FRANCE Law and Practice Contributed by: Marianne Le Moullec, Gaëlle Robic and Joséphine Perrin, Orasis Avocats
4.2 Competitor Copyrights and Trade Marks An adviser may quote the name of the competitor or its trade mark in comparative advertising, without taking unfair advantage of its reputation or creating confusion with its own trade marks. The trade mark owner may object to advertising that specifically men - tions their trade mark when the use of that trade mark is intended to mislead consumers or is made in bad faith (Article L.433-11 of the French Consumer Code). If the comparative advertising is lawful, it is an excep - tion to the competitor’s exclusive rights to its trade mark. If the comparative advertising is unlawful, the use of the competitor’s trade mark may be considered as counterfeiting. 4.3 Challenging Comparative Claims Made by Competitors An advertiser can challenge comparative claims made by a competitor. Summary proceedings are frequently used in compar - ative advertising, to request an immediate injunction, under penalty if needed, to cease the comparative advertising. French law specifically provides that the advertiser must be able to prove the factual accuracy of its comparative claims, within a short period of time. To obtain damages, an advertiser may also bring regu - lar proceedings before the French commercial court. Breaching the law on comparative advertising neces - sarily gives the perpetrator a competitive advantage, which is considered as an act of unfair competition by French tort law. Finally, if the trade mark was used in unlawful comparative advertising, proceedings for counterfeiting may be introduced. 4.4 Ambush Marketing Ambush marketing is not defined by French law, but the courts have ruled that it consists of associating oneself with sporting or cultural events in order to pro - mote one’s image while avoiding paying the organis - ers and becoming an official partner. There is no specific prohibition on ambush marketing under French law, but courts have ruled that ambush marketing is unfair competition by “parasitic behav - iour”. Official partners of sporting and cultural events
have sued the companies using ambush marketing on the grounds of unfair competition and have obtained remedies such as monetary damages, but also injunc - tions, under penalty if necessary, to stop this “para - sitic” behaviour. Regarding ethical rules, the ICC code (which is the basis of the ARPP ethical rules) states that no party should falsely pretend to be a sponsor of any event. 5. Social/Digital Media 5.1 Special Rules Applicable to Social Media The prohibition of unfair commercial practices fully applies to advertising in online and social media. Such advertisements have been known to be challenging because of the lack of transparency, with advertise - ments often being disguised as content. The French Law on Confidence in the Digital Economy (Law No 2004-575 of 21 June 2004) provides that any advertisement on the internet or on social media must be clearly identified as such, and the identity of the advertiser must be easily accessible. The DSA provides that advertisements on social media must be clearly identified through prominent markings, and the identity of the advertiser must be specified. A functionality allowing people to flag a commercial communication must be provided for by the platform. When deceptive advertising has been committed through social media, the penalties are increased to five years’ imprisonment and a fine of EUR750,000 for natural persons or EUR3.75 million for a legal person. 5.2 Liability for Third-Party Content The advertiser may be held liable or jointly liable for content posted by others on its website or on its social media channels. 5.3 Disclosure Requirements The commercial nature of the message published online or on social media must be written in a “promi - nent” way on the social media platform. The DSA pro - vides that the European Commission may promote the
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