INFRINGEMENT ON A WEBSITE AND JURISDICTIONAL

Appeal number: 01-03225
Published in the bulletin

President: M. LEMONTEY

THE COURT OF CASSATION, FIRST CIVIL CHAMBER, delivered the following judgment:Whereas the Champagne Louis Roederer company, considering itself a victim of counterfeiting due to the actions of the Spanish company Castellblanch, which presented on its website located in Spain the promotion of sparkling wines under the brand “Cristal”, noted by deed of ‘judicial officer of June 12, 1998 that this site was, in France, accessible to Internet users who knew the address, then, had the company Castellblanch brought before the tribunal de grande instance of Reims to obtain the cessation of this distribution and compensation for the damage suffered; that the judgment under appeal (Reims, 22 November 2000) rejected the objection of

On the admissibility of the appeal, contested by the defense:

Whereas the Champagne Louis Roederer company raises the inadmissibility of the appeal brought by the Castellblanch company, reason taken from the fact that the court ruled on a procedural exception, which, not terminating the proceedings, is not susceptible appeal in cassation;

But whereas it results from the second paragraph of article 87 of the new Code of civil procedure that the judgments on contradiction of jurisdiction are susceptible of an immediate appeal in cassation; that the appeal is therefore admissible;

On the sole means:

Whereas the Castellblanch company criticizes the judgment under appeal for not having sought or noted that the address of the offending site was in fact disseminated and accessible on French territory, whereas Article 5 3 of the Brussels Convention of 28 September 1968 presupposes that damage has actually occurred in that place and not that it is theoretically possible there, thus depriving its decision of a legal basis;

But given that in matters of counterfeiting, whatever the process used, the option posed by article 5.3 of the San Sebastian Convention of 26 May 1989 applicable in the case, must be understood in this respect. that the victim can bring his action either before the jurisdiction of the State of the place of establishment of the author of the infringement, competent to repair all the damage resulting therefrom, or before the jurisdiction of the Contracting State in which the object of the counterfeit is disseminated, able to know only the damage undergone in that State; thatby admitting the competence of the French courts to hear the prevention and repair of damage suffered in France as a result of the operation of a website in Spain, the court of appeal which found that this site, even if it passive, was accessible on French territory, so that the damage alleged by the sole fact of this dissemination was neither virtual nor possible, legally justified its decision;

FOR THESE REASONS :

DISMISSES the appeal;

Orders the company Castellblanch to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the company Castellblanch to pay the company Champagne Louis Roederer the sum of 3,000 euros;

Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the President in his public hearing on December 9, two thousand and three.