codes or statutes of France, is nevertheless in general use by the courts. A definition frequently found in legal treatises is: " 1 An act committed in bad faith with a view to producing confusion between the products of two manufacturers or of two merchants, or which, without producing confusion, casts discredit upon a rival establishment. This definition does not fully cover the multitudinous acts which the courts have considered as unfair competition. According to one writer, these acts fall logically into four general classes, which may be described as follows: 3 (1) Acts intended to produce confusion between similar establishments, such as the adoption of similar designations or the imitation of the exterior characteristics, interior fittings, etc., of shops or stores. (2) Acts intended to produce confusion between the products of two different establishments, such as the imitation of trade-marks, trade names, forms of containers or wrappers, forms of products, titles of works, etc. (3) Acts which, without producing confusion, are intended to divert the clientele of a manufacturer or merchant, such as magnifying one's own merits or the merits of one's own goods, on the one hand, or vilifying another or disparaging another's goods, on the other hand. (4) Acts of unfair competition resulting from the violation of contracts and agreements. According to French writers, unfair competition relates in principle only to transactions between persons engaged in similar lines of business. The word "competition" assumes, in effect, a struggle between rivals for the purpose of winning the favor of the public for their products or services. There are some cases of unfair competition in French reports between individuals other than merchants, as, for example, notaries, attorneys, trustees, philanthropic societies, etc.4 The cardinal principle of unfair competition in France, as shown by the court decisions, is intent to injure. French jurisprudence makes a distinction between unfair competition (concurrence déloyale) and unlawful competition (concurrence illicite), based on the existence or nonexistence of wrongful intent. Where an act is done with intent to injure or deceive it is considered an act of unfair competition, but where a person in good faith commits a legal wrong 1 Allart says: "There does not exist a law on unfair competition; the legislator, in fact, can not codify a matter whose elements present an extreme diversity without a sufficient bond to unite them." (H. Allart, Traité théorique et pratique de la concurrence déloyale, Paris, 1892, p. V.) 2 Pouillet, Traité des marques de fabrique et de la concurrence déloyale, 6me éd., p. 716. Fuzier-Herman, Répertoire Général Alphabétique du Droit Français, tome 13, p. 63. 4 The Court of Cassation has decided that the act of a notary in establishing in a community situated 8 kilometers distant from his legal residence an office in which he exercised the functions of a notary constituted an act of unfair competition against a resident notary in the same community. In this case the defendant also rented a house under the name of his sister and had his name appear upon the door. (Cass. req., 6 janv., 1908, J. c. P.; Annales de la Propriété industrielle, artistique et littéraire, 1908, II, p. 69.) Hereafter this publication is cited as Annales. or simply through negligence or carelessness injures another it is considered an act of unlawful competition. Such an act is regarded as a tort and affords a private right of action to the injured party.1 Acts of unfair competition and of unlawful competition in France have been actionable under articles 1382 and 1383 of the Civil Code since its adoption in 1808.2 On the basis of article 1382 the courts have developed the jurisprudence of unfair competition. The language of these two articles is as follows: ART. 1382. Any act whatever by a person which causes injury to another obliges him by the fault of whom it happened to compensate it. ART. 1383. Each one is responsible for the injury which he has caused not only by his act but also by his negligence or by his imprudence. Actions to enjoin unfair practices and to recover damages under these articles are conducted before the tribunals of commerce.3 In addition to the jurisprudence developed on the basis of these two articles, special laws have been passed from time to time making certain practices penal offenses punishable with fine or imprisonment. The Penal Code also contains a number of articles relating to particular acts of unfair competition. Criminal prosecutions under these penal provisions, however, do not take from the individual the right of action for damages under the general provisions of law contained in the above articles of the Civil Code. SPECIAL LAWS. The more important acts of unfair competition covered by special laws are: 1. The alteration or substitution of names affixed to manufactured products. (Law of July 28, 1824.) 2. Misuse of the title of patentee. (Law of July 5, 1844.) 3. The misappropriation or misuse of trade-marks. 23, 1857.) (Law of June 4. The practice of fraud in the sale of merchandise. (Law of Aug. 1, 1905.) 5. The misappropriation of industrial awards. (Law of 1886, superseded by the law of Aug. 8, 1912.) In addition to the above laws, there are various other decrees or acts of less importance relating in a general way to the subject of unfair competition." 1 Pouillet, op. cit., p. 723. 2 Lobe, Bekämpfung des unlauteren Wettbewerbs, I. S. 80. Each has a president There are 214 such 3 The tribunals of commerce are courts composed of merchants. and at least two members chosen by the merchants of a district. courts in France. Their jurisdiction is confined to commercial cases. to the courts of appeal, of which there are 26. (Cuche, Manual de Procédure civile et commerciale (1909), p. 69.) For a list of these laws, see Lobe, op. cit., I. S. 83–85. THE LAW OF 1824. The law of July 28, 1824,1 prohibits the usurpation of commercial names used to distinguish manufactured articles. Its purpose is to protect the manufacturer who affixes to his goods as a distinctive mark his personal name, name of his establishment, or name of his place of manufacture. This law has only two articles, the second of which is not important in this connection. Article 1 is as follows: Whoever shall affix to manufactured articles or make appear on them by addition, curtailment, or any alteration whatever, the name of a manufacturer other than the one who is the producer, or the name of a factory other than the one in which the said articles were made, or, finally, the name of a place other than that of manufacture shall be punished with the penalties prescribed in article 423 of the Penal Code, without prejudice to an action for damages, if it takes place. Every merchant, middleman, or retailer shall be liable to prosecution if he knowingly offers for sale or puts in circulation articles marked with names substituted or altered. Article 423 of the Penal Code, referred to in the first paragraph, provided a penalty of imprisonment of from three months to a year and a fine of not less than 50 francs, but not exceeding onefourth of the amount paid for restitution and damages. These penalties have been superseded by the penalties provided for in section 15 of the law of August 1, 1905. They now consist of imprisonment from three months to a year or a fine of from 100 to 5,000 francs, or both. The law of 1824 does not prohibit the usurpation or imitation of names affixed to products of nature, nor does it prohibit the usurpation or misuse of the names which merchants or middlemen may affix to the manufactured articles which they handle, or the use of such names in any other form than by affixing, such as in prospectuses, advertisements, or newspaper notices. These defects have led to a movement for a revision of the law. A bill for this purpose was introduced in 1911.3 By "name of a manufacturer" is meant a person's family name or Christian name or both. Assumed names are also protected. Imaginary names are only protected when used as assumed names. All the purely imaginary names designating not the manufacturer but the product, such as commercial designations and fancy names, are not protected by the law of 1824. If used as trade-marks they are protected by the law of 1857. (See p. 562.) The imitation of a name need an infraction of the law of 1824. not be exact in order to constitute If it is sufficiently similar to cause 1 Loi des 28 juillet-4 août, 1824, relative aux altérations ou suppositions de noms dans les produits fabriqués. * Pouillet, op. cit., pp. 646, 667. 3 Pouillet, op. cit., pp. 576, 586. confusion, the courts will protect the plaintiff. Pouillet makes the following statement on this point:1 Let us hold as certain that it is not necessary that the name be identically copied in order to constitute a misdemeanor; the penalties of the law of 1824 would be incurred even though the name usurped should be accompanied by a Christian name (prénom) other than the real name; also if one letter should be substituted for another; or if the name should be slightly altered while keeping its general aspect and its principal sound. The law of 1824 not only prohibits the usurpation of trade names, but also the substitution of one name for another. The words in article 1, "make appear by alteration, addition, or curtailment," have been interpreted by the courts to apply to those cases in which a person removes the name of a manufacturer having a reputation from some of the latter's goods which he has procured, and replaces it with his own name in order to acquire for himself the same reputation.2 It also applies to cases where a person appropriates the bottles or other forms of containers of a competitor bearing a name protected by this law and sells his goods therein. The court so decided in a case in which a manufacturer of seltzer water used some syphons bearing the name of another manufacturer.3 The name usurped or imitated does not have to be affixed to manufactured goods themselves. It is sufficient if it is affixed to the containers or wrappers of the goods. The court has held, however, that the use of a usurped name on the invoices or bills of lading accompanying the products should not be construed as being affixed to the products themselves." In judging whether a name has been usurped or imitated, the courts first inquire whether that name is distinctive and special, or whether it is generic and necessary to describe the object to which it has been affixed. Wherever a name has become a common name of manufactured articles, the courts refuse to protect the manufacturer in its use. A family name is rarely of this character, since in principle it constitutes an inalienable possession. Only when it has been given to an object for which no other name exists will the courts consider it open to general use. Names of establishments or places of manufacture, however, become generic more often than family names. In the second place, the courts inquire whether the imitation is sufficiently like the original name to cause confusion between two 1 Pouillet, op. cit., p. 651. 2 Pouillet, op. cit., p. 618. Paris (4 ch.), 30 juill., 1909; Annales 1910, p. 50, for full title see p. 558, note 4. 3 Paris (4 ch.), 30 juill. 1909; Annales 1910, p. 50, for full title see p. 558, note 4. 1913, I., p. 21. Cass. crim., 18 nov. 1904; Annales 1905, p. 182. 30035°-16-36 products. Hence, the cases of unfair competition prosecuted under the law of 1824 always involve confusion of products. They are similar in principle to cases of confusion between competing establishments. A few cases brought under this law are given below. For additional cases of a similar character, see page 573. A dealer in firearms arranged with the manufacturer to affix to his goods the name "Société française des cycles, armes et sports," in imitation of the name used by a competitor" Manufacture française d'armes et cycles." The court held that, in using this name as a designation of their products, the defendant dealer and manufacturer had created confusion between their products and those of plaintiff in violation of article 1 of the law of July 28, 1824.1 A manufacturer of vinegar located at Fives-Lille placed on his casks a vignette bearing the following notice: "Guaranteed pure vinegar-special make of Orleans vinegar." The vignette and the type were combined in such a way as to make prominent the words "Orleans vinegar" and thereby to lead the public to think that the cask contained vinegar coming from Orleans. The court held that this constituted a violation of article 1 of the law of July 28, 1824. The plea of defendant that the word "Orleans" had come into general use and no longer referred to the provenance of the vinegar, but simply to a process of manufacture, was rejected.2 LAW OF 1844. The law of July 5, 1844,3 contains, in addition to the various regulations and details of administration of patents, one article relating especially to unfair competition. Article 33, which prohibits one form of assuming false titles in order to magnify one's own merits and thereby to attract a clientele, is as follows: ART. 33. Whoever, on the insignia, announcements, prospectuses, placards, trade-marks, or stamps, shall take the title of patentee without possessing a patent issued in conformity with the laws or after the expiration of a former patent, or who, being a patentee, shall mention his title of patentee or his patent without adding to it these words, "without guarantee of the Government," shall be punished with a fine of from 50 to 1,000 francs. In case of a second offense the fine may be doubled. LAW OF 1857.-The law of June 23, 1857, makes not only the infringement but also the misappropriation or misuse of registered trade-marks a penal offense. The latter practices, especially, constitute acts of unfair competition since they lead to confusion regarding competing products, and thus injure competitors whose trade-marks are misappropriated or misused. In France, as in some other countries, unfair practices involving registered trade-marks are 1 Cass. crim. rej., 25 oct. 1907, Gaucher et Baley, c. Manufacture française d'armes et cycles; Annales 1908, I, p. 170. 2 Cass. crim., 28 nov. 1895, Beaucamps c. Dessaux; Annales 1896. p. 149. 3 Loi du 5 juill. 1844, sur les brevets d'invention. Loi du 23 juin 1857, sur les marques de fabrique et de commerce, modifiée par la loi du 3 mai 1890. |