Parasitism: likehood of confusion between the magazines “Public” and “PoUblic”

15/03/2021

In July 2019, the media company CMI Publishing (hereinafter “CMI Publishing“) which publishes the magazine “Public” found that the competing media company FT Magazine (hereinafter “FT Magazine“) had published a weekly magazine called “PoUblic“.

CMI Publishing, reckoning that there was a clear risk of confusion between the magazines “Public” and “PoUblic“, the latter having the same essential characteristics as the first, summoned FT Magazine before the interim relief judge of the Paris Commercial Court in order to put an end to the manifestly unlawful disturbance caused by the unfair and parasitic acts committed against CMI Publishing, in connection with the publication and marketing of “PoUblic“.

The interim relief judge granted CMI Publishing’s application and prohibited FT Magazine from distributing, marketing and promoting “PoUblic“.

FT Magazine decided to appeal the decision.

The Paris Court of Appeal first noted that the companies involved in the litigation were two press companies specializing in tabloid news in the same competitive sector.

Then, with regard to the assessment of the likehood of confusion between the two magazines, it considered that it appeared from the elements produced during the debates that the magazine “PoUblic” presented, on its cover, a set of similarities likely to generate a manifest risk of confusion with the publication “Public” (identical format, title in the same font, location of the title of the magazine in a pink rectangle of the same size located at the top left of the cover page, etc.). The only significant difference between the two journals was the presence of a lowercase letter “o” in the title “PoUblic“, which the Court considered insufficient to prevent the confusion.

Finally, with regard to the parody exception invoked by FT Magazine, the Court recalled that the jurisprudential interpretation of article L. 122-5, 4° of the French Intellectual Property Code implies that for that exemption to be applied, the second work has to have a humorous character and not to present any risk of confusion with the parodied work. However, in the case at stake, since the headlines of “PoUblic” did not reveal an obvious humorous character, the Court inferred that this exception of parody could not be retained.

In any event, the Court of Appeal ruled that FT Magazine benefited from the investments of CMI Publishing and took advantage of its notoriety without justifying its own investments. It therefore considered that acts of unfair competition were characterized, constituting a manifestly unlawful disturbance for which FT Magazine was liable.

UGGC Law Firm and its team specialized in commercial and press law are at your disposal for any question you may have on this subject.

By the IP/IT team of UGGC Law Firm

Source: CA de Paris, Pôle 1, Chambre 3, February 17, 2021, N°RG : 19/16258

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