Indirect advertising for alcoholic beverages

10 January 2013

Rebecca Delorey

Under the French “loi Evin” and more specifically Article L.3323-3 of the French Public Health Code, indirect advertising for alcoholic beverages is prohibited. According to this Article, what “shall be considered as propaganda or indirect advertising [is] the propaganda or advertising in favour of an organism, service, activity, product or article other than alcoholic beverage, which, through its graphics, its presentation, the use of a denomination, a trademark, an advertising emblem or another distinctive sign, reminds (consumers) of an alcoholic beverage”.
 
French Courts have interpreted this article to mean that, when registering alcoholic beverages with a trademark that is identical to a prior trademark registered for dissimilar goods, the rights of the owner of the prior mark are infringed since the latter can no longer be used without “reminding” consumers of the alcoholic beverage mark.

A recent decision of the Cour de cassation dated 20 November 2012 again confirms this interpretation of the law.  The owner of the trademark “Diptyque”, registered and used for home decoration goods, leather goods and clothing, sued Hennessy which had registered an identical trademark for alcoholic beverages. The Cour de cassation upheld the Paris Court of Appeal decision which had considered that the registration of the trademark “Diptyque” for alcoholic beverages deprived the owner of the earlier trademark of freely using its trademark. As a result, Hennesey’s trademark was cancelled.

In consequence, when selecting and filing alcoholic beverage trademarks in France, it is crucial to search and clear trademarks covering dissimilar goods.

Other articles related to the Food Law Digest Newsletter for January 2013:


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> The regulation of transfer agreements for agricultural products – an update on the “Liberalisation Decree”

> Popular wine brand 'Tokaj' remains in Slovakia

> Deficiencies in food control in Sweden

> The Czech Republic loses its famous butter spread

> Sarika Connoisseur Cafe Pte Ltd v Ferrero SpA

> Nutritional claims and new beer tax in France


> CJEU to claify dispute between Barcardi and Mevi on customs duty suspension arrangements