tion that this qualification is used in a way not to cause confusion, as was done in this case.1

CONFUSION AS TO PRODUCT.-Many of the acts intended to produce confusion between similar products are, as explained above (see p. 562), prosecuted under the special laws of 1824 and 1857 relative to the usurpation of trade names and trade-marks. Some cases of this kind, however, are actionable only under the general provisions of the Civil Code. Among such may be mentioned the following:

1. The usurpation of trade names affixed to other than manufactured products or affixed to manufactured products by persons other than manufacturers.

2. The imitation of trade-marks which have not been registered or of distinctive marks which are not regarded as trade-marks.

3. The misrepresentation of products in prospectuses, catalogues, advertisements, etc.

4. The imitation of titles of literary, artistic, and other intellectual works.

The principles involved in these cases are the same as those already outlined for similar cases prosecuted under the above-mentioned special laws. (See pp. 560 and 562.) The designation, form, or color of the imitations must be sufficiently like the originals to cause confusion in the minds of the public, and the marks which are infringed must be distinctive in order to receive protection.

In a case decided in 1859 the court declared as unfair competition the act of adopting the same shape of flagon, the same method of sealing it, and the same form of label as was used by a competitor, thereby creating a confusion of a nature to deceive the public.2

In another case the court declared it to be unfair competition for a manufacturer, after having catalogued the products which another manufacturer furnished him, to make these products himself and to continue selling them under the same catalogue description and number as if they were the products of the original manufacturer.3

On the other hand the act of a merchant in selling a product similar to that of another, even in cans of the same form and dimensions, was held not to constitute an act of unfair or unlawful competition since the products were sufficiently differentiated by their labels, one having the name "Equateur," while the other had the name "Victoria." 994

In respect to the titles of publications the court has held that it was unfair to the proprietor of a financial journal, known as "le Capitaliste," for another journal of the same character to take the title

1 Riom, 1er déc., 1903; cited by Pouillet, op. cit. p. 860.

2 Paris, 3 août 1858, Barbier c. Simon; Annales 1859, p. 366.

3 Trib. comm. Seine, 7 nov. 1908, Société des Engins Graisseurs. c. Hameille; Annales 1909, II, p. 49.

Toulouse, 17 fév. 1904, Lebrasseur c. Canonne; Dalloz, op. cit. 1905, II, p. 68.

"le Petit Capitaliste; " for, although the two publications might be different in form, price, and other characteristics, the similarity of the title would cause the public to regard defendant's journal as a supplement or a reproduction of plaintiff's journal and obviously cause it injury.1

A publisher in Verdun changed the name of his journal from "Courrier de Verdun" to "le Courrier Verdunois." Suit was brought by the publisher of another journal with the title "le Petit Verdunois" for a cessation of the publication and for damages. It was shown that the exterior aspect, and especially the title of defendant's publication, was similar to that of plaintiff's publication. The tribunal of commerce of Verdun held that there was confusion between the two journals resulting from the analogy of their titles, from their size, the manner of folding, and the manner in which they were or could be presented to the reader. Upon appeal the court of Nancy held that in order for unfair competition to exist it is not necessary that there be complete usurpation of the title of a journal, that the possibility of confusion between the two journals in question appeared manifest. It resulted from the fact that the same word "Verdunois," terminated the title of each journal, and from the similarity of the characters used in printing the title.2

A seed merchant inserted an advertisement in the journal, Le Petit Jardin, offering gratis a brochure to the readers of this publication. The pamphlet which he sent to those who replied was his catalogue containing an advertisement of the competing journal Mon Jardin. The court held the use of the latter title was unfair competition, as well as the method employed to secure a list of plaintiff's subscribers.3

SUBSTITUTION OF ONE PRODUCT FOR ANOTHER.-Where competing products are similar in name, taste, color, etc., the possibility of confusion is frequently taken advantage of, especially by retailers, to substitute another product for the one demanded. This constitutes not only a fraud upon the consumer, but also an act of unfair competition against persons whose products are subject to discrimination. Under article 1 of the law of August 1, 1905, such substitution in making deliveries constitutes a penal offense if the goods desired were contracted for. (See p. 567.) Prior to the passage of this law article 423 of the Penal Code was applicable to such substitution. Most cases of this kind are prosecuted under the Civil Code.

A manufacturer of canned goods alleged that a certain distributor regularly delivered to customers demanding his products the prod

1 Trib. comm. Seine. 7 avril 1881, Banque parisienne c. Perret: Annales 1881, p. 281.

2 Nancy, 2 juill. 1906, Didier c. Laurent; Annales 1907, p. 20.

Paris, 18 juin 1908, Société de librairies et imprimeries horticoles c. Arnaud et Cic. et Brancher; Annales 1909, II, p. 24.

ucts of a competitor of similar name, who was a party to the fraud; also, that no warning was given the customers, who believed that they were getting the products requested, or, when the customer perceived that the product asked for had not been delivered to him and demanded an explanation, affirmed that the products were genuine and not an imitation. The court held that if such acts occurred and were customary, they manifestly constituted unlawful acts of a nature to render the defendant liable, but in this case the proof of the allegations was not clear, nor was it established that the unfair acts were habitual.1

A liquor dealer served a customer who demanded some wine made by plaintiff with another kind bearing a similar name. The court held that such a substitution constituted an unfair act when accompanied by circumstances which rendered possible a confusion between the two products and which resulted in deceiving the consumer. The plea of the defendant that he had posted a placard in his establishment stating that he served only certain brands was rejected, for, in the opinion of the court, this notice might easily have escaped the consumer and was insufficient to remove all chance of error.2

A dealer's employee without calling the customer's attention to the substitution, gave a customer who asked for a jar of Simon facial cream a jar of another make bearing the label "Beauty cream; Paul Simon, Paris." The court held that a retailer who delivers an article similar to that specified without warning the purchaser of the substitution is liable for damages to the injured manufacturer even if done without fraudulent intent. It was not clear in this case whether the defendant had acted with fraudulent intent or not.3

DEFAMATORY AND DISPARAGING STATEMENTS.-According to French law, a merchant or manufacturer has the right to use every legitimate means in advertising the merits of his goods or of his establishment, but he must refrain from doing anything of a nature to injure the credit of his competitors or to disparage their business. It is not considered unfair for a person to indulge in the most extravagant claims for his own products, so long as he does not refer to a competitor disparagingly.*

In order to constitute an act of unfair competition disparaging statements must be publicly made. A statement made confidentially or privately by one person to another would not afford ground for an action. Disparaging statements which do not mention a com

1 Paris, 1août 1901, Amieux et Comp. c. La Laiterie du Nord; Dalloz. op. cit., 1903, II, p. 157.

2 Paris, 8 juin 1904, Marius Dubonnet c. Mercier; Annales 1904, p. 355.

3 Grenoble (1 ch.), 26 juin, 1912, J. Simon et Cie. c. Schicklé; Annales 1913, p. 344.

4 Pandectes Françaises, tome 20, p. 72; Pouillet, op. cit., p. 959. Pouillet, op. cit., p. 966.

petitor or his products or establishment by name may nevertheless be considered unfair competition if the allegations or insinuations are of a nature to cause injury to another. Such is the case when the public might easily understand to whom the statements refer or when the statements relate to all those who manufacture in a given locality or follow a special method or process.1 The circulation of statements that are true may also constitute unfair competition if done with the intent to injure.

The cases cited below illustrate various forms of disparagement and show the manner in which the courts have dealt with them.

The Morning News, an English newspaper published in Paris, inserted in several numbers some tables comparing the number of copies sold by it with the number sold by another English paper published in Paris, making prominent the smaller number sold by the latter. The court declared the act to be unfair competition and awarded damages to the plaintiff. In part, the court said:

The act by the director of the Morning News of using the name of Galig. nani's Messenger, whether in the said tables or in the different articles, for the purpose of disparaging the journal which bears this name constitutes an abuse and an act of unfair competition, injurious to the plaintiff, which it is proper to bring to an end.

A druggist distributed in the neighborhood of the shops of his competitors a prospectus containing the notice "Before calling on your regular druggist consult this price list in the interest of your pocketbook and your health." The court declared this to be unfair competition.3

The Mutual Life Insurance Co., a New York corporation, and the manager of its branch office at Paris, while waging a competitive campaign against the French life insurance companies, circulated several prospectuses criticizing the management and results of operations of these companies, especially the Compagnie d'assurances générales. In one of these prospectuses it was stated that the general expenses of this French company were twice those of the Mutual. In another it was stated that the French company was run in the interest of its shareholders and not its policyholders. Elaborate statistical calculations based on the financial reports of the companies compared were presented in support of these charges. The Mutual also reprinted and circulated, with the consent of the author, a document by a French writer, which tended to show that the French company had conducted its life insurance business at a loss in 1891 instead of at a profit.

1 Pouillet, op. cit., pp. 966, 976.

Trib. comm. Seine, 21 mai 1884, Galignani's Messenger c. Morning News; Annales 1885, p. 119.

3 Trib. comm. Melun, 11 déc., 1906; Baillet, Boudier et autres c. Crestey; Annales 1907, II, p. 46,

Suit to recover damages was brought against the Mutual by the French company especially attacked in these prospectuses. It was shown that the calculations used to support the various disparaging statements circulated by the Mutual, whether intentional or not, were erroneous. The court held the acts of the Mutual to be unfair or unlawful competition in the sense of articles 1382 and 1383 and awarded damages. The contention of the defendants that they were only retaliating against attacks of their competitors was rejected.1 In respect to the right of merchants to disparage rivals or their products the court made the following statement:

The privilege which belongs to every merchant to praise his products in terms, the propriety of which, as a general principle, it is not for the tribunals to determine, does not confer on him the right to attack a competitor or to disparage or to depreciate the articles which he exploits, even by the way of simple comparison, with the aim of diverting the clientele to his own profit. * * The tribunals are not required in principle to ascertain whether the criticisms formulated by a merchant against his competitor are well founded.

A gunsmith exposed in the window of his shop a fowling piece with a cracked barrel bearing the placard: "Fracture of a St. Etienne gun barrel by a single 4-gram cartridge, casting doubt upon its resistance." The manufacturer whose product was thus disparaged brought suit and the court ordered reparation to be made.2

The firm of Jules Mumm & Co., dealers in champagne, addressed a circular letter of an alleged confidential nature to their agents for distribution to their clientele, to which was appended a table containing in the first column the names of certain houses, especially that of the plaintiff, together with the dates of their foundation, and in a second column opposite, the similar names of older houses, the purpose of the circular and table being to warn customers that the concerns in the first column were worthless and were intended only to profit from the reputation of the older houses, including that of defendant, by means of confusion resulting from similar names. The court held this act to be unfair competition and awarded damages.3 The court said in part:

Although it is lawful for every merchant in his circulars to praise the products of his establishment or the establishment itself, on the other hand he is absolutely prohibited from disparaging therein those of his competitors, especially in designating them by name and in terms susceptible of injuring them. These acts constitute a grave wrong (faute grave) and an act of unfair competition which has caused the house of Léon Chandon (plaintiff) considerable injury.

1 Paris, 23 juin 1896. Compagnie d'assurances générales c. Mutual Life, Baudry et Béziat d'Audibert; Annales 1897, pp. 30, 32.

2 Trib. comm. Seine, 27 juin 1907, Chambre syndicale des fabricants d'armes de Saint Etienne c. Pigeon; Annales 1908, II, p. 86.

3 Trib. comm. Reims, 9 sept. 1904, François c. Jules Mumm et Cie.; Annales 1910, pp. 175, 177.

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