This book provides a wide-ranging review of the European rules relating to distribution: exclusive purchase and exclusive supply, exclusive and selective distribution, motor vehicle distribution, franchises, commercial agents.

French Distribution Law

The reputation of the trademark, which is an important aspect in attracting customers, is often coveted by competitors not yet enjoying the same high standing. It is tempting to take advantage for a lesser cost of someone else's efforts, by taking over its reputation without necessarily trying to create confusion in the consumers' mind. Selective distribution is particularly favorable to this type of practice as it mainly concerns quality products covered by a well-known brand. Network protection can be guaranteed through provisions of the Intellectual Property Code. Article L. 713-2 of the Intellectual Property Code prohibits the reproduction, use or affixing of a trademark without the owner's authorization.

Under the rules applicable before their codification , the Criminal Chamber of the Court of Cassation described as an unlawful use of a trademark the selling of branded products without the authorization of the owner - the network creator, unless the products had been lawfully purchased . According to the Criminal Chamber, the mere fact of selling authentic products in breach of a selective distribution network did not constitute an unlawful use of the trademark , where the Commercial Chamber considered that the mere sale of a contract good by a non-authorized distributor was sufficient to characterize an unlawful use of the brand , even though the goods had been acquired lawfully . The trademark owner was further entitled to object to the fact that the goods bearing that brand could be circulated otherwise than in order to be sold .

Since the coming into force of the Intellectual Property Code, transposing the EU rules relating to trademark law, the use without authorization of a trademark, either for commercial or advertising purposes, is an act of infringement where there is confusion or deceit of the customers. Thus, a company who sells unlawfully labeled clothes at a lower price and in a mediocre setting, in proximity to a competitor who is a member of the distribution network, is guilty of unlawful use of the trademark . Likewise, an independent door-to-door seller marketing copies of big-name branded perfumes online via eBay using comparative tables is guilty of trade mark infringement justifying an award of damages to the perfumers . Only uses contrary to the purpose of the distinctive sign, such as distinction, promotion and guarantee of the origin of the products concerned, may be penalized. Thus a website which presents its products as imitations of well-known perfumes commits acts of trademark infringement by reproducing the brands of their manufacturers, which damages the communications function of those brands . The  head of a selective distribution network for luxury perfumery and cosmetic products may also bring an IP infringement action against a second-hand goods store that resells samples bearing the reference “free sample/cannot be sold” which excludes the goods from being “put on the market” within the meaning of Article L. 713-4 of the Intellectual Property Code, or that resells cosmetics without their original packaging . On the other hand, the network head is precluded from bringing an infringement action against an individual who sold products, which were lawfully purchased, to that second-hand store, insofar as this act does not characterize use of the mark “in the course of trade” .

Former Article 422-2(2) of the Criminal Code.

Cass. crim., 24 February 1987, LawLex200200005703JBJ; 18 May 1987, LawLex200200005705JBJ: the authorized distributor who sells products in place other than that provided for in the selective distribution contract does not commit an unlawful use of brand where the products have been lawfully purchased.

CA Rennes, 25 February 2020, LawLex202000000294JBJ.

Cass. crim., 16 June 1993, LawLex200200006011JBJ.

Cass. com., 23 February 1993, LawLex200200005977JBJ: a non-authorized reseller who sells authentic goods without the authorization of the brand owner unlawfully uses the brand.

Cass. com., 21 June 1994, LawLex200200001556JBJ.

Cass. com., 2 July 1996, LawLex200200005587JBJ, for the circulation of goods as part of a lottery.

CA Angers, 19 September 1994, LawLex200200001546JBJ.

CA Paris, 4 January 2012, LawLex201200000004JBJ.

TGI Paris, 11 April 2014, LawLex201400000788JBJ.

Cass. com., 6 December 2023, LawLex202300014274JBJ, upholding CA Rennes, 25 February 2020, LawLex202000000294JBJ.

225. Unlawful use of the trademark.