27 january 2020

Confusion: Assessment of similarities
The use of the overall design of the vacuum cleaner which combines the positioning of the motor unit at the handle, a steel tube, a rectangular brush and push buttons which are functional, non-characteristic elements, combined with the association of two bright metallic colors and arranged in a general stick form, which is already known, is not sufficient to generate a risk of confusion in the minds of the public.
CA Versailles, 16 January 2020, LawLex2020000077JBJ

Disparagement: Defamation
Remarks about the quality of the products and services of a franchise network and about the alleged unlawful practices and collusions attributable to it, made by the president of a competing company on the internet and accessible to a large audience on both social media and in the customer reviews page of a commercial website, in a blog, a video, an article, and in emails addressed to influential people in the sector concerned, followed by a quiz at a trade show in which the questions clearly incite pejorative answers concerning the easily identifiable competitor, constitute acts of disparagement, not defamation.
Court of Cassation, commercial chamber, LawLex2020000073JBJ

Parasitism: Lack of necessity of risk of confusion
Even where there is no risk of confusion, by adopting the design and a very similar color scheme to the two models of vacuum cleaners at issue, the defendant undertakings deliberately place themselves in the wake of the plaintiff undertaking which has made substantial investments in terms of design and communications.
CA Versailles, 16 January 2020, LawLex2020000077JBJ

Payment deadlines: Administrative fine
By significantly lowering the maximum level of the fines incurred by undertakings, the Hamon Law has introduced a softer criminal law which may apply to excessive payment terms established prior to its entry into force.
CAA Marseille, 13 January 2020, LawLex2020000066JBJ

Unfair terms between professionals: Scope ratione materiae
Article L. 442-1 of the Commercial Code does not apply to credit institutions and finance companies in respect of their banking transactions, which are covered by the specific provisions of the Monetary and Financial Code.
Court of Cassation, commercial chamber, 15 January 2020, LawLex2020000076JBJ

Sudden termination of established commercial relationship: Established nature of relationship
The annual renegotiation of contractual relations within the framework of the written agreement does not have the effect of jeopardizing an otherwise established commercial relationship.
CA Paris, 16 January 2020, LawLex2020000064JBJ

Sudden termination of established commercial relationship: Statutory notice period
Although Article L. 442-1, II (former art. L. 442-6, I, 5°) of the Commercial Code does not apply to commercial agency contracts, the benefit arising therefrom can be claimed by the intermediary whose contract is able to be reclassified as a common interest mandate.
CA Paris, 16 January 2020, LawLex2020000061JBJ

Sudden termination of established commercial relationship: Maintaining contractual relations
Where a supplier abruptly ceases to supply a distributor due to the failure to reach an agreement during the annual negotiations in December, a penalty of EUR 460,000 per day until deliveries are resumed is incurred at the previous years’ prices pending an agreement to be reached no later than March.
Paris Commercial Court, 16 January 2020, LawLex2020000059JBJ

Anticompetitive agreements: Direct evidence
General terms and conditions of sale in which the supplier imposes its prices on wholesalers and retailers, constitute direct evidence of a vertical price-fixing agreement, making it unnecessary to verify whether they have been substantially applied by the resellers.
CA Paris, 16 January 2020, LawLex2020000058JBJ

Abuse of dominant position: Refusal to sell or provide service
An undertaking with a market share of 75 to 90% on the French cola market which, failing to reach an agreement with a large retailer at the annual renegotiation of their contract, suspends deliveries from 2 January 2020 with an announcement to that effect only 9 days before, thus causing a stock shortage and the risk of loss of customers, commits an abuse of dominant position due to its refusal to sell and the sudden termination of an established commercial relationship.
Paris Commercial Court, 16 January 2020, LawLex2020000059JBJ

Court-ordered investigation: Judicial warrant
Refraining from bidding for the award of a public contract constitutes economically irrational behavior on the part of an undertaking in the sector, which would normally have an interest in trying to maximize its turnover, and creates a rebuttable presumption of participation in a concerted practice.
CA Paris, 15 January 2020 LawLex2020000065JBJ

Merger control: Indirect control
A concentration that exceeds neither the European thresholds defined in Article 1 of Regulation No 139/2004 nor the thresholds defined in Article L. 430-2 of the French Commercial Code and cannot be subject to a preliminary review except in the event the Authority refers it to the Commission on the basis of Article 22 of the regulation, does not in itself constitute an abuse of dominant position in application of Articles 102 TFEU and L. 420-2 of the Commercial Code.
Competition Authority, 16 January 2020, LawLex2020000074JBJ

Merger control: Indirect control
Even if a concentration that exceeds neither the European thresholds defined in Article 1 of Regulation No 139/2004 nor the French thresholds under Article L. 430-2 of the Commercial Code does not, in itself, constitute an abuse of dominant position pursuant to Articles 102 of the TFEU and L. 420-2 of the Commercial Code, the behaviors implemented by a company in a dominant position, which are separable from the concentration in itself but are enabled by it, may be subject to the control of anticompetitive practices and be found, if such is the case, to constitute an abuse of dominant position on the basis of Articles L. 420-2 of the Commercial Code or 102 of the TFEU.
Competition Authority, 16 January 2020, LawLex2020000074JBJ

Merger control: De-merger
On the basis of Article L. 430-9 of the Commercial Code, a concentration which would have enabled the abuse of dominant position may be called into question, even if it was authorized ex ante, if the undertaking concerned is found to be guilty of abusive exploitation of a dominant position or of a state of economic dependence, even though the concentration which allowed the abuses does not in itself constitute an abuse.
Competition Authority, 16 January 2020, LawLex2020000074JBJ