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

Criticism is valid where the information is objective, well-founded and non-biased . Neither is sales puff forbidden where other market operators are not harmed or identifiable. For example, it is not disparaging to claim to be able to deliver a finished or semi-finished product to customers as part of a more comprehensive service than a competitor, who at most delivers a rough version of the product to customers .

Thus, case law accepts that information may be over-inflated as long as it does not mislead consumers . If a radio station repeatedly claims to be the No. 1 local radio station in a given location and region, in a variety of media, this constitutes a method of advertising and promoting itself in an exaggerated, even emphatic way, which does not necessarily lead listeners to classify it as the most listened-to radio station, and can result in a manifestly unlawful disturbance when the mention is accompanied by the number of listeners concerned and an audience measurement, likely to influence the listener, the public and/or the advertiser, even though they do not correspond to any real audience figures . A comparison can be fanciful or humorous  provided it is not harmful to image or reputation . Comparing a beer with a water sport in a humorous way, for example, does not disparage the sport . On the other hand, deriding a competitor, even if in an amusing way, aims to discredit that party with regard to potential customers . 

Information is considered as pejorative or malicious when the assessment it makes of a professional activity is one-sided and does not come from a person outside the profession merely seeking to provide the public with accurate information on the pros and cons of different distribution models (wholesaler and retailer), but from a direct or even indirect competitor who criticizes the business practices of another economic operator, without expressing any reservations as to its own practices . Thus ,a letter sent to the contracting body of a local authority by a competitor of the successful bidder, falsely informing it of the latter's indictment for fraud, constitutes an act of disparagement . An email sent to customers and posted on the internet, criticizing online private sales under the header “Angry about internet private sales: they are laughing at you”, qualifying this method of distribution as a “very dangerous turn for the whole of our profession” and accusing the suppliers of participating in “commercial chaos” and “cheating on” distributors, constitutes a disparagement insofar as the terms used go beyond an objective presentation of a specific distribution method and are pejorative . Information which is accurate but is not provided in general terms can amount to disparagement when intended to discredit a competitor , its company or products . Disparagement is indisputable where a comparison between the respective merits of products goes beyond an objective and moderate critique and instead expresses a clear intention to deride, denigrate and discredit the competing products , in particular where the undertaking in question is accused of incompetence and lack of technical ability , or subjected to false allegations about its products or services , or where a party disseminates inaccurate information about another's performances  or issues warnings intended to discredit . If the publication of a comment critical of services or features on a website does not constitute disparagement, it becomes so when its author has not used the services or features criticized and when it is done with the intention of causing harm . Disparagement is also constituted for the spreading of rumors about a competitor or his products . In particular, spreading rumors in the press about an alleged slowing down of the subsidiary of its competitor at a time when the latter was planning to sell characterizes an act of disparagement of an even more serious nature as it is likely to reduce interest from potential buyers of the subsidiary and result in negative consequences on the stock-market trading of the parent . 

Denouncing criminal behavior by a competitor may also constitute disparagement , as does the sending of letters informing customers of the introduction of an infringement action against a competitor, even before any decision on the merits has been rendered . This is also true where an undertaking informs a competitor's customers of the supposed bankruptcy of the latter  or of a legal dispute between them , or where it exposes in the business press its intention of buying out a competing firm and insinuates that the latter's future is compromised , publishes a judgment against another that is not final , or sends a competitor's customers a copy of a writ issued against it many years before falsely claiming the unfair competition suit was the subject of a definitive ruling in its favor . The Court of Cassation considers that although the victim does not commit an offense by publishing on its website the operative part of the judgment for infringement against a competitor, such publication would be unlawful were it to go further than the limits of the operative part of that judgment . The fact that an undertaking sends a letter to the head of an automobile distribution group and client of its competitor, reporting the fact that the latter had been convicted of unfair competition and thus intentionally distorting the court's ruling, at a time when the group is likely to change its CRM solutions provider, constitutes an act of disparagement, even if a corrigendum was sent to the group subsequently . Similarly, it is wrong for an undertaking to have posted online the operative part of a judgment of conviction for unfair competition in its favor, by adding to the name of the convicted undertaking the name of the well-known trademark under which the latter markets its products, since that reference necessarily increased the impact of the advertisement given to the judgment, beyond the limits resulting from the actual terms of the judgment . 

By contrast, the publication on the internet of a communication on a court ruling which reproduces partial extracts of it is not disparaging insofar as the communication by an operator of a decision concerning that same operator, regardless of whether or not it is final, is a right, where it does not include any contentious or disparaging commentary even if the published extracts are favorable only towards the author of the communication .  Likewise, warning distributors about the risks incurred in marketing servile copies of a trade-marked model without naming any perpetrator is not an act of disparagement , insofar as it is merely a general and preventive reminder of the law. Challenging the validity of a competitor's patent is also not in itself an act of disparagement .

Until now, although disparagement could justify a right to reply, the reply could not itself be pejorative . Thus, a radio station, which, in response to an advertisement published by its competitor making a non-objective comparison of the characteristics of their listeners, is guilty of unlawful and disparaging comparative advertising for use of the slogan: “68.8% of  NRJ listeners are over 24”, relating to the allegedly older listeners of its competitor, as it had no humorous element and aimed to highlight in an advertisement for its own radio station that it was more popular with young listeners . However, the Court of Cassation recently appeared more open to the right to reply: an undertaking is not justified in accusing its competitor of disparagement for reacting in response to the unfair attitude of its employees who have disseminated inaccurate information .

Cass. com., 15 January 2002, LawLex200200000568JBJ: information given in measured terms on the objective properties of a product, designed in particular to remedy the consequences of the use of another non-competing product; CA Paris, 20 November 1998, LawLex200200001051JBJ: offer of free publication of advertisements having already been published in a rival newspaper.

CA Besançon, 7 February 2017, LawLex201700000303JBJ.

TGI Strasbourg, 9 March 2010, LawLex201000000559JBJ.

Cass. com., 12 May 2004, LawLex200400001177JBJ; 28 September 2010, LawLex201000001066JBJ; CA Paris, 20 October 2010, LawLex201000001291JBJ, finding disparagement for a call for a boycott of a competitor accused of being “dubious”; 25 November 2016, LawLex201600002001JBJ: public dissemination of information likely to discredit a competitor among one of its customers by highlighting the imminence of an inspection by the Autorité des marchés financiers (AMF), due to serious facts calling into question its ability to manage real estate collective investment schemes; 7 May 2019, LawLex201900000622JBJ: comments addressed directly to students, stating that their school can no longer teach Caycedian sophrology, cannot constitute disparagement aimed at turning them away from their school, since the information that their course is no longer recognized in France is objective. 

CA Poitiers, 12 December 2023, LawLex202300014605JBJ: a manufacturer's calling into question the quality of competing products constitutes disparagement.

CA Paris, 12 February 1999, LawLex200200001004JBJ; 24 September 2019, LawLex201900001144JBJ: a  funeral network operator commits disparagement when it uses, as a trademark and in association with other elements, the same “X” name, renowned in this field, as that of an earlier competing network, while running advertisements on youtube or in newspapers presenting its members, as the only real “X” - implying that all other companies are fake “X” - and as the cheapest, using slogans such as “the real X is the cheapest”, “the real X = a cheaper price” or “the real X, in the interest of families”.

CA Versailles, 9 September 1999, LawLex200200000920JBJ. 

CA Paris, 27 May 1992, LawLex200200001730JBJ, on false information transmitted by using a competitor's documents; 9 December 1992, LawLex200200001679JBJ; T. com. Paris, 14 February 1996, LawLex200200001388JBJ; CA Versailles, 30 January 1997, LawLex200200001298JBJ, and on appeal, Cass. com., 12 January 1999, LawLex200200001028JBJ, on a message attributing to a fresh jam false qualities of being a sterilized conserved product; CA Paris, 17 November 2000, on calling into question the standards, the price and the method of distribution of a telephone directory; Cass. com., 23 April 2003, LawLex200300001665JBJ, on an advertisement that accentuates its own positive characteristics and minimizes its faults, while doing the opposite with respect to the competing product; 17 March 2009, LawLex200900001117JBJ, allegations made by a competitor which have no other purpose than to cast discredit on the cognacs marketed by the complainant - qualified as “water but ordinary and flat” - and which were made for the purpose of appropriating its customers; TGI Nanterre, 1 February 2010, LawLex201000000137JBJ: the promotion, through advertisements, of professional auto repairers belonging to the Renault network to the detriment of other professional repairers, which are presented in a grotesque manner as incompetent when faced with advanced technologies of ordinary car parts, such as a hand brake and a key of the Renault brand, causes unlawful disorder; TGI Paris, 18 June 2010, LawLex201000000829JBJ, holding unlawful the dissemination of false information to potential customers of a company on the method of distribution of programs and their dubious origin. 

T. com. Paris, 3 May 2002, LawLex200200000442JBJ.

Cass. com., 12 May 2004, LawLex200400001177JBJ; CA Versailles, 15 December 2015, LawLex201500001851JBJ: even if an insurance brokerage firm, bound by an obligation to advise its clients, is justified in warning them of the prejudicial and disadvantageous nature of their decisions, it cannot, in letters or e-mails addressed to them, describe the behavior of a named competitor as the pilfering of its clientele, nor discredit the quality of the advice and services of the latter, without being guilty of disparagement.

CA Dijon, 20 March 2018, LawLex201800001402JBJ, holding that the comments “very overrated restaurant, all pomp and circumstance and very little on the plate, the best-stocked plate being the one on the bill”, published on the widely consulted  website for the Yellow Pages which are aimed at an establishment bearing a prestigious name with a view to dissuading potential customers from visiting it, even though the author could not have visited it since the establishment was not open, constitute a clear disparagement.

CA Versailles, 15 November 2011, LawLex201100000650JBJ: creating a particularly disparaging rumor about a competitor's product, with the use of insidious methods, in a professional field which is extremely sensitive to the implementation of the principle of precaution, is unfair; Cf., Cass. com.., 28 June 2023, LawLex202300008644JBJ: two letters referring to allegations made by an undertaking to two of its competitor's customers, to the effect that the latter was encountering difficulties with the manufacture of one of its products, mentioned by name, and that it was likely to stop production, are not sufficient to constitute disparagement, since they only refer to vague and reported statements, even if they were true; CA Paris, 11 December 2023, LawLex202300014356JBJ: a single exchange of messages addressed to a pupil, containing vague statements about the future of the school he attends, is insufficient to characterize an act of disparagement, even if it emanates from a former training advisor who has joined a rival school.

Cass. crim., 5 April 1990; CA Paris, 26 September 1991, LawLex200200001789JBJ; CA Paris, 17 March 1998, LawLex200200001155JBJ, on the necessarily emphatic character of advertising; Cass. com., 24 March 1998, for an insurance agent offering “lower rates for allegedly higher cover”; CA Versailles, 1 June 1997, LawLex200001241JBJ; CA Paris, 1 October 1997, LawLex200001218JBJ: claiming to be “number one” is not in itself reprehensible; 15 November 2019, LawLex201900001404JBJ: advertising a car seat using the descriptive and laudatory formulas “180° rotating seat for simplified child installation” and “revolutionary pivoting car seat! “is not at fault, but corresponds to what is customary in the promotion of a technical product.

CA Paris, 3 January 2011, LawLex201100001088JBJ.

CA Paris, 29 March 1993, LawLex200200001652JBJ: Accusations of unlawful competitive practices against distribution companies operating on the same market; 3 April 1995, LawLex200200001468JBJ: accusing a competitor of IP infringement; 14 April 1995, LawLex200200001461JBJ: calling the honesty of a trader into question; TGI Paris, 5 October 2001, LawLex200200000493JBJ; Cass. com., 31 May 2002, LawLex200200000482JBJ: disparagement is established where the operator claims that his competitor is in cessation of payments to encourage its customers to terminate ongoing contracts; 8 December 1992, LawLex200200001681JBJ, a company complaining of patent infringement whereas the patent had not been filed; CA Paris, 17 February 1993, LawLex200200001666JBJ, an  exclusive importer incorrectly claiming that the items sold outside the network are counterfeit; 16 May 2003, LawLex200300003914JBJ: making public, by e-mail and on a website, the alleged infringement by a competitor, where no judgment has established those facts, is an act of disparagement; Cass. com., 31 March 2004, LawLex200400000828JBJ, an undertaking accusing a competitor of design infringement, parasitic behavior and poaching employees without following up the accusations with a lawsuit brought on the merits or by losing the case brought; 12 May 2004, LawLex200400001063JBJ, holding that the revealing of a lawsuit to customers when it did not give rise to a judicial decision, is disparagement; CA Paris, 2 December 2011, LawLex201100001929JBJ, disparaging nature of the posting online of the decision declaring the judicial sentence of a competitor accompanied by the words “cheating can be very expensive”.

Cass. com., 22 October 2013, LawLex201300001542JBJ; 29 September 2015, LawLex201500001187JBJ; 6 October 2015, LawLex201500001236JBJ: insurance brokers informing customers of the proceedings between them and their agent and insinuating that the latter would not pay all the premiums that he was holding; see also Cass. 1re civ., 19 June 2013, LawLex201300001014JBJ: a court of appeal cannot find that the revelation by the head of a network of florists to its members of the legal dispute between it and a former member is not actionable for the reason that no excessive term has been employed despite the animosity between the parties, insofar as such a revelation made to customers before any court decision has been rendered is in itself disparaging; CA Colmar, 17 September 2014, LawLex201400000952JBJ; CA Paris, 9 March 2017, LawLex201700000500JBJ, specifying that denouncing one's competitor as an infringer to the clientele where no legal action has been taken constitutes disparagement without this characterization first requiring an assessment of whether the alleged infringement is proven; CA Paris, 17 January 2024, LawLex202400000521JBJ: the letter sent by the manager of a company to the fund that had invested in the capital of a competitor, and to its auditor, informing them of the forthcoming legal proceedings between the two companies, presenting, despite the risks inherent in all legal proceedings, its own harm to the tune of EUR 1,580,000, and by questioning its competitor's ability to pay the damages claimed, is disparaging, given that this information, in the absence of the slightest doubt as to the latter's financial capacities, is aimed exclusively at harming its competitor by destabilizing its shareholder base.

Cass. com., 22 February 2005, LawLex200500004546JBJ; CA Lyon, 22 January 2015, LawLex201500000122JBJ, holding that an undertaking commits an act of disparagement when, under the guise of obtaining information - which it acknowledges could have been obtained elsewhere - and in so doing repeats rumors of which it does not propose to show any evidence, insinuates to a partner of its competitor that the latter's very existence is threatened.

CA Paris, 31 October 2000, LawLex200200000716JBJ, an undertaking denouncing its competitor for having appropriated its name. But see CA Paris, 26 March 2008, LawLex200900003260JBJ, upheld by Cass. com., 15 September 2009, LawLex200900003251JBJ, ruling out disparagement where weekly publication Le Point forwarded to persons from other publications - the Nouvel Observateur and L'Express - a letter of termination of an advertising contract in which it accuses the agency in question of having informed its clients, potential advertisers, of a bundling operation making reference to all the subscribers of the three publications, asserting the editorial backing of the three  magazines, whereas it had not obtained their agreement; Cass. 1re civ., 19 June 2013, LawLex201300001014JBJ, holding that it is of no relevance that the words describing a legal dispute contained no excessive language insofar as revealing the existence of a legal dispute to customers before any court decision has been rendered in itself constitutes disparagement. But see CA Paris, 2 December 2011, LawLex201100001961JBJ, ruling out the claim of disparagement brought against an undertaking which had informed a distribution company  that one of its suppliers was exploiting a patent for carrier bags which was subject to proceedings for annulment. 

CA Paris, 3 June 2011, LawLex201100001088JBJ.

CA Paris, 8 November 1993, LawLex200200001612JBJ; see also relating to the communication of information concerning legal proceedings: T. com. Paris, 18 May 1994, LawLex200200001570JBJ; CA Paris, 26 October 1994, LawLex200200001527JBJ; CA Aix-en-Provence, 13 March 1997, LawLex200200001286JBJ; CA Paris, 11 March 1998, LawLex200200001162JBJ; Cass. com., 12 May 1994, LawLex200400001063JBJ.

CA Paris, 20 November 2014, LawLex201400001331JBJ.

Cass. com., 18 October 2017, LawLex201700001760JBJ, adding that the provisions of Article L. 615-7-1 of the Intellectual Property Code providing that in the event of conviction for infringement, the court may order any appropriate measure of publicizing the judgment, according to the terms and conditions it lays down and at the expense of the infringer, do not exclude the right for the victim, except in the case of abuse, to carry out at its own cost any other publication of the ruling in its favor.

Cass. com., 13 March 2019, LawLex201900000340JBJ.

CA Rennes, 19 September 2023, LawLex202300012007JBJ.

CA Paris, 21 May 2015, LawLex201500000682JBJ; 

CA Paris, 17 October 2013, LawLex201300001504JBJ.

Cass. com., 12 February 2013, LawLex201300000176JBJ.

Cass. com., 9 July 2013, LawLex201300001146JBJ; CA Paris, 21 May 2015, LawLex201500000682JBJ: a company that has been convicted of unfair competition for the benefit of another undertaking is not entitled to reproach the latter for putting the operative part of the judgment online on its website, since, as the judgment has been made public, it is open to the undertaking that is a party to the judgment to publicize its existence and content by any means of its choosing, subject to answering for any abuse it may have made of this freedom; Cass. com., 27 September 2023, LawLex202300012006JBJ: a company could not claim that a competitor had committed disparagement against it by sending its customers letters referring to the infringement action it had allegedly brought against it, since the competitor's letters, which were merely intended to inform its resellers objectively that it had brought a trademark infringement action against some of its products, were free of disparagement.

CA Paris, 6 November 1990, LawLex200200001849JBJ; 20 December 1990, LawLex200200001837JBJ; 15 December 1994, LawLex200200001505JBJ.

CA Paris, 22 June 2005, LawLex200500008933JBJ: also see CA Dijon, 24 June 2021, LawLex202100004070JBJ: the fact that an undertaking has been the victim of an act of unfair competition by a business partner does not entitle it to retaliate by means of measures that are themselves unfair, such as acts of disparagement.

Cass. com., 4 December 2019, LawLex201900001495JBJ, considering that an undertaking is not entitled to accuse its competitor of disparagement through the disclosure of false information likely to harm its image when the latter intervened in response to the attitude of its own employees at the initiative of the dissemination of erroneous information on the future of the partnership binding the parties, and that, consequently, it is at the origin of the harm it is alleging.

TGI Paris, 19 September 1990, LawLex200200001857JBJ, pun about a brand in a scene in a film; CA Versailles, 15 March 1991, LawLex200200001821JBJ, ad comparing beer to water sports; CA Rennes, 17 March 1992, LawLex200200001746JBJ, “ads kill”, associated with the logo of a brand of cigarettes; Cass. 2e civ., 2 April 1997, LawLex200200001277JBJ, “Guignols de l'info” (satirical TV puppet show); CA Versailles, 26 June 1997, LawLex200200001241JBJ: “Gyma, j'imagine”; Cass. Ass. plén., 12 July 2000, LawLex200200000750JBJ, “Guignols de l'info”.

CA Paris, 26 September 1991, LawLex200200001789JBJ, ironic and misleading accusation; 14 April 1995, LawLex200200001461JBJ, questioning the honesty of a trader in a comic article; Cass. com., 21 May 1996, LawLex200200001359JBJ, sarcastic promotional film showing a caricatural symbolic image of the competitor.

CA Versailles, 15 March 1991, LawLex200200001821JBJ. 

CA Paris, 19 May 1994, LawLex200200001566JBJ; Cass. com., 21 May 1996, LawLex200200001359JBJ: presentation of competitor in a film in black and white as being totally decrepit; CA Paris, 10 September 1999, LawLex200200000918JBJ, competitor represented as a wavering bowling pin; CA Versailles, 2 June 2004, LawLex200400002211JBJ, ruling as disparaging an advertising message intended for the promotion of a “low sugar” product whereas in spite of its humorous intent, it presents sugar as a ridiculous and begging character.

CA Paris, 20 February 1992, LawLex200200001752JBJ; T. com. Paris, 15 January 2013, LawLex201300000040JBJ, for a telephone operator who, in an interview, used the terms “consumer credit”, “usurious interest rates of 300 to 400 %”, “without submitting to the legal constraints”, going beyond the level of criticism permitted, and gave a value judgment damaging to the image of the competitor, who has been accused without evidence of illegal actions.

CA Lyon, 12 May 2016, LawLex201600000959JBJ.

89. Information of a pejorative or malicious nature