The semi-figurative French marks Indigo, registered to designate, in particular, parking areas for motor homes, do not constitute infringement by imitation of the earlier French word mark Indigo, registered to designate the camping service.

A company, operating in the camping sector and holder of the French word mark Indigo, sued for trademark infringement in particular another company which operated, without its authorization, parking areas for motor homes, vehicles, buses, minibuses, car parks, under the French Indigo brand and semi-figurative brands.

The Paris tribunal de grande instance dismissed all of her claims, which the Paris Court of Appeal confirmed and the Court of Cassation quashed and annulled, with the visa of the old article L. 713- 3 of the Intellectual Property Code, on the grounds that “[…] by determining himself thus, without seeking, as it was invited to do, whether, in view of the relevant factors characterizing their relationships, the consumer, while distinguishing them, could to attribute a common origin to the services offered under the trademarks in presence, the court of appeal deprived its decision of legal basis ”.

This judgment is therefore delivered after cassation and the debate relates only to the requests made by the plaintiff company for infringement by imitation of the word mark Indigo.

At the outset, the Court ruled on the unconvincing argument supported by the defendant company and according to which it would not operate parking areas for motor homes under the Indigo sign.

After sweeping aside this argument relating to the materiality of the infringement by relying, in part, on two official reports of the bailiff entered into the debate, the Court proceeded, in a second step, in accordance with the founding judgments in the matter of counterfeiting lato sensu (see CJCE 11 nov. 1997, SABEL, aff. C-251/95, PIBD 1998. III. 248; Rec. CJCE 1997. I. 6191; D. cases 1998. 208, obs. J.-PS; D. 1997. 259; RTD com. 1998. 740, obs. M. Luby; RTD eur. 1998. 605, obs. G. Bonet; September 28, 1998, Canon, aff. C- 39/97, PIBD 1999. III. 28; RTD com. 1999. 552, obs. M. Luby; RTD eur. 2000. 99, obs. G. Bonet; 22 June 1999, Lloyd, aff. C-342/97 , PIBD 1999. III. 363; D. Affaires 1999. 1446; D. 1999. 215; RTD com. 2000. 89, obs. J.-C. Galloux; ibid. 269, obs. M. Luby; RTD eur. 2000. 99, obs. G. Bonet), to the global assessment of the likelihood of confusion, taking into account all the relevant factors.

Methodically, the trial judges visually, auditively and intellectually compare the signs in question in order to be able to determine whether or not they produce the same overall impression.

They consider without great surprise that the signs are similar, the few figurative elements of the contested marks in no way altering the immediately perceptible and dominant character of the verbal element (see in this sense Com. 6 Oct. 2015, n ° 14 -11.410, PIBD 2015. III. 784; LEPI 12/2015, n ° 11, obs. D. Lefranc; Bordeaux, 1st civ., 24 Oct. 2017, n ° 17/01848). The inventory of the characteristics of the signs at issue shows that the graphic elements, such as the colors used, the letter O in the form of a pointer logo or the inverted U are obviously secondary and do not modify the public's perception. have signs.

The Court then invests in what constitutes the heart of its judgment, namely the comparison of the services, the identity or similarity of the latter being essential in assessing the likelihood of confusion between the signs.

It should be recalled that the earlier mark Indigo was filed to designate, in Class 43, the “camping service (operation of campsites)” and that the signs at issue were registered to designate various goods and services, in particular, in Class 39 , “car park services, rental of parking spaces”.

It is specified here, on the one hand, that it is irrelevant whether the action relates to services belonging to classes different from those in which the earlier mark was filed, insofar as it is old and constant case law. that the Nice classification has only administrative value without legal significance (see for example Colmar, 1re ch., sect. B, 26 nov. 2003, n ° 2002/04948; INPI, 4 June 2019, n ° 18-5357), on the other hand, as the defendant points out at the referral, that the comparison of services must be carried out only on the basis of the services as designated in the wording of the marks, regardless of their operating conditions ( see Com. 18 Oct. 2016, n ° 15-14.523, PIBD 2016. III. 913; JCP E 2016. 1612; Owner ind. 2017, n ° 2, obs. P. Tréfigny).

The Court first of all provides, in an applied and careful manner, an essential reminder of the definitions of the terms "camping", "parking" or "parking lot" and "motorhome".

She believes that “the characteristic of a“ camping (operation of camping grounds) ”service is to provide its users with a fitted out space in which they can stay in a tent, in a caravan or in a camping site. because for short stays, genof a tourist character ”.

It radically deduces from this that such a service does not have the 'same nature, the same function or the same purpose as a parking area service which consists of providing the garage for motor land vehicles, in this respect. including motor homes, without in any way fulfilling an accommodation function or providing the facilities and equipment necessary to ensure the conditions for a tourist holiday and to create the living space that constitutes a campsite ”.

None of the plaintiff's arguments seem to succeed in the remand court of appeal, which in this case is very narrowly interpreted and gives us a negative definition of likeness.

The Paris Court of Appeal rejected, in fact, the circumstance according to which the camper van parking areas specific to the defendant company offer, in addition to technical services such as the emptying of waste water, the supply of water and electricity, a green space as well as a playground obviously coming to decorate the stay of the customers to tend towards the campsite. The very concept of a parking space in a garage, however, seems very remote here!

We are even further from the simple parking service as the plaintiff in the referral argues in vain, apart from the fact that the relevant public (motorhome operators) is the same, that, in certain cases, optional preferential rates are offered by the opposing party within the framework of partnerships that it has forged with operators in the hotel sector. Is this not an index of complementarity of services (see for example for the complementarity of catering services and alcoholic beverages, Paris, March 21, 2001, n ° 2000/05511)?

In addition, even though the code of conduct published by the French Federation of Motorhome Associations and Clubs does it prohibit motorhome operators from “unpacking” blinds, tables or even chairs like they could do it on campgrounds, it turns out the reality is quite different. To be convinced of this, you just need to visit some French seaside resorts during the summer, this by way of example.

Finally, the plaintiff company argues, in the appeal, that the defendant company changed its name during the proceedings and adopted the company name Indigo Group, which in its view could only aggravate the risk of confusion between the signs. .

The Court decides otherwise. Despite these elements and the strong similarity between the signs, it rules out the likelihood of confusion, considering that 'the average consumer in the category of services concerned [...] will not be inclined to attribute a common origin nor lead to associate these services as coming from 'the same origin'.

This judgment is therefore an excellent illustration of the application of the principle of the interdependence between the factors, a direct consequence of the rule of the global assessment of the likelihood of confusion. In this sense, the various relevant factors forming an integral part of the cluster of indices are interdependent and compensate for each other. The high degree of similarity between the signs did not, in this case, weigh down the lack of similarity of the services.

The plaintiff at the referral only has to accept that the company Indigo Group uses to designate its services the complex Indigo brands which benefit, by the way, from a strong notoriety from which it could indirectly benefit, at the risk of course. to be guilty of acts of parasitic competition.