Thursday, 30 August 2007

The extent of the authorisation given for the use of one’s image

Cour de cassation, 1st civil chamber, 14 June 2007, n° 06-13.601

Two children suffering from a serious neuromuscular disease, appeared in a French television programme called “Téléthon”, with the authorisation of their legal representative. The aim of the programme was to enable children to reveal their suffering in order to increase public awareness and raise funds for medical research. During the television programme a photo was taken of the two children in their wheelchairs and reproduced in a school book on sciences, with the following commentary: “Each year a television programme, Téléthon, gathers children suffering from hereditary diseases”.

The legal representative took action against the photo agency and the publisher of the book on the basis of the violation of their right to privacy and image. The Court of Appeal of Nîmes dismissed the action, ruling that the voluntary participation of sick persons in the television programme implies their acceptance to serve the cause and to have their image distributed as widely as possible, and that the litigious photo was not taken out of its original context. Furthermore, the Court considered that the photo did not degrade the children nor debase their personality. Finally, the Court noted that the publication of the photo in the book followed the same aim as the one that was initially intended by the children, i.e. information on the existence of such diseases.

The Cour de Cassation (French Supreme Court for civil and criminal matters) reversed and annulled the judgement of the Court of Appeal on the grounds of Article 9 of the Civil Code (‘Everyone has the right to respect for his private life.’) and Article 8-1 of the European Convention on Human Rights (‘Everyone has the right to respect for his private and family life, his home and his correspondence.’). The Supreme Court ruled that the litigious photo was used in a different context, and therefore required a specific authorisation from the persons concerned. Moreover, the Supreme Court considered that even though a study of public interest exempts the user from having to obtain such an authorisation, it does not necessarily imply that the persons concerned may be identified.

Under French law, every person has an exclusive right to his image. The courts interpret the authorisation given for the reproduction of one’s picture very strictly. The image of a person may not be reproduced in a different context from the one that was authorised, or for a different aim.

In the present case, the photo was used in a different context: a school book, whereas the authorisation was given for a television programme to be broadcast live one evening for the raising of funds for research. However, the aim of the book seems to be very close to the one followed by the television programme (see the commentary of L. Costes (in Lamy, Journal du Droit – Actualités, 2007).


Wednesday, 22 August 2007

The City of Paris stops the use of its name as a trademark and domain name

High Court of First Instance of Paris (3rd Chamber, 2nd Section), 6 July 2007

The City of Paris brought an action before the High Court of First Instance of Paris against an association that registered under the name ‘Paris-Sans Fil’ (‘Wireless Paris’). The association had registered the trademark ‘Paris-Sans Fil’ in the classes 35, 38, 41 and 42, and had reserved the domain names ‘’, ‘’, ‘’ and ‘’.

In application of Article L.711-4 of the French Intellectual Property Code, which provides that ‘Signs may not be adopted as marks where they infringe earlier rights, particularly […] the name, image or repute of a local authority’, the City of Paris requested the annulment of the trademark.

The High Court held that in such a case a local authority has to demonstrate that the use of a litigious sign entails a likelihood of confusion with its own activities or that the use is likely to cause prejudice. In the present case, the Court noted that the City of Paris did bring evidence that it has developed activities in the field of information technologies, in particular in the development of high bandwidth and Wi-Fi, and that it therefore demonstrated that the use of the trademark entailed a risk of confusion on the part of the public. Consequently, the Court annulled the trademark ‘Paris-Sans Fil’.

For the same reasons, the Court held that the use of the name ‘Paris-Sans Fil’ and the registration of the domain names mentioned above, constitute a tort in the meaning of Article 1382 of the Civil Code, which provides that ‘Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.’

The Court ordered the association to change its name and to carry out the cancellation of the domain names. The association was ordered to pay symbolic damages to the City –1 euro– but the Court authorized the publication of the judgment in three newspapers or magazines of the plaintiff’s choice, and at the defendant’s expense.

It is not the first time the City of Paris successfully brings a case to court to defend its rights to its name, image and repute, on the grounds of Article L.711-4 of the Intellectual Property Code (see our commentary of the judgement of the High Court of First Instance dated 14 March 2007 at


Thursday, 16 August 2007

Actions based simultaneously on infringement of copyright and unfair competition

Cour de cassation, Commercial Chamber, 12 June 2007, n° 05-17.349

Under French law, unfair competition, which is based on tort law, offers much wider protection than that afforded by intellectual property. Therefore, where the outcome of the case on the grounds of intellectual property is uncertain, it is advisable to take action simultaneously on the grounds of infringement of intellectual property and unfair competition.

In the present case, the plaintiffs (the companies Bollé Protection and Bushnell Performance Optics Europe) took legal action against the company Euro Protection for the infringement of ten or so models of sunglasses. They based their action on the grounds of copyright infringement, as well as unfair competition.

The Court of Appeal of Paris dismissed the action based on copyright infringement, ruling that the models were not original in the meaning of copyright law. The Court also dismissed the action based on unfair competition, holding that the action was founded on the same facts as those put forward to claim the infringement of copyright, which was dismissed for lack of originality of the products.

The Cour de Cassation (French Supreme Court for civil and criminal matters) approved the Court of Appeal for ruling that the products were not original, but reversed the ruling of the Court in that it rejected the action based on unfair competition. The Supreme Court held that where an action is not successful on the grounds of an intellectual property right, the claimant is still entitled to base its action on the grounds of unfair competition.

Therefore, a plaintiff may claim at the same time that an act constitutes an infringement of an intellectual property right and unfair competition: if the judges rule that the plaintiff’s action is inadmissible on the basis of the intellectual property right, they will have to determine whether unfair competition is established by assessing all the facts stated, including the resemblance between the products.