THE ANONYMOUS COMPANY DREAMNEX
THE FACTS
The DREAMNEX Company is an Internet “start-up”, incorporated on August 27, 1999. It mainly carries out its commercial activity under the trade name “SEXY AVENUE”, the address of its site is www.sexyavenue. com. Under this name, it offers Internet users the opportunity to consult charming content (photographs, texts, etc.) as well as the sale of various articles relating to sexuality.
The animation, updating and maintenance of this website are carried out by the two employees of the company SEXY AVENUE.
The KALIGONA Company was incorporated on November 16, 2000. It operates an Internet site at www.kaligona.net
This website offers Internet users the consultation of various content for adults as well as the sale of various items relating to sexuality.
KALIGONA and SEXY AVENUE are therefore competitors since they carry out the same activity for the same target clientele and through the same medium, namely the Internet through their respective site.
During the winter of 2002, SEXY AVENUE noticed a sudden drop in the audience of its website, and, consequently, of its turnover. It then checked with various search engines, including the search engine “Voilà”, the evolution of its positioning, in particular according to the aforementioned search criteria. She noticed on this occasion, whereas she had so far occupied the first place in the search engine “Voila”, that she had been dethroned by an Internet site whose address was http: // www- sexy-kaligona.net.
SEXY AVENUE also noticed that KALIGONA had taken over by “copy paste”, on the one hand, the key words or “metatags” of its website, and, on the other hand,
Considering that its creation and that its intellectual property rights have been misused, it opens the present proceedings.
THE PROCEDURE
By subpoena dated August 8, 2002, DREAMNEX asks the Court to:
Say and rule that by reproducing the referencing page of the SEXY AVENUE Company, the KALIGONA Company has committed acts of copyright infringement,
Say and judge that by reproducing the keywords of the website of the Company SEXY AVENUE, the Company KALIGONA has committed acts of unfair competition and parasitic acts,
Say and judge that by voluntarily and actively using the SEXY AVENUE Company’s referencing page with search engines, resulting in the downgrading of the SEXY AVENUE Company’s website in said engines, the KALIGONA Company has thus committed acts of unfair competition and parasitic acts,
Consequently,
Order the Company KALIGONA to pay the sum of 20,000 Euros in compensation for the damage suffered by the Company ~ SEXY AVENUE as a result of acts of copyright infringement,
Order the Company KALIGONA the payment of the sum of 20,000 Euros in compensation for the damage suffered by the Company SEXY AVENUE as a result of acts of unfair competition by reproduction of the keywords or “meta-tags” of the latter’s website,
Order the company KALIGONA to pay the sum of 23,000 Euros in compensation for the damage suffered by the Company SEXY AVENUE as a result of its acts of unfair competition and parasitic acts by active use of the referencing page of the Company SEXY AVENUE,
Order the provisional execution of the judgment to intervene, notwithstanding any recourse and this, without constitution of guarantee,
Order the Company KALIGONA to pay the sum 6,000 Euros under article 700 of the NCPC
Order the Company KALIGONA to pay the entire costs, including the costs of the Agency for the Protection of Programs.
By submissions dated September 26, 2002, KALIGONA asks the Court to:
Say and rule that the DREAMNEX referencing page does not meet the legal conditions to benefit from copyright protection,
Say and rule that DREAMNEX will be dismissed of its claim for unfair competition also based on the reproduction of its page of referencing, failing to provide proof of a fact distinct from the alleged infringement,
Say and judge that the action of DREAMNEX does not provide proof that KALIGONA has committed acts of alleged unfair competition,
Say and judge that the action of DREAMNEX is abusive and order it to pay KALIGONA the sum of 10,000 Euros as damages on the basis of article 32-1 of the NCPC,
Consequently,
DREAMNEX dismiss all of its claims,
A counterclaim condemn DREAMNEX 10,000 Euros as damages for abuse of process,
say there should not rise to provisional execution,
condemning the the sum of 6,000 Euros under Article 700 of the NCPC,
the convict at the costs
By conclusions dated January 15, 2003, DREAMNEX reiterates its demands by adding:
Order the KALIGONA Company to pay the sum of 30,000 Euros in compensation for the damage suffered by the DREAMNEX Company as a result of acts of infringement of rights to author committed by the Company KALIGONA by reproducing on its Internect site www.sexy-kaligona.com elements of the content of the Internet site www.sexyavenue.com of the Company DREAMNEX,
Order the KALIGONA Company to pay the sum of 23,000 Euros in compensation for the damage suffered by the DREAMNEX Company as a result of its acts of unfair competition and parasitic acts by, on the one hand, reproduction on its website www.sexy- kaligona.net keywords or “meta-tags” from the website www. sexyavenue .com of the DREAMNEX Company and, on the other hand, the active use of the referencing page of the DREAMNEX Company website.
In the alternative,
Say and judge that by reproducing the referencing page of the DREAMNEX Company, the KALIGONA Company has committed parasitic acts and acts of unfair competition,
Say and judge that by reproducing on the website www.sexy-kaligona.com the content elements of the website www.sexyavenue.com of the referencing page of the DREAMNEX Company, the KALIGONA Company has committed parasitic acts and acts of unfair competition,
Say and judge that by reproducing the keywords of the website www.sexyavenue.com of the Company DREAMNEX, the Company KALIGONA has committed acts of unfair competition and parasitic acts,
Say and judge that by voluntarily and actively using the referencing page of the website www.sexyavenue.com of the DREAMNEX Company with search engines, which led to the downgrading of the said website in the said engines, the KALIGONA Company has thus committed acts of unfair competition and parasitic acts,
Consequently,
To condemn; the company KALIGONA to the payment of the sum of 50,000 Euros in “compensation for the damage suffered by the Company DREAMNEX due to acts of unfair competition and parasitic acts committed by the Company KALIGONA, on the one hand, by reproducing the referencing page the website www.sexyavenue.com of the DREAMNEX Company on its website www.sexy-kaligona.net and, on the other hand, by reproducing on its website www.sexy-kaligona.com the content elements of the website www.sexyavenue.com of the DREAMNEX Company.
Order the KALIGONA Company to pay the sum of 23,000 Euros in compensation for the damage suffered by the DREAMNEX Company as a result of its acts of unfair competition and parasitic acts by, on the one hand, reproduction on its website www.sexy- kaligona.net keywords or “meta-tags” from the website www. sexyavenue .com of the DREAMNEX Company and, on the other hand, the active use of the referencing page of the DREAMNEX Company website.
In any case:
Order the KALIGONA Company to close its website www.sexy-kaligona.com and this under penalty of 1,500 Euros per day of delay 24 hours after the service of the judgment to intervene,
Order the provisional execution of the judgment to intervene, notwithstanding any recourse and this, without constitution of guarantee,
Order the Company KALIGONA to pay the sum of 7,500 Euros under article 700 of the NCPC,
Order the Company KALIGONA to costs of the findings made on February 4 and 12, 2002 and September 30 by the Agency for the Protection of Programs,
Order the KALIGONA Company to pay all the costs.
MEANS OF THE PARTIES
To assert its position, SEXY AVENUE explains that:
The Internet sites which wish to be referenced among the various search engines must respect the applicable rules in this matter.
Two techniques can thus be used cumulatively:
– the insertion of keywords or “meta-tags” in the source codes of the website,
– the creation of intermediate referencing web pages.
Thus, the Internet user who will carry out a search with such or such search engine by typing the keywords corresponding to those included in the targeted Internet site, will see, displayed, various sites listed under these keywords.
The choice of keywords and their sequence is therefore of particular commercial importance, in particular to obtain a better ranking in search engines.
Therefore, if two Internet sites include the same keywords in their source codes, they will necessarily obtain a close ranking in the different search engines.
It is therefore essential for websites to be among the first referenced.
If websites fail to respect this formalism and declare their existence to the various search engines, they will remain completely “invisible” on the Internet network and no search engine will be able to take cognizance of both their existence and the content (s) offered. .
There is also another technique making it possible to accelerate the referencing of websites in the various search engines, in particular the insertion of intermediate referencing pages in which the site editor places a large number of content and other likely phrases, so much better to describe the type of content offered on the website in question, than to clearly improve the ranking of this website according to the category targeted in the indexed lists of search engines.
The content of these referencing pages also remains at the sole discretion and appreciation of the publisher of the website in question, depending on the expertise and creativity of its publisher.
These explanations are accepted and validated by KALIGONA
SEXY AVENUE explains that the choice of the sequence of keywords is at its sole discretion and that it has chosen the original terms according to a particular sequence. The same is true for SEO pages.
As a result, SEXY AVENUE was able to obtain a ranking among the very first sites referenced by search engines. She argues that KALIGONA has completely copied its keywords and SEO pages and thus KALIGONA has been able to benefit from the positioning of SEXY AVENUE.
SEXY AVENUE adds that having deposited its site with the IDDN of Geneva (Inter Déposit Digital Number) on May 16, 2001, its rights were violated and violated by KALIGONA.
SEXY AVENUE also explains that, noting a loss of its traffic for the benefit of KALIGONA, it tried to amicably settle the dispute between them that this attempt was rejected by KALIGONA.
For its part, KALIGONA explains that the pages and keywords of its site are its own creation, that it predates the creation of SEXY AVENUE.
She alleges that the attempted merger made by SEXY AVENUE had no other objective than to take advantage of the liveliness of its own action.
She adds that the accuracy of her keywords is the reason for her success. Finally, she explains that the smallness of her structure allows her to be efficient and profitable.
KALIGONA also adds that from March 2002, it deleted the disputed referencing pages (which is recognized by SEXY AVENUE).
KALIGONA explains that search engines are not the only means of access to the Internet market and that the importance of the latter should be put into perspective.
KALIGONA also argues that the entire procedure initiated by SEXY AVENUE has no other objective than to eliminate a serious competitor hindering the plaintiff.
Finally, KALIGONA denies having copied anything and claims that its site is its pure creation.
ON THIS, THE COURT
On the anteriority
. Whereas the SEXY AVENUE was created on August 27, 1999 and KALIGONA on November 16, 2000.
. Whereas the site SEXY AVENUE opened in February 2000 and that of KALIGONA it is, at best, since November 2000, given the date of creation of the company
. Whereas the domain registration SEXY AVENUE NDID with the date of May 16, 2001 while that of KALIGONA accordance APP (Agency for the Protection of Programs) of 16 August 2001
. Whereas these dates are not contested as such, the
Court will note the anteriority of SEXY AVENUE on KALIGONA, both on the existence of the company and on the creation of sites on the registration of domains.
On the similarity of the presentation of keyword sites and SEO pages
. Whereas there is a strong similarity between the appearance of the SEXY AVENUE site and that of KALIGONA, in particular:
– the identity of the colors used,
– the almost identical reproduction of the wave-shaped banner including the same national flags ,
– the rate of 50% discount offered on the same discounted objects
– the same presentation in circles and cartridges
. waited for the keyword Site Kaligona are the same as those of SEXY AVENUE
. whereas to this similarity which could be explained by the nature of the activity, the words evoking sexual pleasures being often the same, there are added the same spelling errors, the same sequences, the same sequences, the same orders,
. Whereas the referencing pages are also very similar, again, with the same words, the same sequences, the same presentation, the same sequences in the same order
,. Whereas Mr. P., manager of KALIGONA, present at the hearing, denying having copied the SEXY AVENUE site, does not, however, provide proof that he is the author of the pages of his own site,
The Tribunal , taking into account all the documents produced and in particular the reports of sworn agents of the APP, will say that KALIGONA is guilty of reproduction and illegal use of the creative rights belonging to SEXY AVENUE, these actions constituting counterfeit.
As a result of the foregoing, the Court will rule admissible and founded SEXY AVENUE’s claim concerning the infringement and will order KALIGONA to pay SEXY AVENUE the sum of 20,000 Euros for acts of infringement, rejecting SEXY AVENUE for the remainder.
On the other hand, the Court will rule admissible but unfounded the claims of SEXY AVENUE concerning unfair competition and parasitic acts, proof of facts distinct from the infringement not being provided
on the damage
. Whereas the sole support of the activity of the two companies is the Internet and this exclusively
. Whereas, consequently, that the network is the only source of possible turnover, the
Court will say that the damage alleged by SEXY AVENUE is real but,
. Whereas SEXY AVENUE does not provide sufficient supporting documents for its request, the
Court will limit compensation for the damage to 10,000 Euros.
At the request of SEXY AVENUE concerning the closure of the Kalogona site under penalty of 1,500 € / day
. Whereas only the conviction for counterfeiting is retained
. Whereas it is therefore up to KALIGONA to modify its site so as to no longer be the counterfeit of that of SEXY AVENUE, in particular by changing its colors, its layout, its cartridges, its keywords and its referencing pages, and especially, the order and sequence of the latter
. Whereas there is uniqueness between the company itself and the site it operates,
The Court will reject SEXY AVENUE’s request concerning the closure of the KALIGONA site.
On the counterclaim for abusive procedure
In view of the court’s acceptance of the infringement claim, KALIGONA’s counterclaim will be dismissed.
Provisional enforcement
Given the particularities of the case, the Tribunal considers that provisional enforcement should be ordered.
On article 700
Whereas SEXY AVENUE has exposed itself in order to assert its rights to irreparable costs which it would be unfair to leave at its expense, The Court accepts its request in the amount of € 3,500, – the remainder dismissing it and rejects the defendant’s claim for € 6,000.
FOR THESE REASONS
The Court ruling publicly by a contradictory judgment in first instance:
– Says the requests of the Société Anonyme DREAMNEX, operating under the trade name “SEXY AVENUE” concerning admissible and well-founded infringement,
– Orders the Sarl KALIGONA to pay to the Société Anonyme DREAMNEX , operator under the trade name “SEXY AVENUE” the sum of 20,000 for acts of counterfeiting committed against SEXY AVENUE,
– Orders Sarl Kaligona to pay to the limited company DREAMNEX, operator under the trade name “SEXY AVENUE “the sum of € 10,000 for the damage caused by the infringement,
– Disputes the parties for their further and contrary claims
– Orders the provisional execution of this judgment, without constitution of collateral;
– Orders the Sarl KALIGONA to pay to the Société Anonyme DREAMNEX, operating under the trade name “SEXY AVENUE” the sum of 3,000 under article 700 of the NCPC.
– Orders sarl KALIGONA to pay the costs, including those to be recovered by the registry, liquidated in the sum of € 73.62 incl. VAT (VAT 11.75 euros), currently including the costs of the appraisal of the APP of February 12, 2002 and September 30, 2002.
Entrusted during the hearing of April 23, 2003 to Mr. CHRISTIN, as Judge-Rapporteur.
Deliberated on May 28, 2003.
Deliberated by Mrs ROBERT, Messrs BURIN des ROSIERS, CHRISTIN and delivered at the Public Hearing where sat:
Mr. CAVROIS, President, Mrs. ROBERT, Messrs MICHOUDET, VIEILLEVIGNE, CHRISTIN, BAUDOUIN, and BURIN des ROZIERS, Judges, assisted by Mr. LOFF, Registrar. The parties having been previously notified.
The judgment minute is signed by the President of the deliberations and the Registrar.
