LexInter | July 5, 2002 | 0 Comments

Cass. Com . March 27, 2001

On the appeal brought by the company Robbler, a limited liability company, whose registered office is 21, of General Giraud, 94210 Saint-Maur-des-Fossés,

in cassation of a judgment rendered on May 29, 1996 by the Paris Court of Appeal (4th chamber, section A), in favor of the company Sap Polyne, a public limited company, whose registered office is at 77, rue du Temple, 75003 Paris ,

defendant in cassation;

The plaintiff invokes, in support of its appeal, the single plea of ​​cassation annexed to this judgment;

THE COURTYARD,

Notifies Ms. Cariven, liquidator of the company Créations Robbler, in compulsory liquidation, of her resumption of proceedings;

On the single means, taken in its two branches:

Whereas, according to the judgment under appeal (Paris, May 29, 1996), the company SAP Polyne (company Polyne), specializing in the manufacture and sale of Paris souvenirs, is the owner of a complex mark consisting of the stylized Eiffel Tower , surmounted by the inscription “Paris France”, bearing the words “Tour Gustave Eiffel” underneath, trademark registered at the INPI on February 14, 1990 and registered under number 1 575 469 to designate products and services in classes 6 , 8, 18, 21 and 25; that reproaching the company Créations Robbler (company Robbler) to reproduce with identical graphics and the same combination of colors, the sign for which it claimed the double protection of trademark law and copyright, it has, after seizure-infringement , sued this company for trademark infringement and unfair competition; that the court of appeal canceled the trademark filed by the company Polyne, rejected the demand for infringement and condemned the company Robbler for unfair competition;

Whereas the Robbler company complains of its conviction for unfair competition, then according to the means:

1 °) that the action in unfair competition can only prosper as long as there is imitation or servile copy of the objects manufactured by the plaintiff; that in the present case, it follows from the findings of the judgment that the graphic representation of the Eiffel Tower on the objects it offered for sale was different from that appearing on those manufactured by the company Polyne; that by declaring it guilty of unfair competition on the sole ground that it declined its graphics in multiple colors and identical to those used by the company Polyne, whereas it had previously recognized that the graphics were different, the court of appeal did not characterize the servile imitation which alone is likely to establish unfair competition; that in doing so, she violated the

2) the judge can not admit the merits of the action in unfair competition only as long as he notes that the servile imitation was likely to involve the contusion in the mind of the customers; in the present case, none of the reasons for the judgment does not raise the existence of a possible confusion; that declaring it guilty of unfair competition without noting that the alleged imitation had the effect of creating a contusion in the mind of the customers, the Court of Appeal violated Article 1382 of the Civil Code;

But expected, that having retained that by declining its graphics for each of the models concerned in multiple colors and identical to those used by the company Polyne, and by proceeding in the same way for the name Paris and / or the Eiffel Tower which supports, the Robbler company had sought to place itself in the wake of the competitor and to take unfair advantage of the efforts developed by the latter, thus offering, at a lower cost, to an identical clientele a substitute product, the court of appeal was able to deduce from these findings that the company Robbler had committed acts of unfair competition at the origin of the damage suffered by the company Polyne; that the means is founded in no branches;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the Robbler company to pay the costs;

On the report of Mrs. Garnier, advisor, the observations of Mr. Choucroy, lawyer of the company Robbler, the conclusions of Mr. Jobard, general counsel; M. LECLERCQ, oldest adviser, acting as president.


Cass.Com. March 27, 2001. Judgment n ° 638. Rejection.

Appeal No. 95-16.250.

On the appeal brought by Robbler, a limited liability company, whose registered office is 21, boulevard du Général Giraud, 91440 Saint-Maur-des-Fossés,

in cassation of a judgment rendered on March 28, 1995 by the Paris Court of Appeal (4th chamber, section A), in favor of the company Sap Polyne, a public limited company, whose registered office is at 77, rue du Temple, 75003 Paris ,

defendant in cassation;

The plaintiff invokes, in support of its appeal, the three grounds of cassation annexed to this judgment;

THE COURTYARD,

On the report of Mrs. Garnier, advisor, the observations of Mr. Choucroy, lawyer of the company Robbler, of the SCP Lesourd, lawyer of the company Sap Polyne, the conclusions of Mr. Jobard, general counsel;

Notifies Ms. Cariven, liquidator of the company Créations Robbler, in compulsory liquidation, of her resumption of proceedings;

Whereas, according to the judgment under appeal (Paris, March 28, 1995), that the company Créations Robbler (company Robbler), holds a design identity certificate filed with the INPI on May 10, 1990, under the No. 90 3016, and published October 19, 1990; queimant that the company SAP Polyne (company Polyne) marketed “tee-shirts” slavishly reproducing his drawing, the company Robbler, after several seizures-counterfeiting, pursued it judicially in infringement and unfair competition;

On the first plea:

Whereas the company Robbler criticizes the judgment to have rejected its request for infringement of model, then, according to the means, that the infringement is appreciated by the similarities and not by the differences; that the judgment which finds that its creation was characterized by the combination of a set of elements composed of a three-part ribbon surmounted by two spaced branches associated with a dove and the name of Paris, could not, to exclude the counterfeit state that the Polyne company had substituted an Eiffel Tower for the dove, without having regard to the fact that the second drawing reproduced the same combination of elements around a motif also associated with the city of Paris; that the judgment thus tainted its decision with a lack of legal basis with regard to Articles L. 111-1 and L.

But expected that having compared the drawings and sought the resemblances, the Court of Appeal considered that these drawings presented a distinct overall appearance and thus legally justified its decision;

On the second plea:

Whereas the Robbler company still reproaches the judgment for having rejected its claim in unfair competition, then, according to the means, that the mere fact of selling at a lower price, in the same shops, an article competing with its own, reproducing the elements characteristic of its design and likely to lead to confusion with its own was such as to constitute unfair competition; that thus, the Court of Appeal tainted its decision with a lack of legal basis with regard to Article 1382 of the Civil Code;

But whereas the Court of Appeal, which, after having ruled out any risk of confusion between the two models, held that if the two companies carried on the same trade in souvenir articles, the fact for the company Polyne to sell its products at a slightly lower price could not on its own in the absence of acts of denigration or maneuver contrary to commercial practice in order to attract customers, constitute an act of unfair competition, legally justified its decision; that the means is unfounded;

On the third plea:

Whereas the Robbler company finally criticizes the judgment for having ordered it to pay damages for improper seizure, then, according to the means, that the court of appeal could not declare faulty the seizures made without taking into consideration , as it had argued, that these seizures had been caused by the persistence of the Polyne company to distribute the T-shirts argued of interfering; that thus, the Court of Appeal tainted its decision of a lack of legal basis with regard to Article 1382 of the Civil Code;

But given that having noted that from the first seizure, the company Robbler had obtained a copy of the t-shirt argued of infringement and information of an accounting nature, the court of appeal, by deducing that nothing justified the seizure of the stock of the Polyne company, which had caused damage to this company, legally justified its decision; that the means is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the Robbler company to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of the company SAP Polyne;

president, Ms. Garnier, rapporteur advisor, Mr. Métivet, advisor, Mr. Jobard, advocate general, Ms. Arnoux, chamber clerk; M. LECLERCQ, oldest adviser acting as president.

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