The aforementioned judgment of the Paris Commercial Court of 28 September 2015 concerns a company that had drawn inspiration from a competitor’s website and GTCs, constituting an act of parasitic unfair competition. The economic value of the defended concept was “the order path, the structure of specific displays, the choice of messages, the use of actors’ voices, the payment and the delivery method”. The plaintiff company had justified significant investments, while the opposing company could not justify the same, and that through this misuse of investment, it had been able to charge low prices, gaining an unfair competitive advantage.
In the same field of websites, the Paris Court of Appeal even ruled that “the fact that the respondent company justifies, on its part, the expenses incurred to create its website is not, in itself, sufficient to dismiss the complaint of parasitism“ (Paris Court of Appeal, Pole 5, Ch. 2, 15 April 2016). The reason is that the respondent company created a website presentation that nothing imposed, which showed a strategy of alignment with its competitor’s website.
Another case confirms the possibility of protecting a concept against parasitism: the decision of the French Court of Cassation of 31 March 2015 (Cass. com. 31 March 2015, No. pourvoi 14-21391). In this case, a trainee had presented a project to a bank where he had completed his internship, which consisted of the creation of a company with a system facilitating overseas transfers. The bank launched a service based on this concept shortly afterwards. The court found that the bank had “taken over and integrated into its range of services to foreigners two innovative elements of this concept, the creation of a ‘dual account’ and dedicated branches”, and held that “the economic value of the appropriation of these elements by the Bank is established” and that the trainee “did not derive any profit from the product of his research, which had real commercial value and which he could no longer develop, and suffered a loss for which he should be compensated.” .”
Sometimes the protection of a concept is not so simple. In the Court of Cassation judgment of 22 June 2017 (No. 14.20310), a former business partner was criticised for having appropriated a concept involving mentioning on a bottle of wine the association of a dish. The Court ruled that “since ideas are freely available, the mere fact of using a concept implemented by a competitor does not constitute an act of parasitism” (the company had, however, won its case on the infringement issue). Decisions have also rejected a parasitic competition action by questioning the innovative nature of a concept (CA Paris 4 July 2013 n° 11/23215).
This may be compared with the decision of the French Court of Cassation of 24 November 2015 (Ch. Com. No. 14-16806), which condemned the company PEPSICO France for unfair competition on the grounds of imitation for having adopted the advertising idea of the company Andros, the Court considered that “the advertising idea of associating a piece of fruit with the manufacturer’s brand name to designate fruit juices or fruit desserts is not usual but is distinctive for the products of this company due to its continuous use since 1988”, thus creating confusion. Thus, the simple fact of using an idea would not constitute a fault, but if this idea identifies the victim company and represents a real economic value that has required investments, leading to a risk of confusion or misappropriation of such investments, then its use could constitute an act of unfair competition.
The above cases demonstrate the legitimacy of taking action when a concept is stolen. They show some considerations to consider, in particular:
- In the case of a concept that has not been fully implemented, it is even more important to obtain proof of anteriority, such as a Copyright.eu certificate.
- If the concept has not been materialised, it seems important to demonstrate a business relationship that may have allowed the offender to misappropriate the concept.
- It seems all the more necessary to secure the confidentiality and the relationship with partners in early stages of the development of the concept.
- It is essential to demonstrate the investments and the innovative nature of the concept, in addition to ensuring that no other market player is using a similar concept.
In conclusion, it is therefore important to identify the elements that carry the economic value of a concept, its concretisation, that embody the identity of the company, and to be able to justify the investments and intellectual efforts that have been made. Several means of protection exist; however, it is especially important to build up proof of anteriority and to control communications with third parties. Thus, although ideas must remain free, it appears that securing a concept could be justified and possible if it constitutes an economic asset of the company.