Failure to comply with GDPR = unfair competition

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In a commercial dispute, the court finds the absence of a privacy charter, which characterizes a violation of the GDPR. He considers that any violation of the rules during the exercise of a commercial activity necessarily entails an unfair competitive advantage for its originator, the defendant is guilty of an act of unfair competition.

The story is initially banal:

  • PLAISANCE EQUIPEMENTS is a French family business active in the agricultural machinery repair sector. It has an EU word mark and two patents.
  • A Dutch company ATWT manufactures customizable wear parts, especially parts for agricultural machinery. Its products are distributed in France by a CARBTECH company.
  • PLAISANCE believes that the products marketed in France by CARBTECH infringe its trademark and patents.

The summons is as long as an arm and raises several arguments:

  • Patent Infringement;
  • trademark infringement;
  • Unfair competition by breaking the rules.

We will review only a few of the arguments.

GoogleAdwords

Is the trademark infringed by using Google Adwords?

The court recalls the jurisprudence of the Court and recalls that “the use in Google’s Adwords program of keywords that even constitute a competitor’s trademark is not in itself prohibited and does not constitute trademark infringement by reason of such use alone. It is only illegal in the event of genuine confusion in the displayed results between the owner of the brand and the competitor’s products, i.e. when the results of the search do not or only with difficulty allow the Internet user to know whether the goods or services covered by the advertisement come from the owner of the brand or from a company that is financially linked to it, or, on the contrary, from a third party. »

The court finds that a search in Google for the terms “hammer for PLAISANCE crusher” provides the first choice to access the website “carbtech.fr”. The link is marked “hammer for crusher”. [Localité 7] – HRT High Resistance Parts” and underneath it says “Your partner against breaker hammer wear [Localité 7] “.

The court held that the use of the term “partner” and the preposition “for” in conjunction with the fact that it is actually the defendant’s website being displayed is such as to enable the average internet user to be informed of the identity of this one. instead, clarifying that in this case it is not an ordinary consumer, but a professional who uses shredding equipment, and that in this capacity he knows the spare parts market.

This judgment is consistent with the legal framework and case law: see our full file on reference for more information.

Unfair competition in violation of GDPR

The complainant alleges that the company CARBTECH does not comply with the rules applicable to a dealer website, neither the consumer law nor the GDPR, and that the violations of the applicable rules are a competitor in the “wear parts market” equality of competition, regardless of any risk of confusion, which constitutes a mistake.

The court approves:

“Unfair competition, based on the general liability principle adopted in Article 1240 of the Civil Code, consists of actions that deviate from the general rules of loyalty and professional honesty that apply in economic activities and govern business life, such as those that creates a risk of confusion with the products or services offered by another operator.

Failure to comply with rules in the exercise of a commercial activity which necessarily induces an undue competitive advantage to its originator constitutes an act of unfair competition (Cass. Com., March 17, 2021, No. 01-10,414).

Moreover, and as the plaintiff rightly pointed out, a situation of direct or effective competition is not a condition for the cause of action for unfair competition, which requires only the existence of illegal acts causing injury (Cass. Com., May 13, 2016 , no. 14-24,905). »

The court finds that there is a lack of mandatory information on the website, but above all that “CARBTECH collects personal data concerning in particular the name, e-mail and telephone number of the persons concerned without providing any information about the conditions of this or these processing operations and in fact limits itself to an information paragraph in the tab ‘legal notices'” .

The court criticizes this situation: “However, no confidentiality charter has been made available to the public, the dedicated link actually refers to an error page as shown in the bailiff report prepared on January 25, 2019.”

In light of all these elements and to the extent that any violation of the rules during the exercise of a commercial activity necessarily results in an undue competitive advantage for its originator, it should be considered that the company CARBTECH has been guilty of an act of unfair competition to the detriment for the plaintiff.

Comments

The principle of unfair competition arising from the violation of a law or regulation is not new.

What is innovative in this case is the systematic nature of the unfair competitive advantage: for the court, “any” violation of the rules during the exercise of a commercial activity “necessarily” entails an unfair competitive advantage for its originator. The combination of the terms “everything” and “necessarily” creates a formidable mechanism where the slightest mistake can have uncontrollable consequences. We have to wait a little longer to see if this formulation will be generalized in case law.

Let us remember that the lawyer in Belgium has Article VI.104 CDE, which responds to the same logic, but precisely allows a case-by-case approach: is prohibited “any act contrary to honest market practice, whereby a company undermines or may harm the professional interests of one or more other companies.” The courts have long interpreted this provision very broadly, which makes it possible to effectively sanction violations of the law.

More informations?

The annotated decision can be found in the appendix.

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