The boundaries between copyrights and free competition

In a society where trade is a pillar of the economy, he had to answer to the problem of protecting businesses. While competition is essential for the proper functioning of a market, it must respect certain rules.

Indeed, some actions, also called unfair competition are defined and punishable by law, while others are creative jurisprudential and do not necessarily arise in a competitive relationship. It is a jurisprudential example we'll look through a decree of March 23, 2010 issued by the Commercial Chamber of the Court of Cassation concerning unfair competition and parasitism.

To understand the decision we will hear from one of the items in question that is to say Article L442-6 of the Commercial Code:

 "I. Engage the responsibility of the author and requires him to repair the harm done, for any producer, trader, business or person registered in the directory of businesses:
6 ° To participate, directly or indirectly in the violation of the prohibition of resale outside the dealer network is bound by an agreement of selective and exclusive distribution exempt under the rules of competition law; "

The Chanel Company, which owns various brands acted against a company for illegal use of trademarks and unfair and parasitic behavior after that company had proposed the sale of cosmetics and perfumes purchased from a company that had itself purchased through a public auction of the stock of a dealer placed in receivership. The ruling holds that if attacked resale, in conditions of poor presentation by an unauthorized distributor of products for distribution through a selective distribution network legally watertight and lawful under the rules of competition, is a unfair competition and parasitism involving the responsibility of its author on the basis of Article L. 442-6 I 6 of the Commercial Code, the alleged injury to the head by Chanel Company is indistinguishable from that caused him the illicit use of the mark, insofar as it finds its cause in the same facts of resale by a non-network provider is not authorized to use this feature illegally. The appellate court that has considered the terms of product presentation by the company and has chosen, in exercising its unfettered discretion, the Chanel Company did not suffer an injury distinct from that resulting from unlawful use of trademark legally justified its decision. (Lexisnexis.com)
 
In this case there is question of unfair competition and parasitism. Unfair competition to its existence in case law, this is to maintain fairness in the competitive reports. According to a decision made in 1985 by the Supreme Court "if the customer is free search for the essence of trade, the abuse of freedom of trade voluntarily causing a disturbance or not trade is an act of unfair competition." There are different types of acts that characterize unfair competition and are released on a case by case, in this case, the retailer enjoys the reputation of a brand such as Chanel by selling its products, the fact of wanting to harm or not the mark has no significance here, the intention is not taken into account. It is here that it can be regarded as unfairly competing, but it can also be unfair in other cases, eg in case of defamation (it devalues our competitor), through comparative advertising (to be approved it must be fair is true, it must be limited to an objective comparison that may relate to the essential characteristics of goods or services that are similar.) or the confusion that is cause confusion on the product sold compared to another product of similar nature so that the customer takes one to the other. It takes place in this case the field of tort section 1382 and 1383 of the Civil Code, there is necessarily fault injury and causal link between its elements. The assessment of its three components is made by the judge which may lead to some differences between the cases.
Second stop also evokes the notion of parasitism: the parasite differs somewhat from unfair competition as it allows to intervene in a setting that is not competitive, according to a decree of January 26, 1999 from Commercial Chamber economic parasitism is defined as "all conduct by which an economic agent interferes in the wake of another to take advantage without spending anything for his efforts and his expertise." Thus it describes as abusive jeopardizes the fact to his advantage to take the reputation of another, it takes advantage of the expertise of another, the fact that we are not in a competitive relationship, which has a completely different activity does not account for this type of action. There is also a parasitic competition, this time it has a similar activity, we will capitalize on the reputation of the competitor or its investments, it is close to plagiarism, but not in order to cause confusion in the consumer's mind. This distinguishes the parasitism by unfair competition. The injury is difficult to establish because it is not a diversion of customers if we do not find in a competitive relationship, so no loss of revenue. Quiz of the pain and suffering?
Finally note that the jurisprudence is not very clear on this point, the boundary between parasitism and unfair competition is less, and this type of action is decided case by case, one can only identify some actions that characterize a fault which can be punished on both counts, it is not possible to provide an exhaustive list of these situations. So be careful. Many factual accounts between these actions and it is not easily characterized unfair competition or parasitism.

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