5. Those who make an industrial or commercial use of awards. other than those provided by article 1 of the law.

6. Those who, on the occasion of an exposition or competition, unduly avail themselves in circulars, prospectuses, placards, diplomas, certificates, etc., of the authorization or patronage of a minister or of any other authority or public administration without having previously obtained it, or who put on their documents, titles, mottoes, vignettes, coats of arms, or other signs and words of a nature to create a belief of such authorization or patronage.

Less severe penalties are prescribed for violation of the provisions for registration.

GENERAL PROVISIONS.

As stated above, many acts of unfair or unlawful competition in France are actionable only under the general provisions of articles 1382 and 1383 of the Civil Code (see p. 559), which permit actions to enjoin and to recover damages wherever incurred. Civil actions for damages may also be brought under these general provisions in cases covered by the special laws.

In all cases of unfair competition brought under article 1382 the existence of wrongful intent must be proved. Such intent may be shown by a single act or by a variety of acts, none of which taken by itself would be considered sufficient proof. This point was affirmed by an opinion of the court of Nancy in 1911. The court held that several practices, none of which taken separately could be characterized as unfair competition, may by their number, variety, and their combination reveal the fraudulent intent of their authors and constitute unfair competition.1

Some of the most important forms of unfair competition dealt with under the general provisions are discussed in detail under the various headings below.

CONFUSION AS TO ESTABLISHMENT.-Acts intended to produce confusion between similar establishments afford ground for civil actions. under article 1382 of the civil code. None of the special laws relates directly to cases of this kind. Some of the important forms of unfair competition producing confusion between similar establishments are as follows:

1. Using similar trade names on signs, show windows, and in advertisements, prospectuses, etc.

2. Imitating various distinctive marks of an establishment, such as signs, store fronts, exhibits in show windows, interior fittings, etc. 3. Using titles which serve to connect one establishment with another, such as "successor to," "branch of," "ex-superintendent of,"

etc.

1 Nancy, 25 nov. 1911, Tilguin et Cie., c. Société des Engins Graisseurs; Annales 1912, p. 258.

A person may use his family name, a firm name, fancy name, or name of a place to designate his establishment. The use of such names to distinguish one's products from those of competitors has been discussed in connection with the laws of 1824 and 1857.1

The general principles followed by the courts in determining whether the imitation of such names is unfair competition is (1) whether there is sufficient resemblance to cause confusion and divert the clientele, and (2) whether the names are special and distinctive or whether they are generic and necessary to designate the establishment.

The most frequent form of imitation of personal names occurs where a person with the same name as the proprietor of a wellknown concern engages in the same kind of business and uses that name to designate his establishment. Every person has the right to use his name in this way, but in doing so he must not usurp by means of fraudulent confusion the advantages of the credit and reputation acquired by another.2 In the absence of fraud the courts may not have the power to prevent a person from using his namethis is still a matter of controversy-but the courts undoubtedly have the power to correct abuses. Frequently a proprietor is required to use his Christian name with his family name and, if this is not sufficient, to add his address.3

A common method employed to secure the use of a name similar to that of another is to induce a person having the desired name to cede it or in the case of a firm or association to enter the business so that his name can be used. Where fraud of this kind exists the courts generally prohibit the use of the name entirely.

In a case involving the fraudulent use of the same family name the Court of Paris ordered the defendant to cease using this name by itself. Upon appeal the Court of Cassation aflirmed the decision of the lower court.*

A person in order to compete against the well-known house of Gambier, engaged in the sale of pipes, induced a cooper named Gambier to permit the use of his name. The court declared this to be unfair competition and prohibited the use of the name by the rival house.5

The firm of Moët & Chandon, a well-known champagne house, had acquired a reputation for the brand "Moët," which name was used as a trade-mark. A rival concern was established with the name Moet & Co., the name being taken from an associate taken in for that purpose.

1 See pp. 560 and 562.

2 Pandectes Françaises, Nouveau Répertoire de Doctrine, de Législation, et de Jurisprudence. Paris, 1895, tome 20, p. 36.

Ibid. p. 40.

4 Cass., 27 mars 1877, A. et M. Landon c. Renault; Annales 1877, p. 92.

*Paris, 21 mai 1865; Sirey, 1865-11-158; cited in Pandectes Françaises, tome 20, p. 38.

Prior to this time he had been an accountant in a pottery concern and was without capital or experience in the champagne business. The court prohibited the new concern from doing business under that name and awarded damages. Upon appeal the Court of Paris affirmed the decision.1

In respect to the imitation of invented names as business signs or designations, the courts have condemned, as constituting unfair competition, the use of "Nouveau café des Dames" for "Café des Dames," "citadin" for "citadine," and "Aux vrais gourmets" for "Café des gourmets." 2 On the other hand, the courts have declared that a commercial establishment which adopted the name "Agence des théâtres" to indicate its operations could not oppose the use of the name "Office des théâtres" by another establishment of the same kind, not only because such a designation was general, but also because no acts were shown which would lead to confusion between the two establishments.3

A new concern which established itself across the street from a well-known concern with the designation "Au Planteur" took for its name "Au nouveau Planteur" and gave its store front the same general appearance as that of the former. It also hired the director and various employees of the older house and sent them out as representatives to the customers of the latter one day earlier than the representatives of the older house were accustomed to call. The court held that the addition of the word "Nouveau" to the designation of the new concern was not sufficiently different from the sign of the older house to prevent confusion between the two establishments, especially since they were located opposite each other and had the same general appearance. The court therefore declared the use of this designation and the other practices of the defendant to be acts of unfair competition and awarded damages.*

But in a case in which a manufacturer of lamps in Paris who used the words "A la lampe merveilleuse" as a trade name and trademark sued a competitor for using the same words on the glass front of his establishment, the court held that this did not constitute unfair competition, since the words "lampe merveilleuse" were in general use and defendant had never used them alone, but always in connection with his own name, viz, "lampes merveilleuses Pigeon."5

Where a competitor copies the details of the entrance of a rival establishment in a manner to deceive the passer-by, or the arrangement of show windows, the costume of employees, etc., the courts recognize such practices as unfair competition..

1 Paris, 31 juill. 1874. Moët et Chandon c. Moet et Cie.; Annales 1874, p. 311.

2 Pouillet, op. cit., p. 733.

a Trib. comm. Seine, 22 mai 1867, Mondin et Cie, c. Sari et autres; Annales 1868, p. 352. p. 352.

4 Paris, 8 juill. 1910, Balzard et Cie, c. Lanoelle et Cie. : Annales 1910, p. 222.

Paris, 11 mars 1892, Petithomme c. Pigeon; Annales 1896, p. 93.

A certain Théophile Pathé founded a business in Paris similar to that of the Pathé frères, and painted the front of his shop vermilion red in imitation of the color of his competitors' shop. The court declared that where a commercial establishment used vermilion red to distinguish its shop it acquired the exclusive right to such usage and the use of the same color by defendant was an act of unfair competition. Defendant also pretended in his advertisements that he was formerly connected with Pathé frères, and reproduced in his catalogues designs belonging to Pathé frères. As a result of the confusion which was caused some of the mail of Pathé frères was delivered to him. The court also held these acts to be unfair competition.1

Two persons founded at Marseille competing messenger services. One was called "Bicycle Messengers" and the other "Express-Boys." Defendant clothed his messenger boys in red uniforms like those worn by the employees of his competitor, and also caused similar tariffs to be distributed. The court held that, while defendant had the right to establish a competing business, these acts constituted unfair competition and defendant must discontinue the use of the red uniforms and pay damages.

In a similar case decided a few days later the Court of Pau held that the act of a concern in Biarritz in organizing a messenger service and clothing its boys in uniforms similar to those of a messenger service at Bordeaux was not unfair competition, since, being located in places so far apart, no confusion could result between these two enterprises from the similarity of uniforms.3

99.66

Confusion between competing establishments may be caused by the use of such terms as "successor to," "ex-pupil of,” formerly connected with," "brother of," etc. More frequently, however, the use of such titles is ostensibly for the purpose of recommending one's products or establishment to the public.*

A common method of causing confusion is to put the words "pupil of" or "formerly connected with" in small type on signs or show windows and the name of the rival house in large letters, so that the eye of the passer-by will be deceived. In a case in which a merchant painted on the entrance of his shop in large letters the name of his former employer, preceded by the words "employee of," and on the glass front the same name in very conspicuous letters while his own name and the words "employee of" were in less visible letters, the court held that even if it is permissible for a person to take the title of employee of the house in which he has worked, it is on the condi

1 Paris, 6 avril 1911, Compagnie Générale des Phohnographes, etc., c. Compagnie des Cinématographes Théophile Pathé; Annales 1911, p. 333.

2 Trib. comm. Marseille, 4 maí 1910, Daval e. Chaléat; Annales 1912, p. 29.

a Pau, 18 mai 1910, Vallet c. Le Meneust; Annales 1912, p. 26.

4 For cases of this kind, see p. 581.

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."4

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.