Facts
Decision
Comment


Facts

Plaisance Equipements specialises in the repair of agricultural machinery and holds a European trademark and two French patents. Carbtech distributes spare parts manufactured by a Dutch company, ATWT International, in France, primarily through its website.

Plaisance Equipements discovered that Carbtech was distributing parts sold under the Plaisance brand that reproduced certain characteristics of its patents. After having bailiffs establish the facts, Plaisance Equipements attempted to reach an amicable agreement by sending a letter of formal notice to Carbtech, of which ATWT international was informed. Plaisance Equipements subsequently brought a lawsuit against the two companies for:

  • infringement of its brand and patents; and
  • unfair competition.

With respect to its unfair competition claim, Plaisance Equipement accused Carbtech of non-compliance with several regulations – in particular:

  • the Law for Confidence in the Digital Economy (LCEN);
  • the Consumer Code;
  • the Data Protection Act (LIL); and
  • the EU General Data Protection Regulation.

Such non-compliance, according to Plaisance Equipment, gave Carbtech an undue competitive advantage, generating commercial disturbance and moral prejudice.

Decision

In view of the findings made and without the need for extensive argumentation from the plaintiff, the judges simply noted the absence of:

  • certain mandatory references that should have been included in the legal details or pre-contractual information on Carbtech's website; and
  • a privacy policy available to Internet users.

For this grievance alone, damages of €15,000 were awarded.(1)

Comment

In IP infringement actions, parties should consider supporting their claims under unfair competition legislation, even in the absence of direct competition, as soon as distinct wrongful acts leading to a loss can be alleged. Parties should consult advisers who are well informed about the regulations in force (eg, the LCEN, the LIL, the Evin Law and the Consumer Code), who can analyse the content of a third party's website and detect the flaws to highlight.

Parties should ensure that they themselves comply with the regulations in force – failure to do so can lead to unfair competition findings, resulting in parties having to pay of damages over and above any fine that may be imposed by the administrative authorities (eg, Fraud Control and the National Commission for Information Technology and Civil Liberties). This is a question of not giving competitors an easy win – in this case, the breaches observed were particularly visible since they concerned compulsory information not available on the website.

Not having up-to-date legal notices, complete general terms and conditions of sale or a sufficient privacy policy accessible on a website is an open door to actions by third parties, whether they be competitors, dissatisfied partners or opposing parties in a dispute that may even have a completely different purpose.

For further information on this topic please contact Charlotte Urman at INLEX IP Expertise by telephone (+33 1 56 59 70 90) or email ([email protected]). The INLEX IP Expertise website can be accessed at inlex.com.

Endnotes

(1) TGI Paris 15 April 2022, 19/12628.