Who: Cora and Auchan
Where: Cour de Cassation (Supreme Court) Paris
When: 9 June 2015
Law stated as at: 7 October 2015
What happened: The French Cour de Cassation ruled that a company cannot use a slogan similar to the one used for many years by its competitor when the slogan is the result of investment and is well known to the general public.
In this case, Cora, a hypermarket chain, who has been using the slogan “gros volumes = petits prix” (large volumes = low prices) for 25 years, decided to sue Auchan for damages under tort law rather than intellectual property law. Cora alleged that Auchan was committing parasitic competition (parasitism) contrary to article 1382 of the Civil Code when distributing catalogues featuring the slogan “prix mini sur gros volumes” (mini prices for large volumes).
The Appeal Court held in favour of Cora, considering that:
- Cora created the slogan “gros volumes = petits prix”;
- the combination of two groups of three-syllable words “gros volumes” and “petit prix” placed on equal footing is distinctive of the company since it has been demonstrated that the slogan is well known to the general public;
- the two slogans are identical even if Auchan replaced the sign “=” in Cora’s slogan with a comma since the juxtaposition of two groups of words is equivalent to the sign “=”;
- Cora made significant investment in the slogan though marketing and advertising activity; and
- Auchan’s use of the slogan was not a coincidence.
The Cour de Cassation confirmed that “parasitism, for commercial traders, exists where one entity rides on the coattails of another by unduly benefiting from its repute or investments, irrespective of any risk of confusion” and confirmed the precise and factual analysis of the Court of Appeal.
Why this matters:
In France, the two main legal protection grounds that may be claimed to protect slogans are the following: intellectual property rights (mostly by copyright or trade mark law) and tort law.
Slogans are copyrightable provided they are original and regardless of their length. For instance, “Un non pour un oui” (a no for a yes) and “C’est si simple le confort” (Comfort is so simple) have been considered original and therefore, protectable.
However, the assessment of originality raises many difficulties and the courts’ decisions are not always consistent. For example, the following slogans have not been considered original: “Le mariage n’est pas une loterie” (Mariage is not a lottery) and “Carola: ressourcez-vous” (Carola: recharge your batteries).
Given the vagaries of the originality criterion, it is open to brand owners to try an alternative legal basis to protect their slogans such as parasitic competition law. As the present decision shows, this strategy can be particularly effective.
