Threat on unauthorised use

Kenzo Parfums, Lancôme, L’Oreal, Christian Dior Parfums, Yves Saint Laurent Parfums and many other perfumes companies were suing for trademark infringement several natural persons for having offered for sale fragrances shown equivalent to their perfumes.

The fragrances were presented with announcements such as “If you like the X perfume, you will like my Y perfume” or “Ask for our list of similar perfumes with well-known perfumes”.
On February 15, 2008, the Paris Penal Court of First Instance denied the trademark infringement claim. The judge pointed out the decision Hölterhoff issued by the CJEC on May 14, 2002, to consider that the sole reference made to well-known perfumes was insufficient to demonstrate the material element of the infringement.
This decision is in complete contradiction with the French intellectual Property Code which prohibits unauthorised use, reproduction or affixing of a trademark even with the adjunction of wordings such as “formula, style, system, imitation, genre, method”. The Court position also goes against an established case law which denies the concordance practice.

The Paris Court of Appeal even last reminded on December 12, 2007, that use and display of the PORSCH logotype in a car repairer shop and on its commercial invoices was trademark infringement. The Hölterhoff decision was also of strict application.

First the potential client considered was a professional and not the ordinary public. Secondly the exceptionto the trademark monopoly only applied when a third party presented the product as originating from his own manufacturing and used a third party’s mark only for describing the specific properties of said product. We hope this solution will remain an isolated case. An appeal has been lodged and we will further report the issue of the proceeding.

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