BRAND AND PARODY
LexInter | February 3, 2013 | 0 Comments

BRAND AND PARODY

THE COURT OF CASSATION, PLENARY ASSEMBLY.

July 12, 2000. Judgment n ° 455. Rejection.

Appeal No. 99-19.005.

CIVILIAN BULLETIN.

 NOTE  Lepage, Agathe ,    JCP G Semaine Juridique (general edition)  , n °   50  ,  13/12/2000  , pp. 2312-2313,  Case law II 10439

On the appeal brought by the company Automobiles Peugeot, whose registered office is at 75, avenue de la Grande Armée, 75116 Paris, in cassation of a judgment rendered on February 9, 1999, and two corrective judgments delivered on May 11 and June 29, 1999 , by the Court of Appeal of Reims, in favor of the company Canal Plus, whose registered office is 85-89, quai André Citroën, 75015 Paris, defendant in the cassation; Automobiles Peugeot has appealed in cassation against the judgment of the Paris Court of Appeal (1st chamber, section A), dated March 14, 1995; This judgment was overturned on April 2, 1997 by the Second Civil Chamber of the Court of Cassation; The case and the parties were referred to the Reims Court of Appeal which, seized of the same case, ruled by judgment of February 9, 1999, then by corrective decisions of May 11 and June 29, 1999, in the same sense as the Paris Court of Appeal for reasons which are in opposition with the doctrine of the judgment of cassation; An appeal having been lodged against the judgment of the Court of Appeal of Reims, the first president, by order of March 23, 2000, referred the cause and the parties to the Plenary Assembly; The plaintiff invokes, before the Plenary Assembly, the two grounds of cassation annexed to this judgment; These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by SCP Gatineau, lawyer for Automobiles Peugeot; A defense was filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer for Canal Plus; appeal from Paris on grounds which are in opposition to the doctrine of the judgment of cassation; An appeal having been lodged against the judgment of the Court of Appeal of Reims, the first president, by order of 23 March 2000, referred the cause and the parties to the Plenary Assembly; The plaintiff invokes, before the Plenary Assembly, the two grounds of cassation annexed to this judgment; These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by SCP Gatineau, lawyer for Automobiles Peugeot; A defense was filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer for Canal Plus; appeal from Paris on grounds which are in opposition to the doctrine of the judgment of cassation; An appeal having been lodged against the judgment of the Court of Appeal of Reims, the first president, by order of March 23, 2000, referred the cause and the parties to the Plenary Assembly; The plaintiff invokes, before the Plenary Assembly, the two grounds of cassation annexed to this judgment; These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by SCP Gatineau, lawyer for Automobiles Peugeot; A defense was filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer for Canal Plus; appeal of Reims, the first president has, by ordinance of March 23, 2000, referred the cause and the parts to the plenary assembly; The plaintiff invokes, before the Plenary Assembly, the two grounds of cassation annexed to this judgment; These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by SCP Gatineau, lawyer for Automobiles Peugeot; A defense was filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer for Canal Plus; appeal of Reims, the first president has, by ordinance of March 23, 2000, referred the cause and the parts to the plenary assembly; The plaintiff invokes, before the Plenary Assembly, the two grounds of cassation annexed to this judgment; These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by SCP Gatineau, lawyer for Automobiles Peugeot; A defense was filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer for Canal Plus; These arguments were formulated in a memorandum filed with the registry of the Court of Cassation by SCP Gatineau, lawyer for Automobiles Peugeot; A defense was filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer for Canal Plus; These arguments were formulated in a brief filed with the registry of the Court of Cassation by SCP Gatineau, lawyer for Automobiles Peugeot; A defense was filed with the registry of the Court of Cassation by SCP Lyon-Caen, Fabiani and Thiriez, lawyer for Canal Plus;

Resources produced by SCP Gatineau, lawyer for the Councils, for the company Automobiles Peugeot;

MEANS ANNEXED to judgment n ° 455 P (PLENARY ASSEMBLY);

FIRST MEANS OF TERMINATION.

The contested judgment of February 9, 1999 is criticized for having noted the presence of the registrar during the deliberation, and to the amending judgment of June 29, 1999 for having ordered the correction of the chapeau of the judgment of February 9 1999.

1-ALORS THAN any court decision must justify by itself its own regularity; that the deliberation is secret, the clerk being able to attend only the debates and the public pronouncement of the decision; that irregular the decision which mentions the presence of the clerk during deliberation, or which does not make it possible to ensure that the deliberation has remained secret; such an irregularity, resulting in the nullity of the decision, is in no way likely to be purged of his vice dirimant by the procedure rectification of material error; that in the present case, by stating in the judgment of February 9, 1999 under the mention composition of the Court during the debates and deliberation, that of registrar: Madame Prudhomme, from which it emerges that the registrar attended the deliberation , without the

2-ALORS THAN the material error can be rectified only to the extent of what the file reveals, or failing that, of what the reason commands; that can not therefore be validly repaired that the error which elements in the file allow to certify that it is really an error of pen; that does not constitute as such a material error repairable the statements relating to the composition of the court if no element likely to establish their inaccuracy has been noted; in the present case, the Court of Appeal, which considered as a rectifiable material error the mention in the judgment of February 9, 1999 attesting to the presence of the clerk at the deliberation, when the reason did not require to consider this defect substantive as a simple material error,

SECOND SUBMISSION OF TERMINATION.

The contested judgment is criticized for having confirmed the judgment pronounced on April 6, 1994 by the Tribunal de Grande Instance of Paris and the company AUTOMOBILES PEUGEOT dismissed all of its claims made before the Commercial Court of Paris.

FOR THE REASONS THAT the company AUTOMOBILES PEUGEOT can claim to protect only its own interests and not those of its shareholders, employees and customers; that it emerges from the 33 incriminated sketches, whose average duration is 30 seconds, and which are distributed over 5 years, that the caricatured character is Mr. CALVET whose puppet deliberately distorts the features and accuses the tics of language; that the object of the caricature is not the automobile company of which he is the CEO but the very person of Mr. CALVET, the aim of the sketches being to provoke the laughter of the televiewers on the occasion of the positions taken by Mr. CALVET , who in his position as CEO of Automotive Companies, has taken very clear and highly publicized positions both in the political, economic and ecological fields; that with regard to a parody of the television news, the fact of quoting such or such nationally known company does not constitute an appropriation of the mark; it should be noted that mockery did not aim the Sté AUTOMOBILES PEUGEOT as a commercial enterprise but the attitudes of its CEO; that the fact that the Company CANAL PLUS is a commercial company cannot have any impact in the present proceedings, the aim pursued by the channel CANAL PLUS being in this case to entertain the viewer and not the manufacture or the marketing of motor vehicles ; that no situation of competition could exist between Sté CANAL PLUS and Sté AUTOMOBILES PEUGEOT whose spheres of activity are diametrically opposed; that the PEUGEOT AUTOMOBILES company also criticizes CANAL PLUS for having, in certain sketches, deliberately denigrated certain elements of its production, and in particular the PEUGEOT 605 vehicle; but that the sentences lent to the puppet of M. CALVET on this motor vehicle are caricatured and could not have any repercussion on the televiewer insofar as they fit into the grotesque context of the Guignols de l’Info; that the CANAL PLUS company has never claimed to be an automotive magazine or to provide technical information; that, moreover, an abusive assimilation cannot be made between the advertising spaces broadcast by CANAL PLUS and the program Les Guignols de l’Info, a satirical newspaper, a parody of television news that, finally, AUTOMOBILES PEUGEOT accuses the Guignols d ‘ to have provided promotional assistance to its direct competitor, the RENAULT Company; but that Renault vehicles have also been the subject of numerous satirical sketches by the Guignols de l’Info; that in addition the sponsorship of Renault which lasted from September 95 to December 95 was not the object of any criticism of the CSA; that during the period during which this Sunday sponsorship lasted, no sequence of the Guignols de l’Info mentioned the Peugeot or Citroën cars.

AND FOR THE REASONS ADOPTED THAT the extracts of the incriminated emission confirm that this emission has a humorous vocation, whatever the ferocity and the provocative character of the processes used; that the scenes represented and the slogans criticized, the repetition of which reveals their outrageous nature, are deprived of any real significance by reason of their excess.

1 – WHEREAS any fact whatsoever of the man which causes damage to others obliges that by the fault of which he arrived to repair it; what constitutes a fault the fact, even for a satirical program, of making repetitively and repeatedly remarks taking on an outrageous and provocative character against the production of a company, and this independently of any intention willful harm; in the present case, the Court of Appeal, which had noted the outrageous, provocative and repeated nature of the remarks made by the program Les Guignols de l’Info against the vehicles produced and marketed by the Company AUTOMOBILES PEUGEOT , without acknowledging the existence of a fault committed by the CANAL PLUS Company,

2 – WHEREAS certain words attributed to the puppet of Mr. CALVET were properly inadmissible, and were expressly and exclusively aimed at the quality of the production of the exhibiting Company, apart from any satire of any political position of Mr. CALVET, such as the sequence where the puppet declares that: the PEUGEOT 605 is a big shit, or the one, recurring, presenting the 605 as the least polluting car, since it only drives behind a tow truck; that the Court of Appeal, which in no way analyzed, as it was however requested, these remarks directed directly against the PEUGEOT products, to furthermore wrongly conclude that the mockery did not target the Company AUTOMOBILES PEUGEOT as a business enterprise, but the attitudes of its CEO,

3 -ALORS THAN the trial judges must dispense with ruling by contradictory reasons; in the present case, the Court of Appeal, which affirmed that the mockery was directed, not against the exhibiting company as a commercial enterprise, but against the attitudes of its CEO, then recognized the existence of remarks directed against the production of Société Automobiles PEUGEOT itself, ruled on contradictory factual grounds, and therefore deprived its decision of reasons, violating article 455 of the New Code of Civil Procedure.

4 -ALORS THAT the judges can not proceed by way of simple affirmation, and rule by reasons of a general nature; in the present case, the Court of Appeal, which confined itself to asserting without explaining why the derogatory sentences attributed to the puppet of Mr CALVET about the 605 could not have any repercussions on the viewer, deprived its decision of legal basis with regard to articles 1382 and following of the Civil Code.

Whereupon, THE COURT, sitting in the Plenary Assembly, in the public hearing of July 7, 2000, where were present: Mr. Canivet, first president, MM. Beauvois, Lemontey, Gélineau-Larrivet, Gomez, Dumas, Buffet, presidents, M. Bargue, rapporteur advisor, M. Renard-Payen, Mlle Fossereau, MM. Guerder, Chemin, Carmet, Tricot, Badi, Ms Mazars, Bezombes, Duvernier, Mr Beyer, advisers, Mr Joinet, Advocate General, Ms Tardi, Chief Registrar;

Whereas, according to the judgment under appeal (Reims, February 9, 1999) delivered on referral after cassation (Civ. 2, April 2, 1997 Bull. N ° 113) that the company Automobiles Peugeot brought proceedings against the company Canal Plus in compensation for the damage that she considered that she had suffered as a result of the remarks attributed to its president, Mr. Jacques Calvet, and which would have denigrated the brand’s products, on the occasion of the broadcast of television programs of the ‘Guignols de l’Info’;

On the first plea, taken in its two branches:

Whereas the company Automobiles Peugeot criticizes the judgment under appeal, which rejected its requests, of having noted the presence of the registrar during the deliberation and of the amending judgment of 29 June 1999 of having ordered the rectification of the references to the initial judgment on this point, then,

1 ° / that by stating in the judgment of February 9, 1999 under the words ‘composition of the Court during the debates and deliberation’, the name of the registrar, from which it appeared that the latter had attended the deliberation, without the corrective judgment of June 29, 1999 being able in any way to rectify this cause of nullity of the decision of February 9, 1999, the court of appeal violated articles 447, 448, 454 and 458 of the new Code of Civil Procedure;

2 ° / that the court of appeal which considered as a rectifiable material error the mention of the judgment of February 9, 1999 attesting the presence of the clerk to the deliberation, when the reason did not require to consider this fundamental defect as a simple material error, and without at any time noting the slightest element in the file making it possible to ensure that it was indeed a material error, and that the deliberation had indeed remained secret, violated article 462 of the new Code of Civil Procedure ;

But whereas it does not follow from the references to the judgment that the clerk, who is part of the jurisdiction, attended the deliberation; that the means which is not founded in its first branch is inadmissible in its second criticizing a rectification superabundant;

And on the second means, taken in its four branches:

Whereas the company Automobiles Peugeot criticizes the judgment for having rejected its requests then, according to the means,

1 ° / that by noting the outrageous, provocative and repeated nature of the remarks made during the disputed issue against the vehicles produced and marketed by Automobiles Peugeot, without acknowledging the existence of a fault committed by the company Canal Plus, the court of appeal failed to draw legal consequences from its own findings and therefore violated article 1382 of the Civil Code;

2 ° / by not analyzing, as he was asked, the remarks lent to the puppet of Mr. Calvet and directed against Peugeot products, to conclude wrongly that the mockery did not target the company Automobiles Peugeot in as a commercial enterprise, but the attitudes of its CEO, the court of appeal deprived its decision of a legal basis with regard to articles 1382 and following of the Civil Code;

3 ° / that by affirming that the mockery was directed, not against the company Automobiles Peugeot, but against the attitudes of its CEO, then by recognizing the existence of remarks directed against the production of the company Automobiles Peugeot, the court of the appeal ruled on contradictory grounds and therefore deprived its decision of grounds;

4 ° / that by confining itself to affirming without explaining why the derogatory sentences attributed to the puppet of Mr. Calvet about the ‘605’ could not have any repercussions on the viewer, the Court of Appeal deprived its legal basis decision with regard to articles 1382 et seq. of the Civil Code;

But given that the judgment notes that the remarks implicating the vehicles of the mark were part of a satirical program broadcast by an audiovisual communication company and could not be dissociated from the caricature made by Mr. Calvet, so that the incriminated remarks fell within the scope of freedom of expression without creating any risk of confusion between reality and the satirical work ; that these findings and statements, the Court of Appeal, responding to conclusions without contradicting itself, was able to deduce that the company Canal Plus had committed no fault and thus legally justified its decision;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company Automobiles Peugeot to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the company Automobiles Peugeot to pay to the company Canal Plus the sum of 20,000 francs;

On the report of Mr. Bargue, advisor, assisted by Mr. Steff, auditor, the observations of the SCP Gatineau, the SCP Lyon-Caen, Fabiani and Thiriez, the conclusions of Mr. Joinet, general counsel, to which the invited parties to do so did not wish to reply, and after having deliberated in accordance with the law; M. CANIVET, first president.

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