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

Confusion between two products can result from the imitation of one product's brand name. The brand name indicates the origin of goods or services and is the subject of special protection by way of an action for infringement (Art. L. 716-1 Intellectual Property Code). However, as we have seen, the subsidiary character of an action for unfair competition allows actions for IP infringement and unfai …

Imitation of an original brand

The courts will sanction both the unlawful imitation  and the unlawful use of the trade mark .  Thus, when the complainant's commercial policy distinguishes its “Les  Déglingos” soft toys, which are marketed in a high-end specialized  distribution channel, from its “Maboul” soft toys, which are developed  for mass distribution, a supermarket is guilty of unfair competition  when it creates confusion between these products by a misleading  presentation and the exact same promotional text as the “Les Déglingos”  soft toys, which is likely to lead the consumer to believe that they are  identical products benefiting from a more advantageous price due to commercial agreements .  The use by an operator of certain specific words to designate its brand  in order to create confusion with a competitor's designation is unfair  behavior .  When a business is the outcome of a family history, the purchaser of this business is entitled to take advantage of this heritage, provided that he does not create a risk of confusion between his activity and that of family members who have remained active in the same field .  On the other hand, the transfer by an emblematic French designer of all the assets of his eponymous company, in the course of insolvency proceedings, does not authorize the company to publish drawings falsely attributed to him or to market chocolates with advertisements naming him, leading people to believe that he had agreed to be associated with the launch of the sale of said chocolates, since there is a risk of confusion in the minds of the public and his partners, who are led to believe that the such a collaboration is real .

A trade mark proprietor can prohibit an advertiser from advertising  online on the basis of a keyword similar to the protected trade mark,  where that advertisement does not enable internet users to ascertain  whether the goods referred to originate from the proprietor of the trade  mark or an undertaking economically connected to it or, on the  contrary, originate from a third party .  Similarly, if an item may be freely copied when it is not protected by  an intellectual property right, unfair competition cannot be ruled out  without examining if, regardless of the risk of confusion, the  infringing bag is not likely to evoke in the minds of the public  concerned the copied bag and, in view of its poor quality, to damage its  brand image and its reputation .  On the other hand, the use of common terms which constitute some  elements of a registered trademark does not suffice to create a risk of  confusion with it .  Thus, an undertaking may reproduce on schoolchildren's pencil cases,  mouse mats or coasters the main monuments and sights of Paris, including  the Moulin Rouge, since in the absence of any reference to the  commercial activity of the latter, there can be no confusion between  their respective activities .  In the same way, a graphic design company that has reproduced the  trademarks of champagne, wine and spirits producers, with or without  their graphic background, only on the work it has produced on their  behalf, and which, subsequently, in accordance with the contracts and  practices in force, has represented them only on its commercial media  for information purposes, does not commit an act of unfair competition .

The originality of the name, emblem ("enseigne") or trade name  is a determining factor for protection against unfair confusion. Thus  the mere use of a typical English word commonly used in France combined  with everyday generic terms is not considered capable of creating  confusion in the minds of consumers .  In contrast, the reproduction by a competitor, on its website of the  terms “Argus”, “Cote Argus” or “l'Argus”, used by a well-known auto  magazine providing used-vehicle valuation services is wrongful insofar  as it results in a risk of confusion and the misappropriation of  customers .

Cass. com., 12 July 1993, LawLex200200001628JBJ; 28 June 2012, LawLex201200001234JBJ.

Cass. com., 23 March 1994, LawLex200200001585JBJ, use of a trade name which has been lawfully acquired in another country as a trade mark in France; CA Dijon, 12 January 1995, LawLex200200001499JBJ and Cass. com., 12 March 2002, LawLex200200000546JBJ, use of a trademark to Scottish sounding trade mark to designate whisky-based spirits produced in France.

CA Paris, 5 May 2017, LawLex201700000902JBJLawLex201700000902JBJ.

CA Versailles, 16 October 1991, LawLex200200001784JBJ: Maisons Kitconfort and Kiteco.

CA Paris, 12 May 2015, LawLex201500000597JBJ.

CA Paris, 16 May 2015, LawLex201700000905JBJLawLex201700000905JBJ.

Cass. com., 14 December 1999, LawLex200200000866JBJ; 19 April 2004, LawLex200500005531JBJLawLex200500005531JBJ: the adding of terms or figurative signs to the infringing mark does not exclude confusion, but may on the contrary aggravate it.

Cass. com., 13 October 2021, LawLex202100005622JBJ: dismissing the unfair competition suit brought by the transferee of the business of the Domaine Lucien Albrecht company, a court of appeal cannot hold that the Albrecht co-litigants cannot be reproached for using the history of the Albrecht family for commercial purposes, since it is their own family history, without investigating whether the use of the history of their family by the said associates for commercial purposes without mentioning the transfer of the business of the Domaine Lucien Albrecht company is not such as to entail, even if unintentionally, a risk of confusion between the products sold under the trademark 'Lucien Albrecht' and those sold by the Albrecht co-litigants.

CA Paris, 7 September 2021, LawLex202100005304JBJ.

Case C-236/08 Google France SARL [2010] ECR p. I-2417, LawLex201100000505JBJ.

Cass. com., 15 November 2011, LawLex201100001829JBJ.

Cass. com., 21 June 2011, LawLex201100001169JBJ.

Cass. com., 31 March 2015, LawLex201500000432JBJ.

Use of an original sign 

Confusion between two products can result from the imitation of one product's brand name. The brand name indicates the origin of goods or services and is the subject of special protection by way of an action for infringement (Art. L. 716-1 Intellectual Property Code). However, as we have seen, the subsidiary character of an action for unfair competition allows actions for IP infringement and unfair competition to be brought concurrently against imitations seeking to create confusion in the minds of clients as to the origin of the product or service . To be unlawful, the imitation must relate to a distinctive sign which represents an essential element of the brand and create a risk of confusion, taking into account the reputation of the alleged victim in his sector of activity . 

On the other hand, the use of common terms which constitute some elements of a registered trademark does not suffice to create a risk of confusion with it . 

Where there are several heads of claim, the separate fault of unfair competition must be established . Thus, there may exist a similarity between the products offered for sale which has been deliberately created in order to take advantage of the erroneous association between the products in question . Similarly, when imitated products are sold at a much lower price than the original products, the sale is constitutive of a distinct act of unfair competition .

This protective provision is supplemented by Article L. 122-2 of the Consumer Code which prohibits comparative advertising which generates confusion between the brands of the advertiser and those of the competitor or which presents of the goods or services as an imitation or a reproduction of a good or service bearing a protected trade mark. See for example Cass. com., 13 December 2005, LawLex200600000211JBJ: the marketing of a range of chocolate bars identified by the names "Noir Éclats" and "Lait Éclats" constitutes an infringement of the competing brand "Éclat Noir", and is likely to create confusion as to the origin of the products in the mind of the averagely attentive consumer. Similarly, a company which borrows the same form and design of yellow and black colors for the bodywork of his high-pressure cleaners as the Kärcher companies , creates a confusion in the minds of the public as to the latter's association with the commercialization of those machines in France, Cass. com., 14 February 2012, LawLex201200000282JBJ.

CA Poitiers, 14 October 2011, LawLex201200000964JBJ: in the case the act of confusion - copied labels - was assessed taking into account the reputation of the company Larzul, a leader on the very limited market of the commercialization of beef tongues. CA Paris, 12 March 2014, LawLex201400000488JBJ, for the expression "formule magique coup d'éclat" which cannot be confused with the trademark "Coup d'éclat" insofar as that expression is perceived by consumers as an advertising slogan and not as an indication of the commercial origin of the product.

But see CA Versailles, 10 November 2009, LawLex201000000628JBJ, stating that the infringing acts likely to create a risk of confusion as to the origin of the products, are necessarily acts of unfair competition by the company distributing the infringing goods.

Cass. com., 12 July 1993, LawLex200200001628JBJ: the brands Benco and Cléo for powered chocolate drinks.

Cass. com., 21 April 1992, LawLex200200001739JBJ; CA Versailles, 2 November 1995, LawLex200200001413JBJ; CA Paris, 6 November 2009, LawLex201000000032JBJ, online sale of perfumes under names protected by trade mark at prices considerably lower than those charged by the selective distribution networks.

Where the trade mark is complex, all its elements are capable of protection on the basis of unfair competition law whether or not they have been specifically listed in the trade mark application. In particular, where one competitor has a registered name and has chosen a product color linked to that name, the choice of an identical color is considered as likely to create confusion in the minds of customers regardless of the fact that the color was not claimed as part of the trade mark . Similarly, the risk of confusion is also increased by placing signs and logos in similar places on similar products, or by using labels with the same geometric format as a trademark-protected label . On the other hand, there is no imitation where these elements are imposed by regulation  or where the copied sign used for different products is not widely recognized .

Cass. com., 24 January 1995, LawLex200200001495JBJ, Cachou Lajaunie (Jaune is the French for yellow and the color of the box was yellow).

Cass. com., 23 November 1993, LawLex200200001611JBJ; 29 March 1994, LawLex200200001582JBJ, choice of the term Cuba as a label of quality for tobacco products thereby creating confusion as to their origin.

Cass. com., 9 April 2002, LawLex200200000540JBJ.

CA Paris, 21 November 2003, LawLex200300004325JBJ.

French Competition Law

56. Imitation of an original brand

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Les notions juridiques connexes

56. Imitation of an original brand

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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