This case, on which the supreme court ruled on 9 January 2019, relates to legal action brought by Keter Plastic, a company specialising in plastic products that includes garden furniture which, on 6 August 2012, filed a complaint for infringement against Shaf, a company specialising in garden furniture, with regard to its European Union designs.
However, Keter Plastic’s commercial agent, Plicosa France, disclosed the existence of these infringement proceedings on 29 August 2012, resulting in several of Shaf’s clients cancelling their orders.
The tribunal and the court of appeal that heard the case brought by Shaf for payment of damages for unfair competition against Plicosa France, considered that there was no evidence to demonstrate that the information communicated by the defendant with regard to the infringement proceedings it had brought against the plaintiff lacked objectivity, was excessive, disparaging or even misleading.
The supreme court overturned the judgement by the Paris Court of Appeal of 17 January 2017 in application of Articles 1240 of the Civil Code and 10 of the European Convention on Human Rights, on the grounds that the disclosure by Plicosa France to Shaf’s clients of the legal proceedings for infringement not giving rise to a court ruling had no sufficient factual basis because it only relied on the sole complaint filed by the holder of the rights and represented a blameworthy disparagement.
This case demonstrates the need for extreme caution when using information about lawsuits, and even more so when there has been no ruling, given that the presumption of innocence must be respected.
The decision of the supreme court is all the more welcome since the initial infringement case was rejected by a ruling of 27 June 2013 confirmed by a decision on 27 January 2015.