DELOYAL COMPETITION SIMILARITY OF BRANDED PRODUCTS AND RIVALE COMPANY DISORGANIZATION LEGAL

Appeal number: 92-17462
Unpublished titled
President: M. BEZARD
IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, COMMERCIAL, FINANCIAL AND ECONOMIC CHAMBER, delivered the following judgment:

I – On appeal n ° F 92-17.462 brought by the public limited company Communication Media Services (CMS), whose registered office is at 7, rue E. and A. Peugeot in Rueil-Malmaison (Hauts-de-Seine), in cassation of a judgment rendered on May 27, 1992 by the Paris Court of Appeal (4th chamber, section A), in favor of:

1 / the company France Télécom, whose registered office is 6, place d’Alleray in Paris (15th district),

2 / the ODA Announcements Office, whose registered office is 7, avenue de la Cristallerie in Sèvres (Hauts-de-Seine), defendants at the cassation; IN THE PRESENCE of:

1 / of Mr. Alain Bloch, residing at 14, allée de Marly in Rueil-Malmaison (Hauts-de-Seine), taken both in his personal name and in his capacity as director of the company CMS,

2 / of Mr. Vincent Mani, residing at 9, rue de l’Abreuvoir in Courbevoie (Hauts-de-Seine), taken both in his personal name and in his capacity as director of the company CMS,

3 / Mr. Olivier Vincent, residing at 63, boulevard Richard Wallace in Puteaux (Hauts-de-Seine), taken both in his personal name and in his capacity as managing director and administrator of the company CMS,

II – On appeal n ° F 92-17.876 brought by:

1 / Mr. Alain, Roger Bloch, residing in Rueil-Malmaison (Hauts-de-Seine), 14, allée de Marly, acting both in his personal name and as chairman of the board of directors of CMS,

2 / Mr. Michel, Claude Mani, residing in Courbevoie (Hauts-de-Seine), 9, rue de l’Abreuvoir, acting both in his personal name and as director of the company CMS,

3 / Mr. Olivier, Pierre Vincent, residing in Puteaux (Hauts-de-Seine), 63, boulevard Richard Wallace, acting both in his personal name and as managing director and administrator of the company CMS, in cassation of same stop, in favor of:

1 / the Office d’Annonces (ODA), whose head office is at Sèvres (Hauts-de-Seine), 7, avenue de la Cristallerie,

2 / France Télécom, a legal entity governed by public law, whose head office is in Paris (15th district), 6, place d’Alleray, defendants at the cassation; IN THE PRESENCE of: the company Communication Média Service (CMS), whose head office is at Rueil-Malmaison (Hauts-de-Seine), 7, rue E. and A. Peugeot,

The plaintiff in appeal n ° F 92-17.462 invokes in support of her appeal the four grounds of cassation annexed to this judgment:

The applicants in appeal n ° F 92-17.876 invoke in support of their appeals, the five grounds of cassation annexed to this judgment:

THE COURT, in the public hearing of May 31, 1994, where were present: Mr. Bézard, president, Mr. Gomez, advisor rapporteur, MM. Nicot, Leclercq, Léonnet, Poullain, Canivet, advisers, Mr. Lacan, Ms. Geerssen, Mr. Huglo, referendum advisers, Mr. Curti, advocate general, Ms. Arnoux, chamber clerk;

On the report of Councilor Gomez, the observations of SCP Delaporte and Briard, lawyer for Communication Media Services, SCP Lemaître and Monod, lawyer for France Telecom, SCP Lyon-Caen, Fabiani and Thiriez, lawyer of the ODA Announcements Office, of Me Barbey, lawyer of M. Bloch, ex officio, of M. Mani, ex officio, of M. Vincent, ex officio, conclusions of M. Curti, Advocate General , and after having deliberated in accordance with the law;

Joins appeals n ° 92-17.462 and 92-17.876 which attack the same judgment;

Whereas, according to the statements of the judgment under appeal (Paris, May 27, 1992), the company Office d’Annonces, a subsidiary of the companies Havas and France-Télécom, is the exclusive manager for the advertising inserted in the telephone directories, in particular the directory of professionals called The Yellow Pages; that the company France-Télécom collected, after its creation by the law of July 2, 1990, three complex brands Pages Jaunes, registered in 1987, under the numbers 1.430.716, 1.430.417 and 1.430.719, in renewal of original deposits from 1977, and which, apart from some differences in graphic details, consist of a figurative element consisting of a dark square on which stands out the stylized drawing of a directory surmounted by the design of a telephone handset and the name Yellow Pages inscribed under the dark square; that the company Communication Media Services was incorporated in February 1991 by MM. Bloch, Vincent and Mani, all three being shareholders and directors, the first ensuring the chairmanship and the second general management; that they were previously at the service of the company Office d’Annonces, to which Mr. Bloch held, until 1991, both a corporate office as a member of the management board and salaried positions as a deputy general manager; that the company Communication Media Services published, after the suppression, in 1990, of the the legal authorization that existed in this area for directories called Pages Soleil; that Mr. Bloch deposited, in October 1990, the marks Pages Soleil and Pages Jeunes; that the companies Office d’Annonces and France-Télécom have sued, for counterfeiting and unlawful imitation of the Yellow Pages brand and unfair competition, the company Communication Media Services as well as MM. Bloch, Vincent and Mani, who counter-claimed compensation for damage resulting from acts of unfair competition, parasitic behavior and abusive procedure and requested that the descriptive character of the Pages Jaunes mark be established; the Pages Soleil and Pages Jeunes brands; that the companies Office d’Annonces and France-Télécom have sued, for counterfeiting and unlawful imitation of the Yellow Pages brand and unfair competition, the company Communication Media Services as well as MM. Bloch, Vincent and Mani, who counter-claimed compensation for damage resulting from acts of unfair competition, parasitic behavior and abusive procedure and requested that the descriptive character of the Pages Jaunes mark be established; the Pages Soleil and Pages Jeunes brands; that the companies Office d’Annonces and France-Télécom have sued, for counterfeiting and unlawful imitation of the Yellow Pages brand and unfair competition, the company Communication Media Services as well as MM. Bloch, Vincent and Mani, who counter-claimed compensation for damage resulting from acts of unfair competition, parasitic behavior and abusive procedure and requested that the descriptive character of the Pages Jaunes mark be established;

On the first ground of appeals n ° 92-17.462 and 92-17.876:

Whereas the company Communication Media Services and MM. Bloch, Vincent and Mani criticize the judgment for having decided that the Pages Jaunes mark was valid then, according to the appeal, that the mark exclusively composed of terms which can be used to designate a characteristic of the product is of a descriptive character, which after having noted that the expression Pages Jaunes refers to a usual attribute of the objects designated, the court of appeal could not rule out its descriptive character on the simple ground that this attribute would not be essential, without adding to the law a condition that it does not not include, in violation of article 3 of the law of December 31, 1964;

But whereas the judgment noted that the name Pages Jaunes was used for the designation of professional directories and that it designated, literally, sheets of paper of yellow color; that from these findings and assessments, the Court of Appeal retained, on the one hand, that this expression, of which it was not shown that in 1977, it was used in the usual way to designate professional directories, was not, at the date of filing, necessary or generic, and, on the other hand, that targeting a usual but not essential attribute of these objects, it was not descriptive; that thus ruling, the court of appeal legally justified its decision; from where it follows that the means does

On the second plea, taken in its two branches, appeals n ° 92-17.462 and 93-17.876:

Whereas the company Communication Media Services and MM. Bloch, Vincent and Mani criticize the judgment for having decided that the Pages Soleil mark constituted an unlawful imitation of the marks belonging to the company France-Télécom then, according to the appeal, on the one hand, that when a mark composed of a term and a design is complex, the trial judges cannot deduce an infringement of this mark from the only infringement of its denominational part without noting that it constituted its essential characteristic; that by purely and simply disregarding the complex character of the brands of the company France-Telecom, to focus only on their single denominational part without noting that it was the essential characteristic and to deduce an illicit imitation of the attack carried to this only part, the court of appeal violated articles 1 and following of the law of December 31, 1964; then, on the other hand, that the reproduction of a single term of a mark can constitute an infringement thereof only if this term constitutes its characteristic element; that by simply noting that the word “pages” was not devoid of distinctive power to designate directories, without examining whether it constituted the essential element of the Yellow Pages combination, a necessary condition for the reproduction of this single word constitutes a trademark infringement, the Court of Appeal infringed the

But given that the judgment, comparing the Pages Jaunes and Pages Soleil brands, notes that the word Pages, applied to directories had a distinctive power and is reproduced, that the word Soleil evokes the color yellow and that the Pages Soleil brand includes the same number of terms and syllables as the protected mark; that from these findings and assessments, the Court of Appeal held that these multiple similarities between the two marks were likely to cause confusion in the mind of a consumer of average attention not having, under the eyes, both marks; that the court of appeal which, since it noted the similarities between the two marks and the risk of confusion which these similarities were likely to create, the court of appeal, which motivated its decision, could decide that the mark Pagès Soleil constituted an illicit imitation; whence it follows that the means is not founded in any of its branches;

On the third plea, taken in its four branches of appeals n ° 92-17.462 and 92-17.786:

Whereas the company Communication Media Services and MM. Bloch, Vincent and Mani criticize the judgment for having ordered them to pay damages in compensation for acts of unfair competition then, according to the appeal, on the one hand that only the use by former employees and by the new company created by them information or knowledge fraudulently obtained from their former employer may characterize the existence of acts of unfair competition; that it follows from the very terms of the judgment that they were in no way linked to the company Office d’Annonces nor to the company France-Télécom by a non-competition clause or a confidentiality agreement, confined themselves to using information lawfully acquired by them having been associated with the study carried out by Office d’Annonces and France-Télécom; that in judging however that they were guilty of an act of unfair competition by the use of this information lawfully obtained, although it was established that no non-competition clause or agreement of secrecy binds them to the companies Office d’Annonces and France-Télécom, the Court of Appeal violated article 1382 of the Civil Code, together with the law of March 2 and 12, 1791 on the freedom of trade and industry and articles L. 32-1-2 and L. 33-4 of the Post and Telecommunications Code in their wording resulting from the law of December 29, 1990; then, on the other hand, that presumptions are not sufficient, in the absence of proof of poaching maneuvers, to establish the existence of poaching of which a society claims to have been the victim; that it follows from the very terms of the judgment that they have demonstrated “that an extremely tense social climate prevailed within Office d’Annonces, leading to very strong staff dissatisfaction, and in particular a very high turnover among employees. salespeople, each year affecting around 50% of the workforce “; whence it follows that by ruling as it did, without finding evidence of poaching maneuvers, while noting the existence of a tense climate within the company Office d’Annonces leading to a very high turnover of staff and being satisfied with the simultaneity of departures to estimate that it there had been poaching on their part, the Court of Appeal deprived its decision of legal basis with regard to articles 1382 and 1383 of the Civil Code; then, moreover, appeal deprived its decision of legal basis with regard to articles 1382 and 1383 of the Civil Code; then, moreover, appeal deprived its decision of legal basis with regard to articles 1382 and 1383 of the Civil Code; then, moreover,
that a product which does not benefit from any protection arising from industrial property rights in respect of designs and models cannot be the subject of protection by means of unfair competition, except by conferring on its author a monopoly of ‘operation outside of those strictly and restrictively created by the legislator; hence it follows that by upholding the action for unfair competition brought by the companies Office d’Annonces and France-Télécom tending to the protection of the Yellow Pages directory from which it was not alleged that it benefited protection under designs, the Court of Appeal violated Articles 1382 and 1383 of the Civil Code, together the law of 2 and 12 March 1791 on the freedom of commerce and industry; then, finally, that comparative advertising of products relating to objective and accurate elements, which contributes to ensuring the transparency of a market subject to competition, is not illegal; that the companies Office d’Annonces and France-Télécom, while complaining in their appeal writings about what they believed could qualify as denigration, in no way contested the accuracy of the terms and of the data reported in the advertisement of the company Communication Media Services; from where it follows that by judging however that this advertisement had a denigrating character, although no dispute was raised on the

But expected, on the one hand, that the judgment notes that MM. Bloch and Vincent had, by virtue of their positions within the company Office d’Annonces, become aware of studies representing an investment of nearly three million to improve the presentation and distribution of directories, and retains that the company Communication Media Services had used the results of these surveys and research, by contenting itself with only carrying out a sample survey carried out in 1991, that is to say the year following the constitution of the society ; that from these findings and assessments, the Court of Appeal was able to decide that this behavior did not consist of

Whereas, on the other hand, the judgment notes that it was demonstrated by the company Office d’Annonces that more than thirty of its salespeople had been recruited by the company Communication Media Services during the first quarter of 1991 and that almost all belonged to four sales teams operating in the Paris region in the sectors in which the latter published its first directories; that from these findings and assessments, the Court of Appeal held that the company Communication Media Services and its managers could not ignore that the simultaneity of the departures of experienced staff from the sales teams of the company Office d ‘ Ads would disrupt certain sales departments; that deciding that this behavior was constitutive of unfair competition, it legally justified its decision;

Whereas, moreover, the judgment notes that the Pages Soleil directory produced by the company Communication Media Services included the reproduction of several logos created by the company Office d’Annonces, presented significant analogies in the presentation with the directory of the latter and took up the particularities by which the Yellow Pages directory stood out from those produced abroad; that from these findings and assessments, the Court of Appeal held that the similarities thus observed between competing products were not imposed by technical requirements, could not, because of their multiplicity and their concordance, be fortuitous and created a risk of confusion as to the origin of competing products; that the Court of Appeal, which did not grant directories produced by the company Office d’Annonces industrial property protection, was able to decide that this behavior was constitutive of unfair competition;

Whereas, finally, that the judgment notes that the company Communication Media Services distributed a prospectus indicating “you have the possibility of paying more expensive to be seen less”, inserts and posters mentioning the “end of the monopoly of the directories “as well as letters to customers reporting allegedly abusive maneuvers by the companies Offices d’Annonces and France-Télécom to preserve their former monopoly at all costs; that from these findings and appreciations, the Court of Appeal could decide that these allegations constituted a denigration constitutive of unfair competition;

From which it follows that the means is not founded in any of its branches;

On the fourth plea in appeals nos.92-17.462 and 92-17.786:

Whereas the company Communication Media Services and MM. Bloch, Vincent and Mani criticize the judgment for having ordered them to pay damages for acts of unfair competition while, according to the appeal, the action for unfair competition finds its basis in articles 1382 and 1383 of the Civil Code which imply not only the existence of a fault committed by the defendant, but also that of a prejudice suffered by the plaintiff; that consequently, even supposing that a fault of the defendant was established, since it is found that the plaintiff suffered no real prejudice, his action can not prosper; that the Court of Appeal, which noted that the company Office d ‘ Announcements had refrained from requesting an expertise measure expressly noted that the damage invoked did not have the reality alleged by the plaintiffs in the action who did not report, moreover, proof of this damage; from where it follows that by granting the request for compensation made by the companies Office d’Annonces and France-Télécom, the court of appeal deprived its decision of legal basis with regard to articles 1382 and 1383 of the Code civil;

But given that it is by legally justifying its decision that the Court of Appeal, after noting that certain elements of the compensation claim from the companies Office d’Annonces and France-Télécom were not justified, from which it resulted that it retained the existence of the damage resulting for these two companies of the facts of unfair competition committed by the company Communication Media Services and by its leaders, fixed the evaluation; whence it follows that the plea is unfounded;

On the fifth plea, taken in its two branches, of appeal n ° 92-17.876:

Whereas the company Communication Media Services and MM. Bloch, Vincent and Mani criticize the judgment for having condemned them to the payment of damages in compensation for acts of unfair competition then, according to the appeal, on the one hand that the industrial tribunals are competent to settle disputes that may arise between employers and their employees in connection with any employment contract subject to the provisions of the labor code; that it follows that any action based on the violation invoked by the employer or a former employer of an obligation weighing on the employee must be brought before the industrial tribunal; that the facts alleged against MM. Bloch, Vincent and Mani were acts contrary to their duty of loyalty towards their former employer, the company Office d’Annonces, acts committed during the execution of their employment contract, as observed by the company Office d ‘ Announcements in his appeal writings; that the litigation which resulted therefrom, therefore, necessarily within the competence of the industrial tribunal; that holding the contrary, the Court of Appeal violated Article L. 511-1 of the Labor Code; then, on the other hand, that any court seized of a request under its jurisdiction knows, even if they require the interpretation of a contract, of all the means of defense to the exception of those which raise a question falling within the exclusive competence of another jurisdiction; that MM. Bloch, Vincent and Mani had expressly contested the jurisdiction of the Court of Appeal, arguing that the dispute fell within the exclusive jurisdiction and public order of the Labor Court of Boulogne as a result of acts which had been committed during execution of the employment contract; However, by retaining its jurisdiction and consequently refraining from referring the case, as requested, to the sole jurisdiction competent to hear it, the court of appeal violated article 49 of the new Code of civil procedure, together with article L.

But given that the judgment notes that MM. Bloch, Vincent and Mani knowingly contributed to various acts constituting unfair competition, in particular by the parasitic use of studies financed by their former employers and by maneuvers leading to the disorganization of the company of their former employer. , which it resulted that these facts were subsequent to the resolution of the employment contract and did not fall within the jurisdiction of the industrial tribunal; that thus, the court of appeal was able to reject the exception of incompetence; whence it follows that the means is not founded in any of its branches;

On the requests presented on the basis of article 700 of the new Code of Civil Procedure:

Whereas the companies Office d’Annonces and France-Télécom each request the allocation of a sum of twenty thousand francs and for each of the two appeals presently joined by application of this text;

Whereas it is necessary to partially grant this request;

FOR THESE REASONS :

DISMISSES the appeals;

Condemns in solidum the company Communication Media Services and MM. Bloch, Vincent and Mani to pay each of the companies Offices d’Annonces and France-Télécom the sum of twenty thousand francs on the basis of article 700 of the new code of civil procedure;

Orders them to pay the costs and costs of implementing this judgment;

Thus done and judged by the Court of Cassation, Commercial, Financial and Economic Chamber, and pronounced by the President in his public hearing on October 4, nineteen hundred and ninety-four.