Unfair competition

Under French practice, unfair competition is an alternative or a cumulative ground before the Courts. It serves a different purpose than trademark counterfeiting and is useful when trademark monopoly proves vain, provided some circumstances apply.

On January 18, 2008, the Paris Court of First Instance determined whether the trademark LA COLLINE infringed the prior trademark LA PRAIRIE for cosmetics. The Court considered that the common structure and reference to the nature of both signs were not sufficient to create a likelihood of confusion given the overall differences between them.

Whereas rejecting the infringement action, the Court ruled unfair competition. The plaintiff intended to take advantage of the investments realized by the plaintiff by using a very similar marketing strategy. This was observed through the same reference to the nature and to Switzerland, an unnecessary reference to “cellular cosmetics” on which the claimant based all its communication, a communication on the luxurious character and the important scientific and technologic researches made to obtain the products and similarities between the packaging (shape and colours).

Each element was clearly not proper to an individual protection. But the meeting of all these marketing strategy elements served to have the situation ceased on the basis of unfair competition. Consequences of such condemnation are in practice similar to those of an infringement action. In this proceeding, even if the mark LA COLLINE was considered available, the Court banned the use of the wording “La Colline” and of the litigious packagings. Unfair competition is therefore an important resource in the defence of concepts and marketing strategies taking into account their economic value.

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