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