Court of Appeal of Versailles (12th Chamber), 7 June 2007, n°06/01686 (obs. Costes L., in RLDI 2007/33, n°1100)
In 2002 Gaumont commercialized a DVD of the film Spiderman, in a specially designed package, presented as a limited edition for collectors. The packaging consisted of a wooden box containing a double DVD, a figurine representing Spiderman, a sketch-book…
M. J. created this packaging and Mastery took care of its production and marketing, while MPO was only in charge of manufacturing it. Subsequently, MPO published a photograph of the Spiderman package on its website, on a page dedicated to its ‘packaging creations’. M. J. and Mastery took action against MPO on the grounds of copyright infringement and unfair competition.
MPO argued that under copyright law the litigious packaging was not original, as it was merely a reproduction of boxes that had been drawn by the author of the Spiderman comic strips.
The Court of Appeal of Versailles ruled that a package designed and created for a specific product is a work as defined by the Intellectual Property Code and therefore qualifies for copyright protection. The Court condemned MPO for copyright infringement.
BRAD SPITZ
www.en.bradspitz.com
IPIT NEWS FROM FRANCE, by YS Avocats law firm, www.ys-avocats.com
Monday, 24 December 2007
Thursday, 20 December 2007
A Newsgroup Defined as Being a Hosting Provider
Court of Appeal of Versailles (14th Chamber), 12 December 2007, Les Arnaques.com v Editions Régionales de France
Editions Régionales de France (ERF) is a communications agency which specialises in the sales of advertising space and publishing of professional directories. It considered that newsgroups of the website Lesarnaques.com (literally The swindles.com), dedicated to helping consumers air their disputes, contained serious allegations against it.
In a summary proceeding, ERF obtained an order against the company Lesarnaques.com to suspend all reference to ERF on the site. Lesarnaques.com lodged an appeal against the summary order.
The Court of Appeal of Versailles ruled that a newsgroup that is used to send messages online, without any prior monitoring, is a hosting provider in the meaning of the French Act of 21 June 2004 on Confidence in the Digital Environment. As such, Lesarnaques.com may be liable under Article 6-1-2 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which provides that the hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove the information, or to disable access to it.
However, the Court ruled that under Article 6-I-5 of the Act of 21 June 2004, hosting providers are deemed to have knowledge of the litigious facts if they have been notified of certain elements, in particular the description of the litigious facts and their precise location, and the reasons why the content must be removed, with an explanation of the legal provisions and factual justifications. In the present case, the Court considered that the ERF had not sent the required notifications, and dismissed ERF’s claims.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
Editions Régionales de France (ERF) is a communications agency which specialises in the sales of advertising space and publishing of professional directories. It considered that newsgroups of the website Lesarnaques.com (literally The swindles.com), dedicated to helping consumers air their disputes, contained serious allegations against it.
In a summary proceeding, ERF obtained an order against the company Lesarnaques.com to suspend all reference to ERF on the site. Lesarnaques.com lodged an appeal against the summary order.
The Court of Appeal of Versailles ruled that a newsgroup that is used to send messages online, without any prior monitoring, is a hosting provider in the meaning of the French Act of 21 June 2004 on Confidence in the Digital Environment. As such, Lesarnaques.com may be liable under Article 6-1-2 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which provides that the hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove the information, or to disable access to it.
However, the Court ruled that under Article 6-I-5 of the Act of 21 June 2004, hosting providers are deemed to have knowledge of the litigious facts if they have been notified of certain elements, in particular the description of the litigious facts and their precise location, and the reasons why the content must be removed, with an explanation of the legal provisions and factual justifications. In the present case, the Court considered that the ERF had not sent the required notifications, and dismissed ERF’s claims.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
Tuesday, 18 December 2007
Google liable for hosting a blog
Court of Appeal of Paris (14th Chamber, Section A), 12 December 2007, Google Inc. v Benetton, Bencom
The American company Google Inc. hosts blogs on the Internet. The Benetton Group and Bencom manufacture and commercialize ready-to-wear clothes. The Benetton Group is the parent company, and Bencom the owner of the group’s trademarks.
Photographs from their catalogues and certain of their trademarks were reproduced by a certain “Angela B.” on two blogs, who claimed that he/she worked for Benetton in order to get women to send photographs of themselves in swimsuits or underwear. One blog was hosted by Microsoft, the other by Google Inc.
Benetton and Bencom first sent formal notices to Angel B.’s email address, which appeared on the blogs. As these notices had no effect, the plaintiffs wrote to Microsoft and Google to ask them to block all access to the blogs. Only Microsoft accepted.
At the beginning of May 2007, Benetton and Bencom brought the case before the President of the High Court of First Instance of Paris. In a summary order dated 29 May 2007, the President ordered Google Inc. to disable all access to the litigious blog, and condemned it to pay provisional damages to the plaintiffs.
On 8 June 2007, Google Inc. lodged an appeal and the litigious blog became inaccessible on either June 6 or June 8.
In its decision dated 12 December 2007, the Court of Appeal of Paris ruled that Google Inc. acted as a hosting provider and not as a publisher. The Court recalls that under the provisions of the Act of 21 June 2004 on Confidence in the Digital Environment, a hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove or disable access to the information.
The Court noted that on 3 May 2007, after the summons had been served on Google Inc., the plaintiffs communicated to the defendant the evidence that was intended to be used at the trial. This evidence established the plaintiff’s rights and trademarks and under what conditions the photographs and trademarks had been reproduced.
The Court ruled that Google Inc. had knowledge of the illegal content when it received the plaintiff’s evidence, and that it should have promptly disabled all access to the content, without waiting for the first judge’s ruling. Google Inc. had only removed the blog on June 6 or 8, 2007, and was therefore held liable.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
The American company Google Inc. hosts blogs on the Internet. The Benetton Group and Bencom manufacture and commercialize ready-to-wear clothes. The Benetton Group is the parent company, and Bencom the owner of the group’s trademarks.
Photographs from their catalogues and certain of their trademarks were reproduced by a certain “Angela B.” on two blogs, who claimed that he/she worked for Benetton in order to get women to send photographs of themselves in swimsuits or underwear. One blog was hosted by Microsoft, the other by Google Inc.
Benetton and Bencom first sent formal notices to Angel B.’s email address, which appeared on the blogs. As these notices had no effect, the plaintiffs wrote to Microsoft and Google to ask them to block all access to the blogs. Only Microsoft accepted.
At the beginning of May 2007, Benetton and Bencom brought the case before the President of the High Court of First Instance of Paris. In a summary order dated 29 May 2007, the President ordered Google Inc. to disable all access to the litigious blog, and condemned it to pay provisional damages to the plaintiffs.
On 8 June 2007, Google Inc. lodged an appeal and the litigious blog became inaccessible on either June 6 or June 8.
In its decision dated 12 December 2007, the Court of Appeal of Paris ruled that Google Inc. acted as a hosting provider and not as a publisher. The Court recalls that under the provisions of the Act of 21 June 2004 on Confidence in the Digital Environment, a hosting provider is not liable for the information stored at the request of a recipient of the service, if the provider did not have actual knowledge of illegal activity or information, or if the provider, upon obtaining such knowledge, acted expeditiously to remove or disable access to the information.
The Court noted that on 3 May 2007, after the summons had been served on Google Inc., the plaintiffs communicated to the defendant the evidence that was intended to be used at the trial. This evidence established the plaintiff’s rights and trademarks and under what conditions the photographs and trademarks had been reproduced.
The Court ruled that Google Inc. had knowledge of the illegal content when it received the plaintiff’s evidence, and that it should have promptly disabled all access to the content, without waiting for the first judge’s ruling. Google Inc. had only removed the blog on June 6 or 8, 2007, and was therefore held liable.
http://www.legalis.net
BRAD SPITZ
www.en.bradspitz.com
Sunday, 9 December 2007
A small adds website ordered to screen its content
Commercial Court of Paris, Summary Order, 31 October 2007, Kenzo and others v DMIS
Several companies of the group LVMH (Christian Dior, Givenchy, Guerlain, Kenzo) brought a case before the President of the Commercial Court of Paris against DMIS, the publisher of the website Vivastreet. This website, specialised in small adds, contained adds published by private individuals for the sale of perfumes outside the plaintiffs’ selective distribution network. The plaintiffs asked the President of the Court, acting as a summary jurisdiction for urgent matters, to order measures to stop these acts.
The plaintiffs acted on the grounds of Articles 6-I-7 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which allows the judge to request the access and hosting providers to implement specific and temporary surveillance of their site, and Article 6-I-8, which provides that the judge may order any measure to prevent or stop damages caused or likely to be caused by the content of an online communication to the public.
In a summary order dated 26 July 2007, the President of the Commercial Court ordered the deletion of the litigious adds (http://www.legalis.net/breves-article.php3?id_article=2070). He also ordered the implementation of an upstream screening system to detect and block adds containing the trademarks of the plaintiffs for a period of six months. The President also ordered the publication of a warning on the home page of the site for one month.
However, a few months later, the plaintiffs discovered that there were still adds containing their trademarks on the same website, and considered that the defendant had not correctly executed the decision. They brought the case before the same Court.
In a summary order dated 31 October 2007, the President maintained his summary injunction concerning the screening and monitoring obligation, even though the defendant argued that it was developing an efficient software due for 15 January 2008 (http://www.legalis.net/jurisprudence-decision.php3?id_article=2074).
The judge also ordered the defendant to publish a warning again.
This decision offers an interesting application of Article 6-I-8 of the Act on Confidence in the Digital Environment, which allows the victim of an illegal content to ask the judicial authority to implement summary measures in order to prevent damages relating to illegal contents. In the Google Video case, the High Court of First Instance of Paris ruled that once notified that there is illegal content on their sites, the hosting providers have a general obligation to monitor their site in order to make sure that the content in question does not reappear on their site (see our post: http://copyrightfrance.blogspot.com/2007/11/google-video-held-liable-for-not-doing.html ). Article 6-I-8 may constitute a better solution, as the judge will order specific measures to be implemented during a specified time frame.
BRAD SPITZ
www.bradspitz.com
Several companies of the group LVMH (Christian Dior, Givenchy, Guerlain, Kenzo) brought a case before the President of the Commercial Court of Paris against DMIS, the publisher of the website Vivastreet. This website, specialised in small adds, contained adds published by private individuals for the sale of perfumes outside the plaintiffs’ selective distribution network. The plaintiffs asked the President of the Court, acting as a summary jurisdiction for urgent matters, to order measures to stop these acts.
The plaintiffs acted on the grounds of Articles 6-I-7 of the French Act of 21 June 2004 on Confidence in the Digital Environment, which allows the judge to request the access and hosting providers to implement specific and temporary surveillance of their site, and Article 6-I-8, which provides that the judge may order any measure to prevent or stop damages caused or likely to be caused by the content of an online communication to the public.
In a summary order dated 26 July 2007, the President of the Commercial Court ordered the deletion of the litigious adds (http://www.legalis.net/breves-article.php3?id_article=2070). He also ordered the implementation of an upstream screening system to detect and block adds containing the trademarks of the plaintiffs for a period of six months. The President also ordered the publication of a warning on the home page of the site for one month.
However, a few months later, the plaintiffs discovered that there were still adds containing their trademarks on the same website, and considered that the defendant had not correctly executed the decision. They brought the case before the same Court.
In a summary order dated 31 October 2007, the President maintained his summary injunction concerning the screening and monitoring obligation, even though the defendant argued that it was developing an efficient software due for 15 January 2008 (http://www.legalis.net/jurisprudence-decision.php3?id_article=2074).
The judge also ordered the defendant to publish a warning again.
This decision offers an interesting application of Article 6-I-8 of the Act on Confidence in the Digital Environment, which allows the victim of an illegal content to ask the judicial authority to implement summary measures in order to prevent damages relating to illegal contents. In the Google Video case, the High Court of First Instance of Paris ruled that once notified that there is illegal content on their sites, the hosting providers have a general obligation to monitor their site in order to make sure that the content in question does not reappear on their site (see our post: http://copyrightfrance.blogspot.com/2007/11/google-video-held-liable-for-not-doing.html ). Article 6-I-8 may constitute a better solution, as the judge will order specific measures to be implemented during a specified time frame.
BRAD SPITZ
www.bradspitz.com
Thursday, 6 December 2007
French high court thumps Google Video
An interview of Brad Spitz in The Register on the Google Video case:
http://www.theregister.co.uk/2007/12/05/french_high_court_thumps_google_video/
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