1709 Blog: for all the copyright community

Monday, 9 December 2013

Dilemma Resolved: No Unfair Competition

Last year I posted a short note on the 1709 blog on an appellate decision here in Paris regarding the thorny issue of the protection of TV formats (see here).

Eschewing copyright claims, the plaintiff (Endemol, producer of « Secret Story ») sued its rival (ALJ Productions, producer of « Dilemme » and led by a former Endemol France executive), relying on the law of unfair competition and parasitical conduct.

After scoring an initial success before the Paris Commercial Court, its action was dismissed by the Paris Court of Appeals.  Endemol appealed to the Cour de cassation (Supreme Court), which rejected the appeal on November 26th last (see here).

The Supreme Court approved the lower court’s finding that « the similarities between the two formats were instrically related to the enclosure genre of reality TV and correspond to the usual codes of the profession in this field, such that the alleged elements do not enable any specific identification of the formats claimed by Endemol ». 

The Court also pointedly remarked that ALJ Productions had adduced evidence that it had expended significant sums of money and effort in coming up with its show, which meant that it had not been free-riding on Endemol’s coattails.

While the law of unfair competition and parasitical conduct (grounded in the general tort of negligence under Section 1382 of the French Civil Code) should not be ignored in TV format cases, this case underscores the importance of bringing solid evidence of the distinctive elements of the format that has been allegedly unfairly copied – elements that go beyond what are expected and usual for the relevant genre (scènes à faire in US copyright-speak) - so that one can reasonably speak of a risk of confusion between the two competing formats.  As regards a parastical conduct claim, this requires clear proof of both plaintiff’s effort and expenses in developing its format and defendant’s failure to do so with respect to its own.

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