Deeplinking to genuine source of downloadable software did not amount to an IP rights infringement

02 November 2010

Sandrine Rambaud

A French court has held that an unauthorised direct link to downloadable software, bypassing the home page of the software publisher, does not itself amount to an infringement of intellectual property rights.  Nor did sponsored links to competing software amount to unfair competition.

On its website, CBS Interactive provided a link which enabled visitors to, among other things, download software developed by a company called Ordinateur Express.  The link went directly to the page of Ordinateur Express’ website from which the software could be downloaded, and did not have the consent of Ordinateur Express.

Ordinateur Express sued CBS Interactive France and its parent company on the grounds of intellectual property rights infringement and unfair competition.  It complained of the offer by CBS Interactive on its website to download software developed by Ordinateur Express without its authorisation, the inaccurate and incomplete presentation made by CBS Interactive of this software and the inclusion of commercial links enabling the downloading of competitors software on the same website. Ordinateur Express claimed that CBS Interactive should  pay around EUR150,000 damages and to cease continuing such acts.

On 25 March 2010, the French First Instance Court ruled that CBS Interactive had not infringed Ordinateur Express’s intellectual property rights because CBS Interactive had not reproduced the relevant software, which was hosted on Ordinateur Express’s servers. In relation to the unfair competition claim, the court ruled that Ordinateur Express had not proven that CBS Interactive was at fault on the basis that the web user was informed of the origin of the software file, no obligation to link to the home page of a website exists and the Google "AdSense" program used by CBS Interactive is a very common program used by a lot of companies with an internet presence.