On July 3 2015 the Paris Court of First Instance dismissed a software and database-related infringement claim because the details of the claim were too vague and ambiguous to allow the defendant to formulate a valid defence.(1)
The claimant was an IT service provider which had been commissioned in 2003 by the defendant, the Société d'Exploitation des Lignes Touristiques (SELT), to develop and implement a real-time localisation system for bus travel in Paris and associated ticketing.
The claimant alleged that in 2013 employees of third-party IT auditor Apollo Conseil carried out a technical audit of the claimant's solution on behalf of the defendant and had access to the source code of the claimant's software, among other information.
Subsequently, on June 4 2013 the claimant allegedly received a notice of termination of the agreement with the defendant.
On July 16 2014 the claimant was granted ex-parte authorisation to enter Apollo Conseil's premises in order to have a bailiff's report drawn up confirming that the defendant's travel and ticketing interface was similar to that which the claimant had designed. The claimant subsequently obtained the seizure of several documents found at the premises of Apollo Conseil and SELT's sister company, SLT.
The claimant subsequently filed proceedings against SELT, SLT and Apollo Conseil on the grounds of IP rights infringement and unfair competition.
The defendant filed a response based on procedural grounds, asserting that the claim was too vague and ambiguous to allow the defendant to formulate a valid defence and should thus be rejected.
The Paris Court of First Instance found that the claim was indeed confusing as it referred alternatively to infringement of "the technology as a whole", "the ticketing software" and "the software", which made it almost impossible to ascertain on which specific work of authorship the claimant was actually basing its copyright infringement claim.
Adding further to the ambiguity, the claimant's allegations that some of its SQL tables and database files had been extracted in violation of its rights suggested that the claimant was relying on additional and different IP rights (ie, copyright and sui generis rights in its database).
In light of these facts, the court concurred with the defendant and ruled that the claim was invalid due to being too vague, in accordance with Articles 15 and 56 of the Civil Procedure Code.
The court did not need to make any assessment on the merits and thus – despite the defendant's assertions to the contrary – did not have to decide whether the software at issue was actually original (and thus protected by copyright).
The court also rejected the claimant's allegations relating to unfair competition, since they were based on the same imprecise and equivocal factual grounds as the infringement claim. Further, the fact that the unfair competition claim was based on the same factual grounds as the infringement claim meant that it would likely have been rejected on the merits, as French courts typically take the view that an unfair competition claim cannot be based on the same factual grounds as an IP infringement claim.
The claimant should have identified precisely and unequivocally the work(s) that it considered to have been infringed (ie, the software and database). Regarding the software, the claimant should have provided the source codes and a description of the software, how it was developed and by whom. As for the database, the claimant should have clarified when and how it had been created and of what it consisted; it should further have substantiated the investments incurred to create the database, whether financial, human or technical.
This decision is a useful illustration of the fact that in France, particulars of claims relating to IP infringement or unfair competition must be specific and precise enough to be clear to the defence and the court. Otherwise they will most likely be rejected on the grounds of not allowing the defendant to formulate a valid defence, regardless of the underlying merits of the claim.
For further information on this topic please contact Vincent Denoyelle at Hogan Lovells by telephone (+33 1 53 67 47 47) or email (firstname.lastname@example.org).The Hogan Lovells International LLP can be accessed at www.hoganlovells.com.
(1) The decision can be found at www.legalis.net/spip.php?page=jurisprudence-decision&id_article=4683.
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