The Longchamp Bag: The Supreme Court does not yet Consider it Case Closed

On 15 May 2015 the French Supreme Court fortunately passed a judgment quashing the Paris Court of Appeal judgment 13 September 2013.

The plaintiffs assigned infringement and unfair and parasitic competition on the company’s that were manufacturing and marketing a folding bag, believing that the bag in question replicated the combination of different characteristics of the Longchamp bag, a combination that demonstrates the impact of the creator’s personality that contributes to its original character.

This combination was clearly defined as follows:

• Its small press-stud flap, located between the two handles and which cover a part of the zip ; 
  
• The a slightly rounded shape of this small flap, highlighted by a thick topstitched seam ; 
  
• The topstitched seam down the front of the bag, as an extension of the flap and which evokes
  
• The outline of its internal pocket ; 
  
• The attachment of this flap to the back of the bag by a double topstitched seam ; 
  
• Its two handles terminating in rounded tips fixed, with the help of topstitched tabs, on each side of the bag opening ; 
  
• Its two small rounded tabs, located at each end of the zip, which stick out, highlighting the top corners of the bag ; 
  
• Its trapezoidal form, when viewed from the front ; 
  
• Its rectangular base 
  
• Its triangular profile ;

But the Court of Appeal as a basis for its decision to reject the infringement indicated that the bag in question did not replicate the dominant elements of the combination which give the Longchamp bag its originality, by invoking elements such as very apparent and thick topstitching, a gold button, the union of stitched brown leather with other materials and colours … whereas these elements were not cited by the Court when establishing the originality of the Longchamp bag and were also different from those listed by the appellant companies.

The Court of Appeal thus concluded that the bag in question exhibited significant differences giving it its own physiognomy and ensuring that the overall impression provided ruled out any risk of confusion.
The French Supreme Court quashed this judgment because:

• For counterfeiting the Court of Appeal should base its ruling solely on the elements that constitute the product’s originality, 
  
• The existence of a risk of confusion is irrelevant in the characterisation of copyright infringement.

The French Supreme Court recalls two fundamental points in copyright law and highlights some of the difficulties that are often encountered in this complex area.

In the context of a dispute it is therefore important to precisely define the elements or combination of elements that constitute the originality of a product without being too general or too greedy by wanting to appropriate common elements to the category of relevant creations.

Furthermore it is important to keep in mind that each category of industrial property rights has its own rules that cannot be substituted for one another. With the conditions of protection, on the one hand and analysis of rights infringement on the other being very specific. Thus, if the likelihood of confusion needs to be sought, through the use of a similar trademark, in trademark infringement cases, it has no impact in terms of copyright law.

It is therefore necessary to carefully choose the fundamentals of fact and law in the framework of an amicable or judicial action.

This involves advance analytical work, where possible straight from the product creation and consisting of the range of protections that may be considered, in order to select, and possibly combine them so they can be implemented at a later date to protect their assets and investments.