Who: National Association for Prevention in Alcoholism and Addictology (ANPAA) and Kronenbourg SAS
Where: France
When: The summons was issued on 24 October 2018 and the judgment was rendered on 22 October 2020
Law stated as at: 20 November 2020
What happened:
The ANPAA, an association for the fight against alcoholism, had the company Kronenbourg, which sells Grimbergen beer, summoned before the court, arguing that the use of the two slogans “The Flame never goes out” (“Ardet Nec Consumitur”) and the representation of a phoenix to promote the beer were unlawful. It sought the prohibition of these slogans and representations, and payment of damages.
The court first ruled that the action was not time-barred, contrary to what Kronenbourg argued. Kronenbourg argued that the phoenix and the words “Ardet Nec Consumitur” had been on its products since at least 1957 and had never been criticised by the ANPAA. According to the court, in view of the tortious nature of the alleged fault, the starting point of the five-year limitation period was not linked to the registration of the trademark or a visual, but to an alleged non-conforming use of the trademark in the context of advertising. The starting point was thus any new advertising campaign of an unlawful nature. The date on which the bailiff’s report was drawn up, in April 2018, of the advertisement on a billboard in a Paris street, triggered the limitation period. The action was therefore not time-barred.
On the main application, the court noted that the disputed poster consisted of an illustration representing a full glass of beer, with an engraved phoenix, its foot surrounded by a halo of fire. The slogan at the top of the advertisement was “The flame never goes out”. The slogan referred to an asterisk mentioning the history of Grimbergen Abbey. The judges examined whether these elements complied with the wording permitted by Article L. 3323-2 of the Public Health Code. They noted that the explanatory mention on the history of the abbey is written in reduced characters, illegible on the photographs of the panel reproduced in the minutes. Furthermore, the motto “Ardet nec Consumitur”, which is said to be the abbey’s motto, translated in the advertisement as “The flame never goes out”, refers to the persistence of the flames and not to the religious edifice. Moreover, this drink has not been brewed within the walls of the abbey for 220 years. For the judges, the slogan “The flame never goes out”, associated with the reproduction of a phoenix, evokes the qualities of this imaginary animal and does not have the objective and informative character required by article L. 3323-2. The said slogan is therefore unlawful. On the other hand, the court does not prohibit the use of the Latin motto alone, as long as it is reproduced without translation or with a different translation or in another context.
The court then held that the association of the consumption of that beer with the representation of a legendary animal such as the phoenix, even if it is the emblem of the trademark, does not constitute an objective reference to the product taste characteristics or historical origin. On the contrary, it seeks to enhance the drink’s value by associating it with mythology and exceptional powers, such as a supernatural resistance capacity. The court therefore prohibited Kronenbourg from using the disputed slogan and the representation of the phoenix on any advertising medium. The company will have to pay €5000 in damages to the association as compensation for its prejudice.
Why this matters:
This decision is important on two levels. First, it specifies the starting point of the limitation period when the legality of a visual used in an advertising campaign is discussed. Second, it reminds that slogans and images used in marketing must correspond to the product offered for sale, failing which they are deemed unlawful.
