COMPETITION • FRENCH LAW • UNFAIR COMPETITION
Confusion is one of the oldest and most frequently practiced methods of unfair competition. Generally, it involves the imitation of one of the major characteristics by which an undertaking is identified (trade name, sign, logo, advertising) or of competing products (packaging, confusion about origin, trademark). The confusion does not have to be created intentionally, since carelessness or negligence are actionable under Articles 1240 and 1241 of the Civil Code.
Confusion presumes the existence of a direct and close competitive relationship. This condition distinguishes this type of suit from economic parasitism, the boundary with which it is not always easy to draw. Findings of parasitic behavior frequently result from slavish imitation, which creates a risk of confusion. Parasitism and confusion differ, however, because imitation seeks to confuse and divert customers, whereas copying indicates the parasite’s desire to ride in the wake of the parasite and to benefit from its reputation, without necessarily seeking to create confusion in the minds of a common clientele.
Imitation in itself does not constitute unfair competition. There must be a sufficient resemblance so as to create confusion or a risk of confusion in the minds of consumers. The courts must assess whether, in view of the similarities, the overall impression is such as to create a risk of ambiguity in the minds of customers who do not have the two products directly in front of them. When assessing the existence of confusion or risk of confusion, the courts refer to the typical averagely vigilant and attentive customer. The courts consider the averagely attentive customer to be akin to the “not particularly vigilant” consumer who retains an overall impression without having the two products simultaneously in front of him/her. When the product is intended for business clients, the risk of confusion is reduced or even non-existent. The risk of confusion is also eliminated when similar products are intended for well-informed amateurs.
To capture the customers of a competitor, an operator will imitate the distinctive signs of the undertaking – logo, sign, commercial name, corporate name… – in order to mislead the consumer as to the identity of the person it is targeting. An undertaking may freely choose the elements that identify it: sign, logo, trade name or corporate name, but this choice must not infringe the rights acquired by another operator. The protection depends on the originality of the name in the economic sector under consideration and the geographical proximity of competitors. However, originality or distinctiveness is not a condition for the success of an action in unfair competition, but is only a possible criterion for assessing liability and the risk of confusion. Whether the imitation is deliberate or unconscious, the usurpation of a trade name is unfair when there is a real risk of confusion. The protection of a trade name against any risk of confusion applies to all uses and all media. Thus, the use of a domain name that includes the trade name or corporate name of a third party, in order to designate a website offering competing products, constitutes an act of unfair competition. An operator cannot use another’s name to designate a service allowing direct online access to information on its products. In the same way, the reproduction of a third party’s domain name is unlawful, as is the reproduction of a trade name or a company name.
Commercial documents, the interior decor of the store, and advertising also contribute to distinguishing an undertaking from its competitors and to building its image. The unfair imitation of such elements can be sanctioned on the basis of confusion.
Finally, confusion can be maintained with the competitor’s products, notably by imitating their general presentation, their packaging, wrapping or labels. It is not necessary that the copy be slavish. It is sufficient that the similarities are sufficient to cause confusion, provided of course that the copied product is original. The attempt to create confusion between the products can result in the copying of the trademark that covers the products. Both the wrongful imitation and the wrongful use of the trademark constitute a fault. All the elements that make up the trademark can be protected on the basis of unfair competition, even if not claimed in the trademark registration application.
