A few months ago, we commented the judgment of the Court of First instance of Paris of 29 January 2016 which denied copyright protection to promotional pictures of flowers published on an e-commerce web site because of their lack of originality (here).
Before the Court of Appeals of Paris, the claim for copyright infringement was dropped, the appellant focusing its complaint on the notion of unfair competition (commercial free-riding).
In its decision of 9 December 2016 however, the Court of Appeals was no more indulgent than the Court of First instance. Due to a lack of elements, information or any other form of evidence provided by the plaintiff, the Court was not able to appreciate if an offence had really been committed by the adverse party. It reminded that there is no wrongdoing in itself in copying pictures that are not protected by copyright and that there is no wrongdoing in itself in adopting a presentation similar to one’s competitor for promoting identical or similar goods or services, even if such behaviour results in money-saving.
Commercial free-riding can only be punished in case there is an intentional and unfair appropriation of the investments of one’s competitor but said financial, commercial or intellectual investments must be clearly identified.
Even if the decision seems severe, it shows how difficult it can be for some e-commerce businesses to determine what makes their business so special and what makes a real added value to their goods or services.
Besides, the decision is in line with the dominant trend of court decisions making free competition prevail upon the protection of intellectual property rights. For the record, the Court of Justice of the European Union considers that it is not necessarily forbidden to use a competitor’s trademark in an internet referencing service to promote goods or services identical to those covered by the registration. And if you remember correctly the Court detailed its opinion in the INTERFLORA case, already about promotion of flowers over the internet (commented here).