JURISPRUDENCE 2005 to 2017(2)
LexInter | July 9, 2014 | 0 Comments

JURISPRUDENCE 2005 to 2017

Paris Tribunal de Grande Instance
CT0087

Public hearing of October 18, 2006


Appeal number:
Published by the Documentation and Studies Department of the Court of Cassation

TRIBUNALDE GRANDE INSTANCEDEPARIS 3rd chamber 3rd section RG No: 05/12183 MINUTE No: Summons of: August 05, 2005 Enforceable shipments issued on: JUDGMENT rendered on October 18, 2006

REQUEST FOR SA FOTOVISTA 183 rue du Chevaleret 75013 PARIS represented by Me Vincent FAUCHOUX, lawyer at the PARIS bar, applicant lawyer, cloakroom P.221

DEFENDANT Mr Mr Marc X … taken in his capacity as owner of the website accessible at the address www.photobis.com 9 rue Belà Bartok 77100 MEAUX represented by Me Michel PUECHAVY, lawyer at the PARIS bar, applicant lawyer, cloakroom C 126

COMPOSITION OF THE COURT Elisabeth BELFORT, Vice-President, signatory of the decision Agnès THAUNAT, Vice-President Pascal MATHIS, Judge assisted by Marie-Aline PIGNOLET, Registrar, signatory of the decision DEBATES

At the hearing of September 05, 2006 held publicly

UGEMENT Publicly pronounced Contradictorily in first instance FACTS AND CLAIMS OF THE PARTIES

 The company FOTOVISTA has developed a sale of consumer electronics products under the name PIXMANIA at the address “pixmmania.com”. She filed:

– December 18, 2001 the trademark PIXMANIA registered under the number 3137587, to designate in classes 16, 38 and 40 “printed matter; photographs: transmission of messages and images assisted by computer; communications by computer terminals ; photographic prints. ” – on June 25, 2003 the trademark PIXMANIA registered under number 3233158 to designate in classes 9,16, 35, 38, 40, 41 and 42 all the products and services related to photography, image, sound, multimedia, in particular “the organization of exhibitions for commercial or advertising purposes”, “interactive television broadcasting services relating to the presentation of photographic products, electronic publications” and ” selection, purchase advice, editing services in the photographic field. “- September 18, 2000 the semi-figurative mark” PIXmania.com “registered under number 3052173 to cover in classes 16, 38 and 40 the” printed matter; photographs: transmission of information by electronic catalogs on the Internet: communications by computer terminals; printing of photographs on all media. ” information by electronic catalogs on the Internet: communications by computer terminals; printing of photographs on all media. ” information by electronic catalogs on the Internet: communications by computer terminals; printing of photographs on all media. “

She discovered on the site “photobis.com”, property of Mr. Marc X … an article dated June 29, 2005 entitled “investigation: Pixmania in turmoil, a new” Père.noùl.fr “and” Danger! Pixmania.com high tech at unbeatable prices, services included. “, This last entry, crossed out, showing its logo

Considering that these remarks were constitutive of defamation and infringement of trademarks and copyrights, it has by deed of judicial officer dated August 5, 2005 assigned Mr. Marc X … before the tribunal de grande instance of Paris, the summons being denounced to the Paris prosecutor’s office on August 19, 2005;

By last conclusions communicated on March 28, 2006, the company FOTOVISTA asks to:

 On defamation, in accordance with articles 23 (for publicity), 29 paragraph 21er of the law of July 29, 1881, declare and judge that by publishing on the website accessible at the address “www.photobis.com” the June 29, 2005 in the rublrique “Forum – the news Photo in RSS news feed”, in the article entitled “Investigation: PIXMANIA in turmoil, a new” Father noùl.fr “ä!”, The comments reproduced in point 5 of the present summons, Mr X …, in his capacity as owner of the website, publisher and author of the disputed remarks, was guilty of the offense of public defamation against an individual, as a result:order the defendant to pay him the sum of 30,000 euros as damages in compensation for the damage suffered, order the publication on the website “www.photobis.com”, in the same place and place as the disputed remarks, of the condemnation to intervene, under penalty of 1000 euros per established infringement, and under the title “CONDEMNATION OF THE EDITOR OF THE PHOTOBIS WEBSITE FOR DEFAMATION AGAINST THE COMPANY FOTOVISTA.”EDITOR OF THE PHOTOBIS WEBSITE FOR DEFAMATION AGAINST THE COMPANY FOTOVISTA. “EDITOR OF THE PHOTOBIS WEBSITE FOR DEFAMATION AGAINST THE COMPANY FOTOVISTA. “

On counterfeiting: in accordance with articles L111-1, L112-2, L122-4, L335-3 and 713-2 a) of the intellectual property code, declare and judge that the defendant has committed acts of infringement by reproduction of French brands PIXmania no3233158 and no3137587 and of the French brand PIXmania.com no3052173, declare and judge that the defendant has committed acts of copyright infringement by reproducing the PIXMANIA logo identically,

Consequently, order the defendant to pay him a sum of 100,000 euros as compensation for the damage suffered in respect of the infringement of trademarks and copyrights, Order the publication on the website “www; photobis.com” in the same places and places as the disputed article, of the sentence to intervene, under penalty of 1000 euros per established infringement, and this under the title “CONDEMNATION OF THE EDITOR OF THE WEBSITE AND PHOTOBIS FOR INFRINGEMENT”, in any state of cause: order provisional execution, order Mr Marc X … to pay him the sum of 10,000 Euros in application of article 700 of the new code of civil procedure, order Mr Marc X … to pay the entire costs with entertainment for the benefit of the SCP DEPREZ DIAN GUIGNOT,lawyer, in application of article 699 of the new code of civil procedure.

 By last conclusions communicated on May 11, 2006lM. Marc X … request for: the visa of articles 65 of the law of July 29, 1881, L11-1, L112-2, L122-4, L335-3 and 713-2 of the intellectual property code, dismiss the plaintiff, order the company FOTOVISTA to pay him the sum of 3,000 Euros in application of article 700 of the new code of civil procedure, order the company FOTOVISTA to pay all the costs with distraction in favor of Maître Michel PUECHAVY, in application of article 699 of the new code of civil procedure.

 REASONS FOR DECISION

 On defamation,

 Article 29 of the law of July 29, 1881 provides that “any allegation or imputation of an act which harms the honor or the consideration of the person or body to which the act is imputed is defamation. Publication direct or by reproduction of this allegation or this imputation is punishable, even if it is made in dubious form or if it targets a person or a body not expressly named, but whose identification is made possible by the terms of the speeches , shouts, threats, written or printed matter, placards or posters incriminated. ” Article 65 of the said law provides that “public action and civil action resulting from crimes,

 In this case, it is common ground that the summons was indeed delivered within the three-month period, on the other hand no conclusion was served between the summons and March 28, 2006; Consequently, the three-month limitation period applicable to the libel action has not been interrupted. It matters little whether the case was referred to the pre-trial judge hearing since these are simple acts of judicial administration that do not interrupt the limitation period.

 On counterfeiting,

 On trademark infringement by reproduction Article L713-2 a) of the intellectual property code provides that “are prohibited, except with the authorization of the owner: the reproduction, use or affixing of a mark (… ) as well as the use of a reproduced mark, for goods or services identical to those designated in the registration. ” The fact that the mark “PIXmania.com” has been crossed out does not affect the fact that it is indeed the mark PIXmania.com which has been used identically. The “com” suffix being inoperative, the “pixmania” brands have also been used identically. Regarding an infringement by reproduction relating to the description of authentic products the risk of confusion is not to be taken into consideration. The defendant maintains that the reproduction of the marks would not be infringing because it would fall within the framework of the freedom of expression. The court observed that the site on which the alleged infringement advertisement appeared is not located outside the commercial sphere. Consequently, the principle of freedom of expression cannot legitimize its excessive and denigrating criticisms of the applicant’s marks. The court observed that the site on which the alleged infringement advertisement appeared is not located outside the commercial sphere. Consequently, the principle of freedom of expression cannot legitimize its excessive and denigrating criticisms of the applicant’s marks. The court observed that the site on which the alleged infringement advertisement appeared is not located outside the commercial sphere. Consequently, the principle of freedom of expression cannot legitimize its excessive and denigrating criticisms of the applicant’s marks.

On copyright infringement Article L111-1 of the intellectual property code provides that: “the author of a work of the mind enjoys over this work by the sole fact of its creation, a right of exclusive intangible property and enforceable against all. ” According to article L112-2 of the said code are considered in particular as work of the spirit “the works of drawings and the graphic works.” In addition, article L122-4 of the said code provides that “any representation or reproduction, in whole or in part, made without the consent of the author or his successors in title is illegal.” The plaintiff company has the economic rights to the high-tech “PIXmania.com logo at unbeatable prices, including services. the letters are colored in the same way, the first three letters are surrounded by a black circle. This constitutes acts of copyright infringement. the letters are colored in the same way, the first three letters are surrounded by a black circle. This constitutes acts of copyright infringement.

On remedial measures

The court has sufficient evidence to set the amount of compensation for acts of trademark infringement at 2,500 euros and the amount of compensation for acts of copyright infringement at 2,500 euros.

 On the application of article 700 of the new code of civil procedure

It appears unfair to allow FOTOVISTA to bear the costs that are irrecoverable and not included in the costs. It is appropriate to allocate him for this reason an indemnity of 5,000 Euros. Provisional enforcement It appears necessary in the present case and compatible with the nature of the case to order the provisional enforcement of this decision. Costs The defendant who is unsuccessful in his claims must be ordered to pay the costs with distraction in favor of the SCP DEPREZ DIAN GUIGNOT in application of article 699 of the new code of civil procedure.

 FOR THESE REASONS

500 euros (TWO THOUSAND FIVE HUNDRED EUROS) as damages for copyright infringement, Orders the defendant to pay the plaintiff 5,000 euros (FIVE THOUSAND EUROS) in application of article 700 of the new procedural code civil, Orders the provisional execution, Orders the defendant to pay full costs with distraction in favor of the SCP DEPREZ DIAN GUIGNOT in application of article 699 of the new code of civil procedure. Done in Paris, October 18, 2006 THE REGISTRAR Orders the defendant to pay all the costs with distraction in favor of the SCP DEPREZ DIAN GUIGNOT in application of article 699 of the new code of civil procedure. Done in Paris, October 18, 2006 THE REGISTRAR Orders the defendant to pay all the costs with distraction in favor of the SCP DEPREZ DIAN GUIGNOT in application of article 699 of the new code of civil procedure. Done in Paris, October 18, 2006 THE REGISTRAR

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