Caen Commercial Court Second Chamber, First Section,


Hearing Of 26 January 2011, No. 2009/3070


PLAINTIFF: Parc d’Activités de la Mesnillière, 14790 VERSON,     


DEFENDANTS: SAS AD SYSTEMS, 20 rue François Arago, 14123 IFS,Mr Didier PIGEON, 1 impasse des Bleuets, 14123 IFS, Represented by Maître LOYGUE, attorney in Caen,


REASONING OF THE COURT Considering that Mr PIGEON and AD SYSTEMS have never hidden their intentions to study the possibility of manufacturing a new measurement instrument; Considering that ISL knew about the work carried out by Mr PIGEON through the Internet site of AD SYSTEMS and by a conference given in Warsaw (Poland) in June 2008; Considering that the participants


at this conference could only be competent professionals and fully informed about the methods of kerosene quality measuring, the representatives of ISL were fully able to appreciate the difference between the equipment displayed; Considering that these same


technicians had every possibility to study the Internet site of AD SYSTEMS;


Considering that the assessment


   the difference between the machines: “The machine that I was able to see is very different in its design and in its making from the machine that ISL offers to provide the “same service”. Everyone seemed to be convinced of this fact at the assessment meeting, namely that the techniques used by the two machines are essentially different.”;


Considering, accordingly, since it was for a purpose that ISL brought action before the Court, in order to gain detailed knowledge of the equipment developed by Mr PIGEON and his company, ISL should be condemned for the commercial prejudice suffered by AD SYSTEMS because of the proceedings; Considering that ISL, by acting in such a way, knew perfectly well that it “suffocated” AD SYSTEMS, Mr PIGEON and AD SYSTEMS should be awarded compensation as damages;


Considering that Mr PIGEON


and AD SYSTEMS cannot be criticised for making and marketing a competing product different from that offered by ISL, the claims of ISL


should be dismissed; Considering that Mr PIGEON and his company cannot be criticised for their effectiveness and the speed with which they marketed innovative equipment, which the assessment  in its entirety by ISL; Considering that since the assessment report formally acknowledges the difference between the equipment of the two companies, ISL cannot criticise Mr PIGEON for  13/8/2008, which ISL does not prove in any way, but only states in its submissions the eventual knowledge that a sub-contractor could have had  Considering that, for the sole purpose of delaying the marketing of the DR- 10, ISL makes the same claims against Mr PIGEON, claims  cannot disclose the alleged research of PAC/ALCOR, research about which the assessment report states: “The said employer was unable to prove that it had ever carried out such work.”;


Considering that ISL knew even before the start of the proceedings that it was not the same appliance, î‚¿ its representatives recorded the difference visually, that they knowingly allowed the proceedings to continue before acknowledging the î‚¿ that, in addition, they continued the proceedings on the grounds of an imaginary accusation, with the answer to their eventual question being contained in the assessment report;


Considering that there are grounds


for dismissing all of the claims, actions and submissions of ISL; Considering that the amounts


claimed by Mr PIGEON and AD SYSTEMS for loss of sales and î‚¿ with accuracy, the Court cannot î‚¿ validated by an accountant, and in these circumstances, all of the


amounts claimed cannot be awarded;


Considering that even though the Court cannot prejudge the commercial success obtained by the equipment produced by AD SYSTEMS, it seems obvious to it that the marketing of some copies of the DR 10 should establish it and AD SYSTEMS must be compensated for this;


Considering that, by contract, Mr PIGEON and AD SYSTEMS should have received large amounts provided by regional and private bodies, that these amounts were not allocated because of the pending proceedings and the defendants this compensation should be granted; Considering that the NCI and OSEO bodies as well as the Lower Normandy Regional Council should have provided the defendants with a total of €225,000, ISL should be ordered to pay the said amount as damages;


Considering that the Court does not


î‚¿ damage caused to the reputation of Mr PIGEON and his company, these claims on these grounds should be dismissed;


Considering that to claim their rights, the defendants have had to incur legal expenses, the provisions of Article 700 of the Code of Civil Procedure should be applied; Considering that the losing party pays the full legal costs;


ON THESE GROUNDS The Court, after having deliberated thereon according to the law, ruling publicly by a judgement in the presence of both parties, in the  claims of SAS Instrumentation  Orders SAS Instrumentation   AD SYSTEMS €100,000 for the commercial prejudice suffered because of the proceedings; Orders SAS Instrumentation  


AD SYSTEMS and Mr PIGEON €50,000 for the prejudice suffered for improper proceedings; Orders  Laboratoire to pay AD SYSTEMS and Mr PIGEON €225,000 for the funding not received because of the proceedings; Orders the publication,    newspapers or periodicals left to the choice of AD SYSTEMS, at the exclusive expense of Instrumentation  to €5,000, not including VAT, per insertion; Orders the return to AD SYSTEMS of all the information taken at the time of the operations for the report carried out on 17 April 2009 by Maître VALERY and Maître  destruction of any copy made by ISL, under threat of a penalty of €100 per day late;


Prohibits ISL from using any of the information obtained under these proceedings about the DR 10 appliance, and orders ISL to pay a        SYSTEMS and Mr Pigeon €10,000 as an indemnity on the basis of Article 700 of the Code of Civil Procedure; Orders provisional enforcement; Orders SAS Instrumentation   legal costs, including all the costs of   amounting to €94.60. Thus judged and pronounced on the day, month and year above.


The Clerk, Eliane LEROY. The Presiding Judge,


LEGAL RULING


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