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

Comparative advertising may fall within the scope of the texts relating to trade mark infringement which prohibit the reproduction and use of a trademark or intellectual work without the authorization of its owner. Article L. 132-25 (former Article L. 121-14) of the Consumer Code refers to the penalties provided by Articles L. 716-9 and L. 716-12 of the Intellectual Property Code which punish thes …

Trade mark infringement

Comparative advertising may fall within the scope of the texts relating to trade mark infringement which prohibit the reproduction and use of a trademark or intellectual work without the authorization of its owner. Article L. 132-25 (former Article L. 121-14) of the Consumer Code refers to the penalties provided by Articles L. 716-9 and L. 716-12 of the Intellectual Property Code which punish these acts of infringement with a fine of EUR 400,000 and/or a four-year prison sentence, which may be doubled in case of recidivism.

By definition, comparative advertising involves a reference to a competitor which may be identified by the trade mark which designates its goods or services. Even before the introduction of specific regulations in France, case law sanctioned the use of comparative tables to create the illusion of an equivalence between brand-name fragrances and unbranded perfumes as an infringement . The Law of 18 January 1992 expressly authorized the advertiser to use the competitor's trademark without its consent , provided that its advertising is fair and truthful and is not likely to mislead the consumer . The non-conformity of an advertisement with these requirements deprived the advertiser of the exception of comparative advertising  and exposed it to the sanctions of trade mark infringement . Conversely, a fair and truthful advertisement could use the trade mark of another and avoid any complaint of infringement .

Since its amendment by the Ordinance of 23 August 2001, Article L. 122-1 (former Article L. 121-8) of the Consumer Code lays down the general conditions for the lawfulness of comparative advertising, no longer referring to the use of the trademark. However, Article L. 122-2 (former L. 121-9) specifically relates to the conditions of use of a trademark, trade or service mark, trade name or other distinctive signs of a competitor, or even an appellation of origin or protected geographical indication, in a comparative advertisement. Thus, the use of the signs of others must not make it possible to take undue advantage of the reputation attached to them; discredit or disparage them, create confusion between the trademarks, trade name, other distinctive signs, goods or services of the advertiser and those of a competitor; or present goods or services as an imitation or a reproduction of a good or service enjoying a protected trademark or trade name. Nevertheless, there is every reason to believe that the use of the signs of others is subject both to the general conditions of Article L. 122-1 and the special conditions of Article L. 122-2, as case law seems to admit .

 Cass. com., 16 October 1985, LawLex200300002644JBJ; 17 December 1985, LawLex200300002644JBJ; 2 February 1988, LawLex200300002646JBJ. See also CA Reims, 29 March 1993, LawLex200200001653JBJ.

 The Constitutional Council, in a decision of 15 January 1992 (OJ, January 18, 1992), validated the possibility of using the trademark of the competitor in the context of comparative advertising, considering that such a restriction of property rights was part of a "general mechanism of a general interest purpose", intended to "improve consumer information and stimulate competition in accordance with clearly established rules".

 Former Article 10 of Law of 18 January 1992: "Advertising which compares goods or services by using either the citation or representation of the trademark, trade or service mark of another, or the citation or representation of the trade name, company name or sign of another is only authorized if it is fair, truthful and not likely to mislead the consumer".

 CA Versailles, 15 November 2001, LawLex200200000594JBJ.

 CA Paris, 10 September 1999, LawLex200200000918JBJ, upholding TGI  Paris, 31 May 1996, LawLex200200000918JBJ.

 CA Paris, 18 January 2002, LawLex200300001623JBJ, upholding TGI Paris, 1 April 1998, LawLex200300001343JBJ: reproduction of the logo necessary to identify the competitor.

 CA Paris, 22 June 2005, LawLex200500008933JBJ: the exception to the grievance of trademark infringement under the comparative advertising regime cannot be invoked in the presence of advertising which, although it uses accurate information, does not make an objective comparison.

French Consumer Law

311. Trade mark infringement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

311. Trade mark infringement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise