Who: Paris Court of Appeal
Where: France
When: 9 May 2019
Law stated as at: 2 August 2019
What happened:
The Paris Court of Appeal (“CA Paris, 9 Mai 2019, n° 17/14362”) recently ruled on the lawfulness of practices occurring at the Cannes International Film Festival in relation to the festival alcohol official suppliers. Several alcohol brands, including their names and logos, were reproduced on the festival website and designated as its official suppliers. A brief description of the beverages quality and properties was provided and an hyperlink redirected users to the suppliers’ official websites.
The French association for the fight against alcoholism sued the festival organizer on the grounds that such practices were constitutive of an illicit sponsorship.
Under French law, sponsorship or patronage operations which have the purpose or effect of creating propaganda or advertising directly or indirectly for alcohol or an alcohol brand are prohibited. Any advertising in favour of an organisation, a service, an activity, a product or an item other than an alcoholic beverage, which through its design, presentation, brand or any other distinctive sign, reminds the audience of an alcoholic beverage, is deemed to be indirect advertising.
French court applications of such rules are usually very stringent, and tend to consider that the mere reference or reproduction of an alcohol brand is constitutive of an advertisement for such brand.
In this case, the Paris Court of Appeal deemed that the nature of the relationship between the Festival and the alcohol producer was of a commercial nature and did not qualify as a sponsorship. To reach such a conclusion, the court compared the official supplier situations with those of official sponsors, and deemed they were clearly different. For example, sponsors benefited from a large visibility on the entire festival website and also during the event, whereas official suppliers were only mentioned on the supplier page. The practice was therefore deemed lawful.
Similar reasoning was adopted by the French Criminal High Court on 11 June 2017, in relation to tobacco advertising, for which more stringent rules apply in relation to sponsorship. Sponsorship is prohibited when the sponsor is a producer, importer or distributor of tobacco products, or when the operation results in the propaganda or direct or indirect advertising for tobacco, tobacco products or ingredients.
In that case, the Court had to assess whether the renting by a tobacco brand of private boxes at the Roland Garros tennis competition qualified as a sponsorship. The court approved a decision of the lower courts, which had defined sponsoring operations as the provision of an advertising service (i.e. the creation of a link between a company, its brands or products and an event), which was intended to have a positive commercial outcome, in consideration of the payment of a fee. The Court then ruled that the operation in question did not constitute sponsorship, but rather a contract of public relations. Indeed, no advertising service was provided to the tobacco brand, since the tobacco company name was only affixed on signboards for informative purposes, i.e. to indicate the location of the box, and with no distinctive sign. The Court also compared the practices attached to the tobacco company with the practices regarding other box renters, and found that the signboards disclosing the tobacco company name had the same type font and size as all boxes signboards. In this case also, the court then ruled that the operation were not a sponsorship and was therefore legally compliant.
Why this matters:
French courts tend to be very strict in enforcing rules on sponsorship by alcoholic beverages and tobacco products, allowing very little room for any form of visible commercial partnership for those brands. However, in the most recent decisions, the French Courts sought to analyse whether public operations are of an advertising nature or if they merely consist in the conclusion of a commercial agreement, not legally prohibited, by taking into account the circumstances of the case.
