Copie de concept et concurrence déloyale: une action délicate à bien anticiper

In a recent ruling dated July 4, 2013 in a case between Ameliste and Zankyou Ventures, the Paris Court of Appeal restated that a concept can only be considered as copied if any elements protected by intellectual property rights have been reproduced and unfair trading practices have been used.

So the question remains as to what precisely do we mean by “unfair use”?

In the case of interest, Ameliste had filed a claim against Zankyou on the allegation that the website Zankyou had just launched was similar to the Ameliste site.

Both companies’ websites offered users to open a wedding list allowing intending spouses to purchase their gifts from multiple brands or to receive an equivalent sum of money in lieu of the gifts chosen by donators. The underlying concept on the Ameliste site provided for a reimbursement via Boursorama Banque, with which the company had established a financial partnership agreement. The financing on Zankyou side was through advertising.

According to Ameliste, Zankyou committed unfair competition, in that the Ameliste website is an original concept as it offers – inter alia – to substitute hard cash for the gifts selected by the future newlyweds, and that the opening of a website also using this specific characteristic was prejudicial to its own rights and caused actual harm to Ameliste.

However, the Court considered that, insofar as Zankyou did not otherwise behave disloyally, simply using the said characteristic was not sufficient cause to constitute an act of unfair competition.

Surprisingly enough, the Court rejected the fact that one of the founders of the Zankyou website is a former employee of Boursorama Banque – who in addition had already used the Ameliste services for his own wedding, on the ground that no proof had been submitted to demonstrate how this co-founder could have accessed inside information while holding his former functions.

The Court not only rejected the claimant’s request, but also condemned Ameliste for disparagement, on account of various statements made on the “” site.

To substantiate its decision, the Court stated that it appeared from the documents supplied by Zankyou that even before the Ameliste website was created, there existed a website and an English site which already offered users to directly collect from the donator’s bank accounts the amounts the respective donators had transferred to the wedding list.

The innovative nature of the Ameliste concept was thus clearly challenged.

Similarly, the fact that the respondent had been able to demonstrate substantial investment in the development of its own website worked against Ameliste, as the Court viewed such investment as proof that Zankyou did not merely copy the claimant’s idea and website.

So Ameliste is the biter bit!!

What the judgment says:

This judgment shows how important it is, when preparing the launching of a new concept, to anticipate any potential unfair competition situation by carefully associating legal markers to the specific features of the said concept.  In fact, and contrary to preconceived ideas, it is quite possible to protect a concept insofar as such concept is materialized and has certain originality. In this respect, opening a targeted market search, for example, can be useful in order to make sure that no other player on the market is offering a similar concept. This may also prove useful in case of a dispute, when it comes to substantiating the innovative nature and seniority of a creation. It is highly probable that, would Ameliste had made such a search, it would have changed its strategy vis-à-vis Zankyou.

Hermine Coudry – European Trademark Attorney

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