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

The concept of fair competition requires undertakings to set their products off from those of competitors  and to avoid acting in a way that creates confusion in the minds of consumers as to competing undertakings and their products. Confusion is one of the oldest and most frequently practised methods of unfair competition. Generally, it involves the imitation of one of the major characteristics b …

Definition

The concept of fair competition requires undertakings to set their products off from those of competitors  and to avoid acting in a way that creates confusion in the minds of consumers as to competing undertakings and their products. Confusion is one of the oldest and most frequently practised methods of unfair competition. Generally, it involves the imitation of one of the major characteristics by which an undertaking is identified, e.g., its business name, logo, packaging, advertising, origin . It is not necessary that the confusion be created intentionally, since carelessness or negligence are actionable under Articles 1240 and 1241 of the Civil Code. In other words there is no bad faith requirement .

Confusion presumes the existence of a direct and close competitive relationship between the parties . This requirement helps to distinguish this type of suit from disparagement or parasitic behavior. Findings of parasitic behavior frequently result from slavish imitation, which creates a risk of confusion. However, parasitic behavior and confusion differ in so far as imitation leading to confusion seeks to confound and draw away customers, while parasitic behavior tries to profit from a competitor's reputation rather than to create confusion in the mind of consumers. In any event an appeal court cannot rule that the slavish ("servile") copy of a product marketed by a competitor does not, in itself, constitute an act of unfair competition without establishing whether there is a risk of confusion between the products at issue .

CA Paris, 22 October 1987, LawLex200200001928JBJ; T. com. Nanterre, 13 April 1995, LawLex200200001462JBJ.

The acts of unfair competition, which are separate from those relating to the live broadcast of the programs of the complainant - sanctioned for IP infringement - are established where, in order to access the latter’s TV catch-up service, the user is continuously redirected to several pages of another website whose logo appears on screen, to the exclusion of any other reference, then forced to watch an advertisement before accessing the replay services of its site, the name of which appears in small letters at the bottom of the window, such that it creates a confusion as to the origin of said services, Cass. 1re civ., 4 July 2019, LawLex201900000924JBJ; CA Versailles, 16 January 2020, LawLex202000000077JBJ, ruling out that the use by companies, to designate a stick vacuum cleaner, of the term Up Top used by the complainants for several years for their stick and unit vacuums, will create a risk of confusion in the minds of the customers as to the origin of the product, since this term is not associated with any brand, sector of activity or product in particular by consumers.

Confusion now also constitutes a misleading commercial practice prohibited under Article L. 121-2 of the Consumer Code and may give rise to criminal liability under Article L. 121-6 of the same code.

CA Paris, 3 April 1998, LawLex200200001144JBJ, the existence different distribution channels does not preclude having a common customer base.

Cass. 1re civ., 9 April 2015, LawLex201500000468JBJ.

French Competition Law

40. Definition

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40. Definition

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