FRANCE
FRANCE
If the first kind may be of some concern and, in our opinion, are contrary to French regulation, the second ones may not be considered as advertising and thus would not fall in the ambit of the law. In any case, it is hard to determine who has to act. Should it be trademark owners, consumer associations or the government? The question remains open, although trademark owners should monitor the situation and act against pages that tarnish their reputation.
On the other hand, some may consider that not acting would make them an accomplice to the act. This is, for the time being, not the case, but it might be necessary for the French government or the trademark owner to conclude an agreement with social network operators to prevent anarchic or uncontrolled creation of these types of profiles. The position would be the same on other social networks such as Dailymotion or YouTube.
‘Loi Evin’ and culture
Is our cultural heritage to be restricted by law? A public outcry gradually mounted as the philosopher Jean-Paul Sartre, the iconic comic character of Jacques Tati, and Charles de Gaulle’s culture minister Andre Malraux appeared in posters without their trademark cigarettes. A cigarette was even removed from the cover of former President Jacques Chirac’s memoirs. Now French MPs have approved a bill that excludes ‘cultural heritage’ from the anti-smoking rules. Didier Malthus, the Socialist MP who drafted the bill, said that those who had interpreted the law in such an “extensive way” had “put cultural works into question”.
As to alcohol, since 1991 many advertisements infringing the law have been condemned by the French courts. The French Association Nationale de Prévention en Alcoologie et Addictologie (Alcohol Addiction Association) brought before the court more than 20 advertisements, with a result of 18 adjudications in their favour.
This success story alarmed alcohol producers, advertisers, and media people. As a consequence, since 1991 there has been a real change in alcohol advertising: the law has modified the language of advertising, and it has lost most of its seductive character. For example, it is no longer permissible to use images of drinkers or depict a drinking atmosphere. As a result, the person drinking has disappeared from images that now highlight the product itself. Moreover, some slogans are now clearly prohibited.
130 World Intellectual Property Review e-Digest 2012
Te ‘Loi Evin’ had an important disruptive side effect in Europe concerning sport. Television retransmission of several international football matches was cancelled. Moreover, the law made it impossible for the American brewer Anheuser Bush to sponsor the 1998 Football World Cup in France (in spite of heavy lobbying of the French government).
The ‘Loi Evin’ has been constantly challenged but the attacks, which were at their maximum in 2004 with several proposals for new legislation to withdraw wine from the law, have not been successful.
Pros and cons can be found in president of the Alcohol Addiction Association Dr Rigaud’s opinion: “[The] EU can no longer content itself with economic objectives, but must become a social community where the collective interest has priority over particular economic interests. This collective interest is based on the fact that alcohol and tobacco are not products like any other: as harmful products causing addiction, their use must be controlled by the public authorities.”
When trademark and advertising laws clash with cultural issues and public health, practitioners have challenges to face.
David-Irving Tayer is a founding partner of Witetic. He can be contacted at:
tayer@witetic.eu
Benjamin Martin-Tardivat is a founding partner of Witetic. He can be contacted at:
tardivat@witetic.eu
David-Irving Tayer was legally trained in the UK and France. He specialises in IP/IT law, e-commerce, arbitration and mediation. His motto is “providing clients with responsive, prompt service and personal attention”.
Benjamin Martin-Tardivat was legally educated at the Sorbonne and CEIPI. He has developed a law firm that is focused on mediation as well as financial valuations of intangible assets. His motto is “understand clients’ strategic business objectives and ensure that our efforts support those objectives”.
www.worldipreview.com
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