com., 16 June 1964; CA Paris, 22 April 1969.

CA Paris, 17 November 1992, LawLex200200001687JBJ; CA Versailles, 24 November 1994, LawLex200200001513JBJ; CA Paris, 30 March 2005, LawLex200500008613JBJ, there is no confusion based only on a reference to the character of Tarzan; CA Paris, 12 September 2012, LawLex201200002085JBJ, finding confusion when the advertising slogan is accompanied by the canvassing of the competitor's clientele intended to make them believe that its products will be replaced by those of the perpetrator of the act of unfair competition; Cass. com., 10 September 2013, LawLex201300001314JBJ, ruling out unfair competition in the absence of possible confusion between Cadeaux du monde (gifts from around the world) used for an advertising brochure and the brand “Maison du monde”; Cass. com., 25 November 2014, LawLex201400001408JBJ, finding that the comparison of the slogans “your age is your advantage” and “your age is a gift”  (votre âge c'est votre avantage and votre âge vous fait un cadeau) dispels any risk of confusion even if the sequence of words is similar and they both directly address the customer.

Cass. com., 17 December 1991, LawLex200200001768JBJ,for the use of the expression “workshop and sales specializing in Mercedes and other brands”; TGI Marseille, 14 January 1994, LawLex200200001604JBJ, on the inappropriate use of the mark of the licensor by a garage mechanic whose dealership status has been withdrawn; CA Rouen, 4 September 1997, LawLex200200001231JBJ, use by an unauthorized dealer of the formula “specialist” of the brand, intended to make customers believe that it is member of the network; Cass. com., 13 January 1998, LawLex200200001194JBJ, advertisements presenting a repairer as a specialist of a brand; TGI Vienne, 15 May 2003, LawLex200300002131JBJ, on the use of a brand associated with the words “supplier” and “new cars”.

CA Toulouse, 19 June 1997, LawLex200200001248JBJ, misappropriation by a non-network reseller of the automaker's trade mark; CA Dijon, 3 July 1997, LawLex200200001239JBJ, use by a former dealer of the logo of the supplier and its old telephone number suggesting that he is still a network member; CA Paris, 8 April 1998, LawLex200200001138JBJ, use without authorization of a competitor's logo as a trade sign; Case C-63/97 BMW [1999] ECR p. I-905, LawLex200700001824JBJ, laying down the right to prohibit a third party form using a trade mark where there a likelihood of unfair confusion.

CA Versailles, 27 October 2020, LawLex202000002995JBJ.

CA Paris, 22 April 1969, on the compared whiteness of laundry used by two brands of detergent; CA Paris, March 1, 2023, LawLex202300003208JBJ: the fact that a company uses elements in an advertisement in 2018 that are found in two advertising films by a competitor, which were shown on television up to 2014 but are still present on social networks, does not create confusion for the consumer, since they are essentially trivial elements of an advertising message focusing on the olive oil-based composition of cosmetic products.

CA Paris, 9 October 1954; CA Versailles, 24 November, LawLex200200001513JBJ.

CA Paris, 3 April 1998, LawLex200200001144JBJ; CA Versailles, 18 February 2014, LawLex201400001586JBJ; Cass. com., 24 November 2015, LawLex201500001616JBJ.

Cass. com., 12 January 1999, LawLex200200001028JBJ; CA Versailles, 30 January 1997, LawLex200200001298JBJ.

CA Versailles, 13 January 2000, LawLex200200000856JBJ: copy of advertising display equipment; Cass. com., 20 February 2007, LawLex200700000309JBJ: reproduction of an advertising catalog.

CA Paris, 9 April 1992, LawLex200200001742JBJ.

CA Poitiers, 14 October 2011, LawLex201200000964JBJ: copy of the labels of the leading company on the very limited market for the marketing of beef tongues.

French Competition Law

52. Advertising

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

52. Advertising

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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