Website and customer canvassing with regard to active sales

The Paris Court of Appeal sentenced a distributor for unfair competition because of the violation of territorial exclusivity granted to another distributor.

EPSI and MAT PLAST both market products under the SHINI brand, under exclusive distribution agreements with the company under Taiwanese law, SHINI.

The products are marketed respectively on the territories of Algeria and Tunisia for the former, and on the French territory for the latter.

The company MAT PLAST summonsed the company EPSI, accusing it of having infringed its territorial exclusivity. The President of the Commercial Court of Lyon granted this request and ordered, under penalty, the company EPSI to cease all advertising, canvassing, communication and marketing of the products on French territory.

At the same time, EPSI assigns MAT PLAST in particular for the purpose of being authorised to use its website for the communication and marketing of SHINI products.

The Commercial Court of Bourg-en-Bresse upheld the claims of EPSI, and MAT PLAST appealed against the latter decision.

The Lyon Court of Appeal orders EPSI to repair the damage suffered by MAT PLAST due to the violation of its territorial exclusivity, and dismisses all its claims.

The judgment was censured by the Court of Cassation on the grounds that the Lyon Court of Appeal should have checked whether the disputed sales were compatible with the provisions of Article 101 § 1 TFEU, and the case was referred to the Paris Court of Appeal.

In the commented judgment, the Paris Court of Appeal therefore ruled on the applicability of European Union law to the dispute and on the apprehension of the unfair competition alleged by MAT PLAST.

The Paris Court of Appeal held that the distribution contract between the Supplier and MAT PLAST provided for Exclusivity clause throughout the French territory for the marketing of SHINI products leading to the partitioning of the relevant market, and therefore likely to significantly affect trade between Member States. It therefore upholds the applicability of the provisions of Article 101 (1) TFEU to the dispute in question.

On unfair competition, the Court decides whether the use made by EPSI of its website on the one hand, and the solicitation of customers by EPSI alleged by MAT PLAST on the other hand, constitute active sales.

Regarding the use of the website, the Court begins by recalling that the creation of a website is a priori assimilated to a form of passive sale. It then makes a detailed assessment of the facts and retains:

• that the home page of the website makes no mention of the specific distribution of SHINI products;
• that it is not a merchant site, but a general presentation site of the company and the products it distributes; and
• that the use of its website in French for the Maghreb countries, in which it has an exclusivity, may have effects beyond this territory and allow marketing of these products in France following passive sales.

The Court therefore concludes in the absence of active prospecting of customers on French territory via the website of the company EPSI.

The violation of the territorial exclusivity of MAT PLAST cannot therefore, according to the Court, be upheld in this respect.

Secondly, on canvassing, the Paris Court of Appeal held that EPSI had made active sales with regard to the elements submitted to the debate by MAT PLAST, such as:

• an email expressly referring to the visit of an EPSI sales representative to a French customer for a SHINI product offer; or
• certificates from managers of companies in France establishing that they have been solicited by email or by a sales representative of the company EPSI.

As these elements are not seriously contradicted by the company EPSI, the Court finds that these acts constitute faults of unfair competition likely to engage the tort liability of the company EPSI (Paris Court of Appeal, October 2, 2024, No.23-09584)