Claim Against An Ad Broadcast On A Website Accessible In France But Not Targeting The French Audience: Do French Courts Have Jurisdiction ?

Author:Ms Caroline Bouvier (Bernard - Hertz - Béjot) and Michel Béjot (Bernard - Hertz - Béjot)
Profession:Global Advertising Lawyers Alliance (GALA)

On October 18, 2017, the French High court held in clear terms that the access to a website (broadcasting an ad challenged on the ground of copyright infringement and parasitism), within the territory of the court where the lawsuit has been brought, is a sufficient criterion to consider that this court has jurisdiction to assess the alleged infringement/fault.

  1. The dispute and the arguments of the defendants

    A theater company association, arguing that it holds copyrights on shows presenting characters from 7 to 12 meters high, strolling under a specific choreography in the streets of a town, claimed that an ad for Coca-Cola, broadcast in December 2012, in various countries, presents the same characteristics as its creations.

    The theater company association initiated summary proceedings before the first degree Tribunal of Paris, on the ground of copyright infringement and parasitism, against Coca-Cola Entreprise (now Coca-Cola European Partners France) and Coca-Cola Services France to have the broadcast of the ad discontinued and the ad withdrawn.

    Coca-Cola's ad agencies, McCann Erickson Worldwide Inc. and McCann Erickson, joined the proceeding voluntarily and challenged, with Coca-Cola, the jurisdiction of French courts.

    The defendants claimed, in particular, that the sole accessibility, in France, of the website on which the ad was shown was not sufficient to ground the jurisdiction of French courts (no sufficient, substantial and significant link between the alleged wrongful misconduct and the French market).

    They referred to the fact that the website broadcasting the ad did not target the French audience and that the ad was not broadcast in France (the ad was neither broadcast on the French TV nor in movies theater located in France).

  2. The decision of the Court of appeal of Paris dated October 22, 2015 : France has no jurisdiction because there is no sufficient, substantial and significant link between France and the litigious websites

    The matter was remanded before the Court of appeal of Paris which considered, on October 22, 2015, that French courts do not have jurisdiction because the ad was broadcast on different websites (Google, YouTube, Dailymotion and accessible via Spanish keywords) and was not targeting the French audience because (i) some of these websites were destined to advertising and communication professionals, and (ii) the others were destined to a foreign audience, so that there was no sufficient, substantial and...

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