The need for restraint in comments made by a party in the context of an ongoing legal proceeding
The association A Votre Service, whose activity is to control, inform and guide the Muslim community on the consumption of Halal products, is the owner of many brands, including the brand AVS, registered on October 27, 2010 to designate in particular ” la boucherie ” and ” la charcuterie “. All trademarks belonging to the association may only be used by persons who have obtained an approval (TGI Paris, ch. 3, Section 2, January 24, 2014 RG : 12/15058).
The association A Votre Service noted the use by the company ADJ D of its trademark “AVS” on leaflets, flyers and on its website, “www.al.mumin.fr”, for mail-order sales of food products, even though it had not obtained prior approval.
It therefore sued the company on the basis of trademark infringement and parasitism because only authorized persons are allowed to use these trademarks and it does not grant its approval to mail-order websites that do not have a structure for receiving the public. The Court recognized the acts of infringement because of the risk of confusion on the origin of the products for consumers who would like to buy guaranteed Halal products.
The defendant company filed a counterclaim for defamation and damage to its e-reputation. The association wishing to inform consumers of the fraudulent behavior in which it believed the defendant company was engaged, then wrote on its website and Tweeter page, the respective mentions “Attention Fraud” and “Fraud”. The defendant company felt that the association had damaged its business interests and its e-reputation…
The defendant company argues that this behaviour is likely to affect its exclusive online sales activity, several consumers would have come forward to express their perplexity and distrust, especially since the messages on social networks remain permanently accessible. However, the latter does not provide evidence of this.
The association argued that it had only informed consumers of the unauthorized use of its trademark, thus justifying the use of the term fraud, which should be understood as an act contrary to the law or regulation. However, the association’s argument was not accepted by the Court.
The judges considered that if it does not appear illegitimate, for an association whose aim is to certify the origin of a product by means of a label, to bring to the attention of potential consumers, by all possible means, that a company is, in its opinion, using this label improperly, it must however be careful, while awaiting a court decision, not to discredit the individual or legal entity that it intends to denounce.
The words chosen by the association were considered to be of such a nature as to denigrate the company in question in the long term, as fraud is commonly understood as a redhibitory defect in a supplier or a partner, which should therefore be avoided.
As a result, although the Court did indeed find infringement, the association was nevertheless ordered to pay the defendant company the sum of 3,000 as compensation for the damage resulting from the denigration.
In practice, denigration constitutes an act of unfair competition which can only be invoked on the basis of extra-contractual liability as provided for in Article 1240 of the Civil Code. (Art. 1240 of the Civil Code: “Any act of man, which causes damage to another, obliges the person by whose fault it occurred to repair it”). To characterize a denigration, it is therefore necessary to demonstrate a fault, a prejudice and a causal link between the two.
However, in the decision cited, the defendant company did not demonstrate that it had suffered any prejudice, simply stating that several Internet users had been “perplexed” and “defiant” in the face of the comments made by the association, without providing any evidence of such letters.
It would seem that for the Court, the words chosen by the association are in themselves of a nature to denigrate the defendant company and give rise to an automatic right to compensation.
This reasoning is not surprising, however, since judges tend to presume harm in matters of defamation. Indeed, the damage is necessarily inferred from the denigration alone. This formula has been used in numerous decisions (CA Rouen, March 24, 2017, RG n°15/05832; Cass com, January 11, 2017 n°15.18.669; CA Paris, Pôle 5, Chambre 4, June 7, 2017, RG n°14/1758; Cass com. January 15, 2020, n°17-27.778).
In the same logic, the Court of Cassation recognizes that it is irrelevant whether the company that made the disparaging remarks is in competition with the other company, as long as the remarks made are likely to discredit the other company (Cass. Com. January 9, 2019 n°17-18.350). Nor do judges take into account the accuracy of the information disclosed to characterize defamation, even though it would ensure consumer safety, as long as it is of a nature “to discredit a competitor.” (Cass.com., September 24, 2013, n°12-19.790).
However, the Court of Cassation, in a 2019 decision (Cass. Com. January 9, 2019 n°17-18.350), states that denigration must be set aside when the disputed information:
- is disclosed in a measured way,
- has a connection to a topic of general interest and,
- has a sufficient factual basis.
In this case, a company had revealed to a competitor’s customers the existence of an infringement action that had not yet resulted in a final court decision. These comments were deemed to be disparaging because the company did not have a sufficient factual basis.
It is established case law that the disclosure of information relating to an action that has not resulted in a final decision may constitute misconduct.
More recently, the Court of Cassation censured the judges of appeal who had rejected the claim for damages brought against Optical Center by Atol on the basis of denigration, on the grounds that the plaintiff in the action was not identifiable in the disputed information communicated by the defendant (Cass.com, January 27, 2021, 18-14.774).
In this case, Optical Center announced in an article in the magazine L’Opticien that it was launching legal proceedings against twelve brands and independents accused of fraud, without expressly mentioning Atol. Contrary to the appeal judges, the Court of Cassation considered that Atol was perfectly identifiable since the twelve brands represented almost all the brands operating in the French optical market. The Court of Cassation therefore criticized the appeal judges for not having investigated whether the reference to the “twelve signs” did not imply the necessary designation of the company Atol.
Thus, the judges’ assessment of denigration seems to be flexible, both in terms of characterizing the acts of denigration and in terms of identifying the recipient of the litigious acts.
Indeed, only the nature of the words used seems to really matter in order to retain the qualification of denigration, unless the three criteria set by the Court of Cassation in its 2019 decision are met.
The mention of a legal proceeding, to be introduced or in progress, tends to constitute in itself an act of denigration as soon as a final decision has not been rendered.
If, however, a final decision is mentioned, in order to avoid the qualification of denigration, this information must be expressed in a measured way and be on a subject of general interest.
Finally, even if the person concerned is not expressly mentioned, the judges are obliged to find out whether he or she could not be immediately identified from the information provided.
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