According to article 9 less severe penalties are provided for the failure to place on certain goods the trade-marks which have been declared obligatory. Article 11 provides that the penalties prescribed by articles 7, 8, and 9 may be doubled in case of a second offense. Violations of these provisions are prosecuted before the civil tribunals.

The various acts specified in articles 7 and 8 of the law as constituting misdemeanors are:

1. The counterfeiting of a trade-mark.

2. The fraudulent imitation of a trade-mark of a nature to deceive the purchaser.

3. The fraudulent affixing to one's goods of a trade-mark belonging to another.

4. The use of a trade-mark, counterfeited or fraudulently imitated. 5. The sale or offer for sale knowingly of goods bearing trademarks counterfeited or fraudulently imitated.

By" counterfeiting" is meant the servile reproduction of another's trade-mark, while by "fraudulent imitation" is meant the disguised reproduction. The act of reproducing is considered entirely distinct from the act of using a trade-mark. It constitutes a misdemeanor if the reproduction is such as would deceive the public.

The practice of imitating trade-marks is apparently much more common than reproducing them exactly. The forms of imitations. are innumerable. In determining whether such practices constitute misdemeanors within the meaning of the law the courts must take each case on its merits. The two guiding principles are, first, whether there has been fraudulent intent; and, second, whether the imitation is of a nature to deceive the purchaser. If the imitation is not such as would produce a confusion between rival products in the mind of the public no offense is committed. It is not necessary, however, to prove that the purchaser has actually been deceived.

The method employed by the courts to determine whether an imitation is a misdemeanor is described by Dalloz in a summary of a case as follows:2

A trade-mark of manufacture or commerce constitutes a fraudulent imitation of a previously registered trade-mark if in comparing the two trade-marks and examining their elements in detail one finds a similarity of sound and appearance of a nature to deceive the ear and the eye and resemblances which can not be the result of accident and have been manifestly chosen and adapted to the unlawful purpose of producing confusion between the trade-marks.

The courts have considered as fraudulent imitations the trademarks "Chocolat du Meunier" or "Chocolat le Meunier" as compared with "Chocolat Menier:" "Fromages de la Petite Normande "

1 Pouillet, op eit, p. 297.

Req., 30 oct. 1901, Voisin c. Juppet; Dalloz, Jurisprudence Générale, 1902, I, p. 32.

as compared with "Petits Fromages Normandes." But the courts refused to consider as a fraudulent imitation the trade-mark" Graisse Monopole" as compared with "Vaseline Monopole" when placed in dissimilar receptacles, or Quinquina Saint-Marcel“ as compared with "Saint-Raphael Quinquina." 2

A common practice is for a merchant to imitate the trade-mark of a competitor, as closely as possible, being careful to add his own name to it in the belief that this will prevent any prosecution for fraudulent imitation. According to Pouillet the courts do not hesitate to recognize such practices as violations of the law of 1857. The same principle applies where the essential features of a trademark are reproduced but different words are substituted for those used on the original. An umbrella manufacturer registered as a trade-mark a triangle within which were arranged three umbrellas and the word "Veritas." A competitor adopted a similar trade-mark but changed the word "Veritas" to "Tigre." He also put on the base the words "Registered trade-mark" when it had never been registered, thereby showing wrongful intent. The court held this to be a violation of the law of 1857.3

By fraudulent affixing of another's trade-mark is meant the act of the one who procures the real trade-mark of another person and uses it to mark his own products. This practice is most common in the case of products of such a nature that the trade-marks must be affixed to their wrappers or containers rather than to the products themselves, thus affording an opportunity to use these wrappers or containers for the sale of goods of inferior quality.

A manufacturer of seltzer water put his product on sale in siphons bearing the trade-marks of a competitor. He was adjudged guilty of infraction of the law of 1857.*

In another case the Court of Cassation held that a merchant who sold to consumers in a bottle bearing the words "Amer Picon. Philippeville" liquor not produced by the house of Picon committed the misdemeanor of fraudulently aflixing the trade-mark of another, which act was prohibited by section 7 of the law of 1857.5

Every fraudulent use of a trade-mark falls under the scope of the law of 1857. Not only the affixing of a usurped trade-mark to goods but also the reproduction of it in announcements or prospectuses can constitute a misdemeanor. A frequent practice is the use of the real trade-mark in advertisements with the purpose of preparing for a

1 Pouillet, op cit., p. 307.

* Pouillet, op. cit., p. 312.

Aix. 16 janv. 1908, Revel père et fils et Courtinat c. Ogliastro et autres; Annales 1908. I. p. 223.

4 Trib. civ. Seine (3me ch.), nov. 1909, Chambre Syndicale des Eaux Gazeuses et Landinet c. Plarut; Annales 1910, I, p. 55.

* Cass, req., 5 août 1890, P'icon et Cie, c. Mollier; Annales 1893, p. 256.

substitution of a emeting product for the one bearing the trade

The following case illustrates such a fraudulent use:

A pharmacist placed on the glass front of his store a placard bearing the words in large type "Goudron et capsules Guyot à 1 f. 25." When customers called for the preparation known as "Goudron Guyot" (Guyot tar) they were given a flask covered in such a way that the purchaser could not read the label of the flask bearing “Goudron Georges Guyot de Chalon-sur-Saône." The court held that it is not unlawful for a druggist to use a placard bearing a trademark (registered if he only intends to announce the sale of the products manufactured by the proprietor of the trade-mark; but it is otherwise when the placard is used as a means to sell competing products.

In a similar case a store attempted to sell under the trade-mark of a certain manufacturer whose goods it had advertised the goods of another competing concern. Regarding the application of section 7, the court said (p. 351):

The affixing to a product of a usurped trade-mark and the use of the trademark constitute two different misdemeanors, the one provided for by paragraph 2 and the other by paragraph 1 of article 7 of the law [of 1857]. The latter provision has a much more extended field of application than the former. It aims to reach the usurpation of the trade-mark under whatever form it may present itself and to prevent the public from being deceived by the usurpation. According to doctrine and jurisprudence, it affects the use of the trade-mark in invoices and it does not appear why it would not affect prospectuses and catalogues, which quite as well as invoices are susceptible of deceiving the public.

Selling or putting on sale articles bearing trade-marks which are counterfeit or fraudulent imitations constitutes a misdemeanor if it is done knowingly. The courts must determine in each case whether the merchant or retailer had knowledge that the articles sold bore fraudulent trade-marks.

In a case in which a retailer sold goods bearing a counterfeited label concurrently with the goods bearing the original trade-mark the court held that he could not invoke his good faith, for by simple inspection of the two products he could convince himself of the fraudulent imitation. He was, therefore, held to have violated section 8 of the law.*

A manufacturer of ivory combs imitated the trade-mark of a competitor, which was a picture of an elephant, with some words above and below, but substituted the word “Mammoth" in place of those

1 Annales 1909. I, p. 267, footnote.

# Cass. civ., 15 février 1909, Champigny et Cie. c. Yvon: Annales 1909, I, p. 266.

и Lyon, 6 juill, 1912, Laniel c. Société des Grands Magasins des Cordeliers; Apnales 1913, I, p. 349.

* Montpellier, 23 août 1875, F. Prot et Cie. c. Mongauzi; Annales 1875, p. 365.

on the original trade-mark. The proprietor of the original trademark brought suit against him, and also against a retailer who had sold the combs with the usurped trade-mark. The court held that this retailer, because of his trade, could not be ignorant of the existence of the different trade-marks serving to distinguish combs, and that in putting on sale the combs of the defendant manufacturer, bearing the picture of an elephant, he had made himself an accomplice in the fraudulent practices of the latter and was jointly liable for the injury caused.1

LAW OF 1905.-The law of August 1, 1905,2 relates primarily to the prevention of fraud in the sale of merchandise and of adulterations of foodstuffs and agricultural products. In some respects this law, especially article 1, is supplementary to the laws of 1824 and 1857, and is therefore of some interest in respect to the question of unfair competition. Its aim, however, is primarily to protect the consumer against frauds of a nature to injure the public health. Article 1 prescribes a penalty of imprisonment for from three months to one year or a fine of from 100 to 5,000 francs, or both, for anyone attempting to deceive a contracting party (1) as to the nature, the substantial qualities, composition, and useful content of any commodity; (2) as to the kind or origin of commodities, provided that the false designation is the principal cause of sale; and (3) as to the quantity of things delivered or as to their identity by delivering an article other than the one specified in the contract.

According to this article, the use of certain designations of a nature to deceive the purchaser in regard to the quality, quantity, origin, etc., of goods is prohibited, and the proprietor of the true designations is thus protected, but the scope of the law is limited to transactions between contracting parties, which are generally wholesale transactions. It does not cover the fraudulent substitution of one article for another in the retail trade. The law also requires that the use of false designations of kind or origin must be the principal cause of the sale of an article, thus further limiting its effectiveness in preventing certain unfair practices.

1 Trib. civ. Seine, 26 avril 1898, Vilcocq c. Quidet père et fils et Marchandise; Annales 1899, p. 354.

2 Loi du 1 août 1905, sur la répression des fraudes dans la vente des marchandises et des falsifications des denrées alimentaires et des produits agricoles.

In a case involving the substitution of a different kind of tooth wash for the one demanded, action was brought under section 1 of this law by the proprietor of the article discriminated against. The court said:

"The plaintiff appears to have availed herself of a provision which could not be applied in this case, trade-marks being protected by the special laws, and the law of 1905 not having been enacted as a weapon in the matter of commercial competition the

right of prosecution in the matter of fraud belongs only to the public prosecutor or to those who, having contracted, have been deceived by the fraudulent acts."

The action by the proprietor of the product which had been discriminated against was therefore dismissed. Trib. corr. Seine (8 ch.), 11 mars 1911, Vve. Waldeck-Rousseau; Annales 1912, I, p. 5.

Suits for violation of this law can be brought only by the public prosecutor or the contracting party who is the victim of the fraudulent use of a designation. A manufacturer whose product has been discriminated against has no right of action under this law.

LAWS OF 1886 AND 1912.-The law of April 30, 1886, reserved the right to use medals, diplomas, prizes, and other honorific distinctions awarded by expositions and fairs to the persons or business houses .who received such awards, and made it an offense, punishable with fine and imprisonment, for anyone to make an unlawful or fraudulent use of such awards. An important weakness of the law of 1886 was that it authorized the use of medals and prizes obtained at all expositions and fairs regardless of the conditions surrounding their organization. A fictitious exposition could be organized and medals and honorific distinctions could be distributed to unscrupulous merchants and manufacturers for profit. According to one writer, scarcely an exposition was held which did not have near it, often in the same town, a fictitious exposition which distributed medals patterned after those of the real exposition.2

The defects of the law of 1886 were remedied by the new law of August 8, 1912, relative to industrial awards, which provides in article 1 that only the awards of expositions and fairs organized, patronized, or authorized by the French Government or foreign Governments, or the awards of certain other specified bodies, can have a commercial or industrial use, and that before such awards can be used commercially or industrially they must be registered at the national office of industrial property.

Penalties for the infraction of this law are provided in article 9 as follows: A fine of from 50 to 6,000 francs or imprisonment from three months to two years, or both, shall be imposed upon

1. Those who unlawfully and fraudulently attribute to themselves the awards specified by article 1, or imaginary awards, by affixing them to their products, signs, advertisements, etc.

2. Those who under the same conditions apply the awards to objects other than those for which they have been obtained.

3. Those who under the same conditions shall have prevailed with boards of expositions or competitions.

4. Those who by any artifice whatever, ambiguous wording or figurative sign, reproducing more or less exactly the conventional aspect of a medal, have attempted to induce the public to believe that they have obtained an award which in fact they did not receive.

1 Loi du 30 avril 1886, relative à l'usurpation des médailles et récompenses industrielles ; Loi du 8 août 1912, sur les récompenses industrielles.

* Pouillet, op. cit., p. 835; see also Coquet, Les indications d'origine et la concurrence déloyale, 1913, p. 151.