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).
BRAD SPITZ
www.bradspitz.com
IPIT NEWS FROM FRANCE, by YS Avocats law firm, www.ys-avocats.com
Thursday, 30 August 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 http://juriscom.net/jpt/visu.php?ID=954
http://juriscom.net/jpt/visu.php?ID=954
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 ‘paris-sansfil.info’, ‘paris-sansfil.fr’, ‘paris-sansfil.org’ and ‘paris-sansfil.com’.
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 http://juriscom.net/actu/visu.php?ID=923).
BRAD SPITZ
www.bradspitz.com
http://juriscom.net/jpt/visu.php?ID=954
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 ‘paris-sansfil.info’, ‘paris-sansfil.fr’, ‘paris-sansfil.org’ and ‘paris-sansfil.com’.
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 http://juriscom.net/actu/visu.php?ID=923).
BRAD SPITZ
www.bradspitz.com
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.
BRAD SPITZ
www.bradspitz.com
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.
BRAD SPITZ
www.bradspitz.com
Friday, 27 July 2007
The Prince of Monaco has the right to respect for his private life
Cour de cassation, 1re civ., 27 February 2007, n° 06-10.393, Hachette Filipacchi and others v Albert Grimaldi
In 2005, Paris-Match, the French magazine owned by Hachette Filipacchi, published an interview with Mrs Coste, revealing the birth of her baby boy, fathered by Albert Grimaldi, Prince of Monaco. Several photos illustrated the text. The cover of the magazine had the title ‘Albert of Monaco: Alexandre, the secret child, Nicole, his mother, tells their long story’. Prince Albert brought the case before the High Court of First Instance arguing that the publication infringed on his privacy. The Court condemned Hachette Filipacchi, on the grounds of Article 9 of the French Civil Code, to damages and to the publication of the ruling. The Court of Appeal of Versailles confirmed the ruling. Hachette Filipacchi did not accept the ruling, and appealed before the Cour de Cassation (French Supreme Court for civil and criminal matters).
Article 9 of the Civil Code provides that ‘Everyone has the right to respect for his private life.’ These provisions are rather laconic. The judges generally try to strike a balance between the right to privacy and three forms of justifications: the consent of the person concerned, the reporting of current events and the contribution to a debate of public interest (see the commentary of A. Lepage on the ruling of 27 October 2007, Communication Commerce Electronique, n° 7-8 July-August 2007, page 41 and J.-P. Gridel, Protection de la vie privée: rupture ou continuité?, Gazette du Palais, 18-19 May 2007, p. 4 et seq). For example, a preceding case (Cour de Cassation 1re civ, 24 October 2006, n° 04-16.706) ruled that the fact that a mayor and municipal councillors were freemasons could be disclosed, since the mayor had been charged with forgery and favouritism, and that the disclosure came within the context of a judicial debate and was justified by being information for the public on a debate of general interest.
In the present case, the Cour de Cassation, on 27 February 2007, considered that the reporting of current events could not prevail over the prince’s right to respect for his privacy, and that there was no public debate on the subject.
Before the Supreme Court, Hachette Filipacchi argued that the Court of Appeal of Versailles had misapplied Articles 9 of the Civil Code and 10 of the European Convention on Human Rights, since the disclosure of Prince Albert’s paternity, Prince Albert being a reigning sovereign since April 2005, was relevant to a debate on public affairs, because of the functions of the person concerned, and was justified by the right to information of the readership.
The Supreme Court dismissed Hachette Filipacchi’s arguments, stating that any person has the right to respect for his private life, whatever his station, birth or functions may be. Moreover, the Supreme Court notes that, at the time the article was published, the public had no knowledge of the existence or filiation of the child, and that the constitution of the Principality excludes any possibility of the child acceding to the throne, since he was born out of marriage wedlock, while Hachette Filipacchi did not even argue that any public debates were being held on the subject in Monaco or France. The Court finally notes that the article digressed, writing about the relationship between Mme Coste and Prince Albert, his reaction to the announcement of the pregnancy and his subsequent behaviour towards the child.
The Supreme Court therefore approved the Court of Appeal for concluding that the absence of any current event or any debate of general interest for which the legitimate information of the public would have justified the disclosure of information at the time of the publication of the litigious article, and dismissed the appeal of Hachette Filipacchi against the ruling of the Court of Appeal.
The Supreme Court carefully verified whether the right of the public to information justified the disclosure of information on the prince’s privacy. In another case, the Supreme Court ruled that a birth in a princely family (actually the same family) meets the necessity of information and may be disclosed to the public where the birth is likely to have political or dynastical implications (Cour de Cassation 2me civ, 24 October 2006, n° 02-11.122).
BRAD SPITZ
www.bradspitz.com
In 2005, Paris-Match, the French magazine owned by Hachette Filipacchi, published an interview with Mrs Coste, revealing the birth of her baby boy, fathered by Albert Grimaldi, Prince of Monaco. Several photos illustrated the text. The cover of the magazine had the title ‘Albert of Monaco: Alexandre, the secret child, Nicole, his mother, tells their long story’. Prince Albert brought the case before the High Court of First Instance arguing that the publication infringed on his privacy. The Court condemned Hachette Filipacchi, on the grounds of Article 9 of the French Civil Code, to damages and to the publication of the ruling. The Court of Appeal of Versailles confirmed the ruling. Hachette Filipacchi did not accept the ruling, and appealed before the Cour de Cassation (French Supreme Court for civil and criminal matters).
Article 9 of the Civil Code provides that ‘Everyone has the right to respect for his private life.’ These provisions are rather laconic. The judges generally try to strike a balance between the right to privacy and three forms of justifications: the consent of the person concerned, the reporting of current events and the contribution to a debate of public interest (see the commentary of A. Lepage on the ruling of 27 October 2007, Communication Commerce Electronique, n° 7-8 July-August 2007, page 41 and J.-P. Gridel, Protection de la vie privée: rupture ou continuité?, Gazette du Palais, 18-19 May 2007, p. 4 et seq). For example, a preceding case (Cour de Cassation 1re civ, 24 October 2006, n° 04-16.706) ruled that the fact that a mayor and municipal councillors were freemasons could be disclosed, since the mayor had been charged with forgery and favouritism, and that the disclosure came within the context of a judicial debate and was justified by being information for the public on a debate of general interest.
In the present case, the Cour de Cassation, on 27 February 2007, considered that the reporting of current events could not prevail over the prince’s right to respect for his privacy, and that there was no public debate on the subject.
Before the Supreme Court, Hachette Filipacchi argued that the Court of Appeal of Versailles had misapplied Articles 9 of the Civil Code and 10 of the European Convention on Human Rights, since the disclosure of Prince Albert’s paternity, Prince Albert being a reigning sovereign since April 2005, was relevant to a debate on public affairs, because of the functions of the person concerned, and was justified by the right to information of the readership.
The Supreme Court dismissed Hachette Filipacchi’s arguments, stating that any person has the right to respect for his private life, whatever his station, birth or functions may be. Moreover, the Supreme Court notes that, at the time the article was published, the public had no knowledge of the existence or filiation of the child, and that the constitution of the Principality excludes any possibility of the child acceding to the throne, since he was born out of marriage wedlock, while Hachette Filipacchi did not even argue that any public debates were being held on the subject in Monaco or France. The Court finally notes that the article digressed, writing about the relationship between Mme Coste and Prince Albert, his reaction to the announcement of the pregnancy and his subsequent behaviour towards the child.
The Supreme Court therefore approved the Court of Appeal for concluding that the absence of any current event or any debate of general interest for which the legitimate information of the public would have justified the disclosure of information at the time of the publication of the litigious article, and dismissed the appeal of Hachette Filipacchi against the ruling of the Court of Appeal.
The Supreme Court carefully verified whether the right of the public to information justified the disclosure of information on the prince’s privacy. In another case, the Supreme Court ruled that a birth in a princely family (actually the same family) meets the necessity of information and may be disclosed to the public where the birth is likely to have political or dynastical implications (Cour de Cassation 2me civ, 24 October 2006, n° 02-11.122).
BRAD SPITZ
www.bradspitz.com
Wednesday, 18 July 2007
The Tony Parker and Eva Longoria Wedding : a non happening (?)
A few days ago we all saw the “so no pictures” of the Parisian wedding of Tony Parker and Eva Longoria on television.
The crowds of curious onlookers attracted by the media hype hovered around the “non event” that has been the most publicized invisible celebrity event of the year.
Buses with heavily tinted windows and large black umbrellas made to resemble protective screens stopped any chance of a stolen glance.
And what of the metal barriers that pushed the public as far away as possible, turning a public area into a totally private place?
Was it to protect the couple’s privacy? No way!!!
It’s business, business and business as ever! And with total disregard for tradition and the laws of marriage, which is legally a public event.
And remember, these stars live off the public. They owe their fame and fortune to their devoted followers. But the public is naïve, faithful and devoid of any ulterior motive. They wait for hours in the hope of catching a glimpse. Dream on Desperate Followers.
But no, this public will get nothing. And if they want to see anything at all they will have to buy the magazine that paid such a high price for an exclusive of the wedding photos. Pictures that are said to be soaring out of sight on the internet auction.
Yes, it is actually nil/null, literally as well as figuratively.
What a nil event to deprive the Faithful of attending the traditional photo taking session that customarily takes place outside the town hall and then the church. Nil, hiding a much more serious null event – the wedding itself.
The act of being married in “huis clos” simply annuls the marriage.
Indeed, Article 165 of the French Civil Code states that a wedding must be held in public – ie in a hall with open doors allowing the public to enter freely. But what happens when the town hall is so inaccessible, that entrance is impossible irrespective of whether the doors are closed or open?
jllavoc (aka Jean-Louis LANGLOIS)
www.bradspitz.com
The crowds of curious onlookers attracted by the media hype hovered around the “non event” that has been the most publicized invisible celebrity event of the year.
Buses with heavily tinted windows and large black umbrellas made to resemble protective screens stopped any chance of a stolen glance.
And what of the metal barriers that pushed the public as far away as possible, turning a public area into a totally private place?
Was it to protect the couple’s privacy? No way!!!
It’s business, business and business as ever! And with total disregard for tradition and the laws of marriage, which is legally a public event.
And remember, these stars live off the public. They owe their fame and fortune to their devoted followers. But the public is naïve, faithful and devoid of any ulterior motive. They wait for hours in the hope of catching a glimpse. Dream on Desperate Followers.
But no, this public will get nothing. And if they want to see anything at all they will have to buy the magazine that paid such a high price for an exclusive of the wedding photos. Pictures that are said to be soaring out of sight on the internet auction.
Yes, it is actually nil/null, literally as well as figuratively.
What a nil event to deprive the Faithful of attending the traditional photo taking session that customarily takes place outside the town hall and then the church. Nil, hiding a much more serious null event – the wedding itself.
The act of being married in “huis clos” simply annuls the marriage.
Indeed, Article 165 of the French Civil Code states that a wedding must be held in public – ie in a hall with open doors allowing the public to enter freely. But what happens when the town hall is so inaccessible, that entrance is impossible irrespective of whether the doors are closed or open?
jllavoc (aka Jean-Louis LANGLOIS)
www.bradspitz.com
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