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

Directive No 2005/29 of 11 May 2005, whose stated purpose is to safeguard the economic interests of consumers against unfair commercial practices of businesses, stresses in its recitals that it also “indirectly protects legitimate businesses from their competitors who do not play by the rules in this directive” . Article 6 thus provides that “a commercial practice shall also be regarded as mislead …

Confusion created with another product, trademark, trade name or other distinguishing mark of a competitor 

Directive No 2005/29 of 11 May 2005, whose stated purpose is to safeguard the economic interests of consumers against unfair commercial practices of businesses, stresses in its recitals that it also “indirectly protects legitimate businesses from their competitors who do not play by the rules in this directive” . Article 6 thus provides that “a commercial practice shall also be regarded as misleading” if it “involves: (a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor”. The Guidance document of the Commission on the implementation of the directive  gives the example of marketing creating confusion: the practice of “copycat” packaging, which “consists in designing the packaging of a product (or its “trade dress” or “get-up") to give it the general "look and feel” of a competing well-known brand (usually the leader on the market)”. According to the Commission, the deceit which consumers can be subject to can take several forms:

i)  absolute confusion: the consumer buys the copied product in confusing it with the branded product;

ii)  deceit on the origin: the consumer recognizes that the copied product is different but believes, due to its similar packaging, that it comes from the same manufacturer; and

iii)  deceit on the equivalence or quality: the consumer recognizes that the copy is different but believes, due to its similar packaging, that the quality is the same or close to that he would have assumed if the packaging had been different.

Law No 2008-3 of 3 January 2008 mentions confusion in Article L. 121-1, I, 1° of the Consumer Code, now Article L. 121-2, 1°. There is no doubt that the criteria for assessing confusion applied in unfair competition law can be transposed to the offense of misleading commercial practice by confusion . The parties' counsel can also usefully refer to the solutions adopted in the area of parasitism .

Before 2008, the courts had already sanctioned on the basis of Article L. 121-1 the confusion created by an operator between its products or services and those of a competitor. Such was the case of purchase orders which had the appearance of an invoice from the public service formerly operated by France Télécom , or advertisements reproducing the form of an invoice issued by the INPI . The fact of creating confusion among popular brands of perfumes and those of the advertiser, by using concordance tables, was also penalized on several occasions as misleading advertising . An operator can also create confusion between two products or services by launching a communication campaign simultaneously with its competitor . Under the new version of the text, it was found that the company which refers to the name of the advertising campaign organized by a third party and in which it participated, to subsequently announce the launch of a similar operation, created confusion on its capacity as initiator of the two events . Similarly, the operator that reserves an abbreviation used as a domain name by a competitor as a keyword with Google, to trigger a commercial link to its own site, misleadingly creates confusion on the origin of the products offered . However, the presentation mode of commercial links in Google's AdWords system does not constitute a source of confusion for the normally informed and reasonably observant internet user as to the distinct origin of the products or services promoted in relation to the terms entered, as the advertising nature of the links in question is clear and the advertiser is identified . Further, where there is no competitive relationship between a commercial undertaking and a legal person governed by private law invested with a public service mission, confusion may not be invoked by the latter . Finally, the identical nature of the photographs used in the advertisements of two traders does not demonstrate an intention to confuse when the images in question, widely used in the sector of activity concerned, were purchased from the same image bank .

Confusion can also arise from imitating the trademark of a competitor. For example, the Court of Appeal of Paris considered that the reproduction of the “NF” mark on the advertising materials of an operator, which cannot claim it, characterizes a misleading commercial practice, as it undermines the NF certification which only certifies the compliance of products with the standards in force after a rigorous and costly procedure . Similarly, the editor of a magazine that uses a figurative trademark registered by the Conseil Supérieur du Notariat generates a risk of confusion for the consumer, led to believe that the publication is authorized by the professional notarial bodies . The dealer who uses the supplier's trademark as a keyword on the search engines and in the URL address of its own site, also creates confusion in the mind of internet users, who think they are on an official site .

Finally, confusion frequently arises from the imitation of the company's customer rallying signs, trade name, logo or brand. Prior to 2008, the courts had, under both misleading advertising and unfair competition, sanctioned the use  of a trade name that could lead to confusion with a large retail chain . Since then, the courts have considered that the adoption of a company name whose acronym is RSI and the sending to self-employed workers proposals to subscribe to an advertising directory presented as invoices, constitutes an unfair commercial practice due to the confusion between the commercial offer and the compulsory affiliation to the health insurance scheme for self-employed workers . Similarly, the company that uses the same trade name as a direct competitor with prior rights on its signs, to trigger for its benefit an advertisement on the Google search engine, adopts, by the confusion it creates on the origin of its products, a misleading commercial practice . Finally, the use of the name “Amélie” by a commercial company for the promotion of health products creates confusion with the Ameli portal of the National Health Insurance Fund, constituting a misleading commercial practice . The use of the term “keluga”, which is very close to the name “kaluga”, for caviar consisting of eggs from a hybrid species of sturgeon derived from a cross between a huso dauricus and another variety, is also misleading .

Some decisions stand apart from the solutions usually adopted in the area of unfair competition and the general principles applicable to misleading commercial practices by considering that the confusion referred to in 1°, of the current Article L. 121-2, must be proven and not just potential . Although it is strongly supported in the letter of the text, which sanctions the confusion and not the risk of confusion, this solution appears open to criticism, as it questions the consistency of the regime of misleading commercial practices which, in general, sanctions not only misleading practices but also those that are “likely” to mislead. It is therefore not surprising that the Court of Cassation considered it necessary to clarify that Article L. 121-2 applies both to proven confusion and to the mere risk of confusion .

See recital 6: "This Directive therefore approximates the laws of the Member States on unfair commercial practices, including unfair advertising, which directly harm consumers' economic interests and thereby indirectly harm the economic interests of legitimate competitors" and 8: "This Directive [...] also indirectly protects legitimate businesses from their competitors who do not play by the rules in this Directive and thus guarantees fair competition in fields coordinated by it".

Guidance of 25 May 2016 (updating and replacing Guidance of 3 December 2009) for the implementation and application of Directive No 2005/29/CE on unfair commercial practices, SWD(2016) 163 final.

 CA Paris, 2 February 2011, LawLex201100000349JBJ; 19 November 2015, LawLex201500001512JBJ.

 CA Paris, 24 January 2017, LawLex201700000226JBJ.

 CA Rennes, 5 November 2013, LawLex201300001690JBJ.

 CA Paris, 22 October 2010, LawLex201100001016JBJ.

 CA Paris, 5 October 2012, LawLex201200002172JBJ.

 CA Paris, 21 March 2013, LawLex201300000479JBJ.

 CA Aix-en-Provence, 19 May 1994, LawLex200200001567JBJ.

 CA Paris, 8 November 2011, LawLex201200000764JBJ.

 CA Paris, 29 November 2013, LawLex201300001704JBJ.

 CA Paris, 28 February 2014, LawLex201400001588JBJ.

See VOGEL, French Competition Law, LawLex/Bruylant, 2020.

CA Paris, 17 January 2020, LawLex202000000071JBJ.

 CA Paris, 4 April 2014, LawLex201400000580JBJ; 11 April 2014, LawLex201400001877JBJ.

Cass. com., 4 October 2016, LawLex201600001718JBJ.

See VOGEL, French Competition Law, LawLex/Bruylant, 2015.

Cass. crim., 23 March 1994, LawLex200300003579JBJ.

 TGI Paris, 18 October 2000, LawLex200300002379JBJ.

Cass. crim., 4 November 2003, LawLex200400000330JBJ; CA Aix-en-Provence, 23 February 1994, LawLex200300001652JBJ; CA Paris, 16 March 2000, LawLex200300002321JBJ; CA Douai, 4 February 2003, LawLex200300002306JBJ.

T. com. Paris, 16 May 2007, LawLex200700000599JBJ: simultaneous dissemination of two advertisements for different services, one of which indicates a price, and the other not, creating confusion on the price of the second service; Cass. crim., February 19, 2008, LawLex201200001077JBJ: the advertiser who seeks to create confusion between its business directory and those of competitors well-established on the market, by disseminating an offer of subscription for a given period where the subscriptions to official directories are renewed and only leaves a very short response time to prospects, although its site is not yet operational, commits the offense of misleading advertising.

  TGI Paris, 12 March 2015, LawLex201500000561JBJ.

 TGI Paris, 5 September 2013, LawLex201300001266JBJ.

French Consumer Law

136. Confusion created with another product, trademark, trade name or other distinguishing mark of a competitor

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136. Confusion created with another product, trademark, trade name or other distinguishing mark of a competitor

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