French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

An advertising agency which breaches its duty to advise may be sued as a third-party defendant  in the context of an infringement action brought against the advertiser by the holder of the rights in a trademark, patent, design or copyright.  Joint and several liability of the agency and the advertiser has been found for the reproduction without permission of a model of chair , an architectural des …

Guarantee by advertiser in event of action for IP infringement 

The organization of an advertising campaign is the responsibility of the agency. Depending on the nature of its role, its duty will fall under either an obligation to achieve a specific result ("obligation de résultat") or a best efforts obligation ("obligation de moyens"). The agency commissioned to materially run the campaign has a duty to achieve a specific result. Thus, an agency which has not verified the proper functioning of answering machines set up for the promotion of savings products in the context of a TV campaign , makes mistakes with regard to estimates , fails to obtain the authorizations required to fly kites  or selects defective promotional items , breaches its duty to achieve a result. The agency must also ensure the quality of the content of advertising documents .

However, where the contract contains uncertainties, the agency's duty becomes a best efforts obligation. The agency is bound to make all the efforts described in Article 1197 (former Article 1137) of the Civil Code where it does not have full control of the operation , or where it has merely been commissioned with a one-off order . The agency must therefore run the campaign with all the necessary care and in particular must ensure it does not present an unappealing image of the advertiser's products . The lack of due diligence on the part of the agency in its duty to advise shows its bad faith and incurs its liability .

CA Paris, 25 October 1991, LawLex200300001400JBJ, upheld by Cass. com., 14 December 1993, LawLex200300002900JBJ.

CA Paris, 18 February 1994, LawLex200300002993JBJ.

CA Versailles, 1 March 2002, LawLex200300003225JBJ.

Cass. com., 1 March 2005, LawLex200500007405JBJ, upholding CA Versailles, 19 June 2003, LawLex200500007430JBJ.

CA Paris, 18 February 1994, LawLex200300002933JBJ: mistakes in the conception of game participation slips; 21 October 1994, LawLex200300003046JBJ: poor quality of printing and number of colors used; 1 December 2004, LawLex200600001211JBJ: lack of legibility of certain letters following the increase in size of the document on the final proof. 

CA Reims, 9 December 1998, LawLex200300003179JBJ: the lack of complete control of the operation is characterized by the involvement of several operators in the design and production of advertising documents; CA Paris, 25 October 1991, LawLex200300001400JBJ, relative to the content of the advertising message, its presentation (duration of film), the choice of channels and programming context, the agency was only bound by a best efforts obligation.

CA Lyon, 24 February 2011, LawLex201200002232JBJ.

Cass. com., 9 October 1990, LawLex200300002899JBJ, upholding CA Paris, 7 October 1988, LawLex200300001381JBJ.

CA Paris, 4 March 1997, LawLex200300003192JBJ.

Organization of campaign

As a trader, an advertising agency has a duty to provide advice to the advertiser. Unless it has expressly provided for an obligation to achieve a specific result, only a best efforts obligation is required of an advertising agency with respect to the success and the impact of the advertising campaign entrusted to it . An agency cannot guarantee a result which by its nature is uncertain . If the campaign fails to produces any positive outcome, it falls to the advertiser to prove that the agency did not make the appropriate effort . In effect, the lack of impact of an advertising campaign can be due to reasons other than failings on the part of the agency . The advertiser must establish, inter alia, that the work carried out was totally unsuited to its purpose in respect of the graphics, formulation, size, frequency and media used . Where an agency has properly met the orders placed by the advertiser , or made available familiar and quality advertising media , it is blameless and must be paid for services rendered irrespective of their intrinsic qualities or of whether the client was ultimately satisfied . In addition, the agency may escape liability or have the offense attenuated when the advertiser itself committed serious errors when giving recommendations  or contributed to the alleged harm by not publicizing the campaign, making it impossible to measure its impact on consumers .

Cass. com., 24 June 1986, LawLex200300002898JBJ; CA Paris, 27 June  1991, LawLex200300001396JBJ; 7 July 1994, LawLex200300003175JBJ; 9 December 2011, LawLex201200002210JBJ.

CA Paris, 21 October 1994, LawLex200300003046JBJ.

CA Rouen, 25 April 1991, LawLex200300003904JBJ.

Cass. com.,  9 May 2000, LawLex200300002924JBJ.

CA Douai, 3 April 2007, LawLex201200000847JBJ.

CA Paris, 9 December 2011, LawLex201200002210JBJ.

CA Versailles, 8 February 1991, LawLex200300003487JBJ.

CA Paris, 29 September 1995, LawLex200300001541JBJ;CA Versailles, 7 November 2002, LawLex200300000980JBJ.

CA Paris, 21 June 1994, LawLex200300003096JBJ.

CA Versailles, 7 November 2002, LawLex200300000980JBJ.

Commercial success of campaign

Under the duty to advise, the agency is required to be particularly rigorous in terms of compliance with intellectual property rights. In effect, the Court of Cassation has imposed a duty of legal certainty on agencies with regard to advertisers . The agency must therefore ensure that the rights of third parties are not infringed prior to the dissemination of the message. This obligation is breached if the agency creates an advertising document which reproduces an architectural model without permission or without stating the name of the designer , if it fails to ensure that the graphics proposed can be used without the risk of prosecution or a civil claim for damages for infringement  or if it fails to submit campaign taglines to the INPI (Institut national de la propriété industrielle) to find out if they are already registered . The agency must also propose advertising material which is copyright-free, or obtain the consent of the right holder for the reproduction of his/her work where the latter is protected by IP rights . Specifically, it must notify the advertiser of the fact that the provision of a photograph that it has invoiced does not include a transfer right  or verify the lawfulness of the transfer of rights over the photographs used . The advertising agency's liability is clearly incurred when it knowingly infringes the rights of others , especially where it presents illustrations copied from the campaign of another agency for another product as its own creation .

Cass. com., 30 November 1993, LawLex200300002902JBJ.

Cass. com., 20 November 1990, LawLex200300002901JBJ.

Cass. com., 24 June 1986, LawLex200300002898JBJ; CA Paris, 21 May 2003, LawLex200300004018JBJ; 10 June 2016, LawLex201600001110JBJ.

CA Paris, 3 June 2015, LawLex201500001089JBJ.

Cass. com., 30 November 1993, LawLex200300002902JBJ, cited above: the agency has a strict duty as a trader to obtain the necessary permission for the designer of the model chosen in order to ensure that the advertising model can be used without risk by the advertiser.

CA Versailles, 14 January 1999, LawLex200300001480JBJ.

Cass. 1re civ., 6 February 2001, LawLex200300002929JBJ.

TGI Paris, 27 April 2001, LawLex200300003350JBJ; TGI Nanterre, 7 March 2005, LawLex200500005275JBJ.

CA Paris, 11 May 2001, LawLex200300003097JBJ.

Intellectual property rights

An advertising agency which breaches its duty to advise may be sued as a third-party defendant  in the context of an infringement action brought against the advertiser by the holder of the rights in a trademark, patent, design or copyright.  Joint and several liability of the agency and the advertiser has been found for the reproduction without permission of a model of chair , an architectural design  or a photo of flowerbeds in a garden . An agency may be called upon to guarantee the advertiser against any legal ruling when it has not ensured that the assignment of the exploitation rights of the creation used  or the duration of said assignment  are lawful or where it has committed copyright infringements in respect of a shoe model , a graphic design  or a protected sign . It is also fully liable where it bills the client for a service “including technical costs and rights” . On the other hand, the agency and the advertiser can be held jointly liable when they have knowingly copied a protected design  or digitally modified the work of a photographer without permission . Moreover, in the absence of any legal action, and consequently of any current impairment of the enjoyment of the campaign, the mere fact that a third party claims copyright in a garment used in advertising for a perfume is not sufficient to characterize a failure by the agency to fulfill its obligation to deliver .

Cass. 1re civ., 12 December 2000, LawLex200300002933JBJ and previously in the same case, TGI Paris, 18 October 1995, LawLex200300001421JBJ.

TGI Paris, 13 March 1996, LawLex200300001425JBJ.

CA Paris, 4 June 1997, LawLex200300003140JBJ.

CA Paris, 13 June 2019, LawLex201900000801JBJ.

TGI Paris, 10 May 2002, LawLex200300002145JBJ.

CA Paris, 29 April 1998, LawLex200300003141JBJ upheld by Cass. 1re civ., 6 February 2001, LawLex200300002929JBJ.

CA Paris, 6 December 2000, LawLex200300002145JBJ.

CA Paris, 6 October 2004, LawLex200500004300JBJ.

CA Paris, 21 May 2003, LawLex200300004018JBJ.

TGI Nanterre, 7 March 2005, LawLex200500005275JBJ.

Cass. 1re civ., 7 March 2000, LawLex200300002928JBJ.

French Consumer Law

40. Guarantee by advertiser in event of action for IP infringement

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Les notions juridiques connexes

40. Guarantee by advertiser in event of action for IP infringement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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