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Using a third party’s product in an advert: the courts’ assessment of its ancillary character.

By Vanessa Bouchara - Expertise Blog

It often happens that advertisers use external company’s protected products in their advertising without first seeking the necessary authorization.

In cases dealing with this question, the courts have had to determine whether the use of these products in advertising is of an ancillary nature or whether their use in an advert is in fact benefitting and enriching the owner of the product.

There has been a number of decisions dealing with this question and few  have favored the theory that the products are ancillary unless the product in question is partially visible in the advert.

As such, using a work cannot be held to be an infringement when it appears in a photograph in a functional use, in the background or when it is integrated into the shot without necessarily being promoted (Paris Court of Paris, Pôle 5, 2nd Chamber, 2nd December 2011).

In another case in which the court did not find in favor of the ancillary argument, the Court of Appeal was dealing with the use of two designs of a bracelet which were very clearly used in a duty free shop. The Court held that ‘the design contributed to the overall appeal of the advert’ (Paris Court of Appeal, Pôle 5, 2nd Chamber, 10th February 2012).

The Court of Cassation addressed this very question in a case between Louis Vuitton and H&M. (Court of Cassation, Commercial Chamber, 6th May 2014)

The Court upheld the earlier Court of Appeal’s ruling in that the use of a shoe design in advertising photographs to promote an item of clothing constituted infringement.

In arriving at this conclusion, the Court of Appeal held that far from being ancillary or accessory, the shoes which appeared in the photographs stood out much more than the model wearing them who was in a short dress and who was photographed face on in front of a white backdrop. These shoes were intended to promote the dress and therefore undeniably contributed to the staging of the photographs which was meant to promote the clothes being sold by H&M.

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