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CLASS 46


Now in its twelfth year, Class 46 is dedicated to European trade mark law and practice. This weblog is written by a team of enthusiasts who want to spread the word and share their thoughts with others.

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Anthonia Ghalamkarizadeh
Birgit Clark
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Christian Tenkhoff
Fidel Porcuna
Gino Van Roeyen
Markku Tuominen
Niamh Hall
Nikos Prentoulis
Stefan Schröter
Tomasz Rychlicki
Yvonne Onomor
MONDAY, 21 APRIL 2008
France: freedom of speech finally prevails over trade mark rights in parody case

For a long time, logo parody on websites could not be envisaged by French courts. Trade marks were considered as "absolute" rights that no one could mock without being liable for infringement. A breach in that strict jurisprudence was first made in the "JeBoycotteDanone.com" appeal decision of 30 April 2003. Displaying a modified version of the famous Danone logo featuring a black stripe as a way to criticize the firm's social policy was deemed to be freedom of speech.

Then Greenpeace's communication got under fire for two logo parodies found on its websites: the first one turned the oil company ESSO into E$$O and the second one added a human skull shadow (illustration below) and a dead fish behind Areva's capital A logo. Both cases got different outcomes in appeal. The association got the green light on the Esso parody (CA Paris, 16 November 2005).

In Areva however, while the trade mark counterfeiting assertion was rejected, the court considered that the logo parodies denigrated the trade mark (CA Paris 17 November 2006): L'image “/class46/image.asp?id=333” ne peut être affichée car elle contient des erreurs.the association of the mark with morbid symbols would "lead to think that any product or service provided under said marks would be deadly"*, the court said. Such discredit, generalized to all products and services provided by Areva was deemed to go over the limit of "allowed freedom of speech". The court considered that by doing so Greenpeace went over its aim, i.e. struggling against nuclear wastes.

A recent decision of the Cour de Cassation issued on 8 April 2008 has censured this part of the decision.

The French supreme court ruled that Greenpeace was "acting pursuant to its aim, in a public interest and public health purpose, and by means that were proportionated to this goal"* and therefore that Greenpeace had not abused its freedom of speech right. (*) unofficial translation

Posted by: Frédéric Glaize @ 23.35
Tags: France, freedom of expression,
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