THE COURT OF CASSATION, COMMERCIAL CHAMBER
LexInter | August 26, 2002 | 0 Comments

THE COURT OF CASSATION, COMMERCIAL CHAMBER

On the appeal brought by the National Council of the Order of Pharmacists (CNOP), whose seat is 89, rue de la Faisanderie, 75116 Paris,

in cassation of a judgment rendered on November 27, 1998 by the Paris Court of Appeal (1st chamber, section B), in favor of: 1 ° / of the company Nantes nord distribution, a public limited company, headquartered at La Conraie, 44800 Orvault,

2 ° / of the cooperative company Groupements d’échats des Centers Leclerc (SC GALEC), a public limited company, with registered office at 52, rue Camille Desmoulins, 92000 Issy les Moulineaux,

3 ° / of the Association of Leclerc distribution centers (ACD LEC), whose registered office is 149, rue Saint-Honoré, 75001 Paris,

4 ° / of the Attorney General at the Paris Court of Appeal, domiciled in this capacity at 4, boulevard du Palais, 75004 Paris,

defendants in cassation;

The applicant invokes, in support of his appeal, the single means of cassation annexed to this judgment;

Medium produced by the SCP Célice, Blancpain and Soltner, lawyer with the Councils for the Council of the national order of pharmacists;

MEANS OF TERMINATION

The plea accuses the judgment under appeal of having, in confirmation of the judgment undertaken, dismissed the CNOP of all of its requests made against the Company NANTES NORD DISTRIBUTION and based on unfair competition, parasitism and false advertising;

ON THE REASONS THAT, on the one hand the establishment of the parapharmacy space LECLERC, delimited, isolated from the rest of the store, responds to the specific nature of cosmetic and personal hygiene products which are offered for sale and to the requirements imposed by the manufacturers of these products, as to their distribution; that the selective distribution contracts paid out for the debates, the validity of which was recognized by a judgment of the Court of Appeal of PARIS of January 26, 1989, govern according to precise criteria, the development and installation of points of sale: closed space, neat, identifiable by the consumer and sufficiently far from busy areas, likely to cause nuisance; it should also be noted that this method of arrangement as the colors chosen are not reserved exclusively for pharmacies; that thus the magazine entitled MLP of October 7, 1995, devotes a file to the arrangement of the pharmacies of pharmacy, from where it appears that the arrangements specific to the pharmacies evolved towards a presentation of type “large surfaces”; that the photographs illustrating this article show that the color green is not predominant in the arrangements made; that the logo incriminated, in the form of L of color white on green background, which evokes for the consumer, membership in the circuit of large distribution LECLERC, does not present any similarity with the green cross, collective mark which holds the CNOP; that, therefore, the respondent cannot be criticized for to have offered for sale parapharmacy products in this environment devoid of originality, unsuitable by its banality to characterize the typical setting of a dispensary, over the design of which it had no latitude, given the constraints that arise imposed on her; that, on the other hand, selective distribution contracts also require the presence at the point of sale of competent staff, able to fulfill a mission of consumer advice and, more particularly, a person specializing in the field of health , with knowledge in cosmetology, biology, dermatology or pharmacy, leading to a scientific university degree; that article L.514 of the Public Health Code provides that no one can practice the profession of pharmacist if he does not meet the conditions which he enumerates and in particular to be holder of the diploma of doctor in pharmacy or pharmacist and to be registered with the order of pharmacists; but that holders of a pharmacy diploma who do not practice the profession of pharmacist consisting in preparing and dispensing drugs or similar products are not subject to the provisions of the Public Health Code governing this profession, and in particular to the obligation to register with the order of pharmacists; that it is not demonstrated that the company NANTES NORD DISTRIBUTION, whose activity consists in selling cosmetic products and personal hygiene, and to advise the purchasers of these, proposed products under the monopoly of pharmacists; that he cannot therefore be reproached for to have employed, to present and sell its products outside the framework of a dispensary, employees, holders of a doctorate in pharmacy, and consequently qualified to exercise this job, although not registered with the order of pharmacists; that, above all, the use on the signs and on the coats of the employees of the term “pharmacist” instead of “doctor in pharmacy”, since it corresponds to the same diploma, is not likely to induce in error on the part of the client on the qualification of the person providing information;

appropriate the reputation for quality and safety attached to the monopoly of the distribution of drugs entrusted by the legislator to pharmacists and to take advantage of the connection to the specificity of the activity of the latter; that the Court of Appeal was thus invited to make a concrete judgment on all the elements invoked to assess the parasitic and competitive behavior of the LECLERC Center; that nevertheless, by examining each of these elements taken in isolation to dismiss the CNOP from all of its requests, the trial judges deprived their decision of a legal basis with regard to articles 1382 and 1383 of the Civil Code, together article L.121-1 of the Consumer Code; Appel was thus invited to make a concrete judgment on all the elements invoked to assess the parasitic and competitive behavior of the LECLERC Center; that nevertheless, by examining each of these elements taken in isolation to dismiss the CNOP from all of its requests, the trial judges deprived their decision of a legal basis with regard to articles 1382 and 1383 of the Civil Code, together article L.121-1 of the Consumer Code; Appel was thus invited to make a concrete judgment on all the elements invoked to assess the parasitic and competitive behavior of the LECLERC Center; that nevertheless, by examining each of these elements taken in isolation to dismiss the CNOP from all of its requests, the trial judges deprived their decision of a legal basis with regard to articles 1382 and 1383 of the Civil Code, together article L.121-1 of the Consumer Code;

THEN, ON THE OTHER HAND, THAT by invoking the selective distribution contracts concluded between the manufacturers of cosmetic and personal hygiene products and the NANTES NORD DISTRIBUTION Company to explain the multiplication by the latter of external signs similar to those which are used by pharmacists and justify the behavior of the said company to third parties, the Court of Appeal violated article 1165 of the Civil Code;

THAT, and in any event, after noting that the selective distribution contracts ordered “according to precise criteria, the layout and installation of points of sale: closed space, neat, identifiable by the consumer and sufficiently far from busy areas, likely to cause nuisance “and after having also noted that these contracts required” the presence on the points of sale of a competent staff, able to fulfill a mission of advice to the consumer and, more particularly, a specialized person in the field of health, with knowledge in cosmetology, biology, dermatology or pharmacy, sanctioned by a university degree of a scientific nature “, the Court of Appeal, which does not specify how these specifications required the LECLERC Center to use only external signs similar to those used by pharmacists, deprives its decision of any legal basis with regard to articles 1382 and 1383 of the Civil Code , together article L.121-1 of the Consumer Code;

THEN, THIRD PART, THAT no one can practice the profession of pharmacist, and, by the same fact, present himself as a pharmacist, if he does not meet the conditions provided for by article L.514 of the Public Health Code, relating to the required diploma, the nationality of the person concerned and the need to be registered with the order of pharmacists; that it follows from the findings of the judgment under appeal that, to present and sell its products, the company NANTES NORD DISTRIBUTION had a panel affixed at the entrance to the space nicknamed “drugstore” with the inscription “pharmacist advice” and had the term “pharmacist” written on the coats of the employees; that by considering that

THEN, FINALLY, AND IN THE SAME ORDER OF IDEAS, THAT by admitting the possibility of the existence of a category of persons who can present themselves to the public as “pharmacists” and who, under the sole pretext that they neither prepare nor dispense drugs or similar products, “are not subject to the provisions of the Public Health Code governing the profession” of pharmacist, which means that they are not subject to any of the obligations imposed on pharmacists by this Code and relating in particular to guarantees of professional morality, diplomas, nationality, the possibility of concluding certain agreements between pharmacists and members of certain professions and the regulation of advertising, the Court of Appeal violates the provisions ofpublic order of Articles L.511 et seq. of the Public Health Code, together with Article L.121-1 of the Consumer Code.

THE COURTYARD,

On the single means, taken in its five branches:

Whereas, according to the judgment under appeal (Paris, November 27, 1998), that the company Nantes nord distribution operates in the shopping arcade of a hypermarket under the Leclerc sign, a space for the sale of cosmetic, hygiene and dietetic products; considering that the presentation of this sales area including in particular the use of the term pharmacist constituted unfair competition, parasitism and false advertising, the National Council of the Order of Pharmacists (CNOP) brought proceedings against the company Nantes nord distribution, for the purposes of being ordered to cease making reference to the status of pharmacist and to pay him damages;

Whereas the CNOP criticizes the judgment for having rejected its requests, then, according to the means:

appropriate the reputation for quality and safety attached to the monopoly of the distribution of drugs entrusted by the legislator to pharmacists and to take advantage of the connection to the specificity of the activity of the latter; that the court of appeal was thus invited to make a concrete judgment on all the elements invoked to appreciate the behavior parasitic and competitive Center Leclerc; that by proceeding, nevertheless, to the examination of each of these elements taken in isolation to dismiss the CNOP of all of its requests, the trial judges deprived their decision of a legal basis with regard to articles 1382 and 1383 of the Code civil, together Article L. 121-l of the Consumer Code; appeal was thus invited to make a concrete judgment on all the elements invoked to assess the parasitic and competitive behavior of the Leclerc Center; that by proceeding, nevertheless, to the examination of each of these elements taken in isolation to dismiss the CNOP of all its requests, the trial judges deprived their decision of a legal basis with regard to articles 1382 and 1383 of the Code civil, together Article L. 121-l of the Consumer Code; appeal was thus invited to make a concrete judgment on all the elements invoked to assess the parasitic and competitive behavior of the Leclerc Center; that by proceeding, nevertheless, to the examination of each of these elements taken in isolation to dismiss the CNOP of all of its requests, the trial judges deprived their decision of a legal basis with regard to articles 1382 and 1383 of the Code civil, together Article L. 121-l of the Consumer Code;

2 ° / by invoking the selective distribution contracts concluded between the manufacturers of cosmetic and personal hygiene products and the company Nantes nord distribution to explain the multiplication by the latter of external signs similar to those used by the pharmacists and justify the behavior of the said company to third parties, the Court of Appeal violated article 1165 of the Civil Code;

3 ° / that in any event, after having noted that the selective distribution contracts ordered “according to precise criteria, the development and installation of the points of sale: closed space, neat, identifiable by the consumer and sufficiently away from busy areas likely to cause nuisance “and after having also noted that these contracts required” the presence on the points of sale of a competent staff, able to fulfill a mission of advice to the consumer and, more particularly, a person specialized in the field of health, endowed with knowledge in cosmetology, biology, dermatology or pharmacy, sanctioned by a university degree of scientific nature “, the court of appeal, which does not specify how these specifications required the Center Leclerc to only use external signs similar to those used by pharmacists, deprives its decision of any legal basis with regard to articles 1382 and 1383 of the Civil Code , together article L. 121-l of the Consumer Code;

4 ° / that no one can practice the profession of pharmacist, and, by the same fact, present himself as a pharmacist, if he does not meet the conditions provided for by article L. 514 of the Public Health Code, relating to the diploma required, the nationality of the person concerned and the need to be registered with the order of pharmacists; that it follows from the findings of the judgment under appeal that, in order to present and sell its products, the company Nantes Nord Distribution had affixed at the entrance to the space nicknamed “parapharmacy” a panel bearing the inscription “pharmacist advice” and had the term “pharmacist” written on the coats of the employees; that considering that the use of this term by the aforementioned company and its employees was regular under the pretext that the holders of

5 ° / that by admitting the possibility of the existence of a category of people who can present themselves to the public as “pharmacists” and who, under the sole pretext that they do not prepare or dispense drugs or similar products , “are not subject to the provisions of the Public Health Code governing the profession” of pharmacist, which means that they are not subject to any of the obligations imposed on pharmacists by this Code and relating in particular to guarantees of professional morality, diplomas, nationality, the possibility of concluding certain agreements between pharmacists and members of certain professions and the regulation of advertising, the court of appeal violates the public order provisions of Articles L. 511 et seq. Of the Public Health Code, together with Article L. 121-l of the Consumer Code;

But expected, in the first place, that the judgment notes that the arrangement method and the colors chosen by the sales area criticized were not reserved exclusively for pharmacies and notes that the specific arrangements for pharmacies have evolved into a presentation of the “supermarkets” type in which the color green is not predominant, that the offending logo, in the shape of an L of white color on a green background, which evokes for the consumer, belonging to the Leclerc mass distribution circuit, does not has no similarity with the green cross, a collective mark owned by the CNOP, that the term pharmacist and that of doctor of pharmacy correspond to the same diploma; that the judgment holds that this environment devoid of originality, is improper by its banality to characterize the typical framework of a dispensary, and that the use of the term pharmacist is not likely to mislead the customer as to the qualification of the person providing information; that in the state of these findings and statements, from which it emerges that none of the connecting signs invoked by the CNOP was likely to deceive customers, excluding their cumulative effect from producing this effect, the Court of Appeal legally justified its decision, apart from reasons overabundants criticized by the second branch and the third branch of the means;

Whereas, secondly, article L. 514-1 of the Public Health Code, which governs the conditions for exercising the profession of pharmacist, does not include any regulation of the title of pharmacist; that it follows that the court of appeal was able to retain that the mention of pharmacist affixed on the signs and on the coats of the employees corresponded to the indication of the diploma of pharmacist equivalent to that of doctor of pharmacy without disregarding the article L. 514-1 of the aforementioned Public Health Code;

Whereas, in the third place, having noted that it had not been demonstrated that the company Nantes nord distribution offered products falling within the monopoly of pharmacists, the court of appeal, which rightly states that the persons holding ” a doctorate in pharmacy or pharmacist can, without being registered with the order of pharmacists, exercise a job consisting in selling cosmetic and personal hygiene products, which do not fall under this monopoly, and that the use on the signs and coats of the employees of the term “pharmacist” instead of “doctor of pharmacy”, since it corresponds to the same diploma, is not likely to mislead the customer on the qualification of the one who has it. inform, do notviolated any of the texts referred to in the fifth part of the plea;

That it follows from there that the means is not founded in any of its branches;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the National Council of the Order of Pharmacists to pay the costs.

On the report of Ms. Champalaune, referendum advisor, the observations of the SCP Célice, Blancpain and Soltner, lawyer of the National Council of the Order of Pharmacists, of the SCP Tiffreau, lawyer of the company Nantes Nord Distribution, of the cooperative company Groupements purchases of Leclerc Centers (SC GALEC), of the Association of Leclerc Distribution Centers (ACD LEC), the conclusions of Mr. Lafortune, General Counsel; M. DUMAS, President.

 

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