Unfair Competition
ROME II: What law will apply to acts of unfair competition?
Written by Véronique Bichon Monday, 13 July 2009 13:23
EC Regulation no. 867/2007, also referred to as "Rome II", became effective on January 11, 2009. The aim of this Regulation is to establish an objective and harmonized method to determine the applicable law in matter of non-contractual obligations.
Up to now, failing such harmonization, and given the differences between national laws and practices amongst the Member States of the UE, the parties to a litigation could be tempted to refer their dispute to the court that would apply the law that would be most favorable to them (this practice is called "forum shopping").
Online reproduction of general terms of sales, and economic parasitism
Written by Charline Mesonero Monday, 13 July 2009 11:36
In reproducing and making identical use - without any financial compensation – of the general terms of sale of French company VENTES PRIVEES.COM, in order to use them within the framework of a competing business activity, French company Kalypso sought to benefit from the former company's experience, know-how and investments, and hence was convicted, not for infringement or unfair competition, but parasitism. Saving the cost of a legal counsel can be fairly expensive!
Court of Appeal of Paris, 4ème Ch., Sect. A - September 24, 2008 n°073336 – Vente privé.com v/ Kalypso économique.
Unfair competition
Written by Véronique Bichon Tuesday, 19 August 2008 12:29
Under French practice, unfair competition is an alternative or a cumulative ground before the Courts. It serves a different purpose than trademark counterfeiting and is useful when trademark monopoly proves vain, provided some circumstances apply.
On January 18, 2008, the Paris Court of First Instance determined whether the trademark LA COLLINE infringed the prior trademark LA PRAIRIE for cosmetics. The Court considered that the common structure and reference to the nature of both signs were not sufficient to create a likelihood of confusion given the overall differences between them.
Whereas rejecting the infringement action, the Court ruled unfair competition. The plaintiff intended to take advantage of the investments realized by the plaintiff by using a very similar marketing strategy. This was observed through the same reference to the nature and to Switzerland, an unnecessary reference to “cellular cosmetics” on which the claimant based all its communication, a communication on the luxurious character and the important scientific and technologic researches made to obtain the products and similarities between the packaging (shape and colours).
Each element was clearly not proper to an individual protection. But the meeting of all these marketing strategy elements served to have the situation ceased on the basis of unfair competition. Consequences of such condemnation are in practice similar to those of an infringement action. In this proceeding, even if the mark LA COLLINE was considered available, the Court banned the use of the wording “La Colline” and of the litigious packagings. Unfair competition is therefore an important resource in the defence of concepts and marketing strategies taking into account their economic value.
Unfair jump on butter clumps
Written by Jean Philippe Bresson Thursday, 19 June 2008 13:29
The surrounding circumstances relating thereto were also taken into account. The plaintiff’s butter clumps had indeed been elected milk product of year. Also, the highly similar packaging and presentations lead some supermarkets to distribute the sued party products rather than the plaintiff’s products. This decision intervened after a five years legal battle on the competent Court.
