Greenpeace Case pits freedom of speech against trademark rights

The Supreme Court has reversed a decision of the Paris Court of Appeal in a case involving Greenpeace France and Greenpeace New Zealand, and nuclear fuel and waste processing company Areva (April 8 2008).

Greenpeace France and Greenpeace New Zealand (collectively Greenpeace) reproduced Areva's trademark (a stylized letter A) and the trade name Areva without authorization. The reproduction was associated with the skull and crossbones symbol and the slogan "Stop plutonium - l'arrêt va de soi" (which may be translated as "Stop plutonium - stopping is common sense"). Moreover, the letter A in the slogan had been replaced by Areva's trademark and each stylized letter A was accompanied by a dead or sick fish.

Areva sued Greenpeace, alleging:

• trademark infringement under the Intellectual Property Code; and
• disparagement of its trademark under Article 1382 of the Civil Code (which is the legal basis for unfair competition actions).

The Paris Court of Appeal found in favour of Greenpeace France in summary proceedings. However, the court subsequently issued a judgment on the merits in favour of Areva. It ordered that Greenpeace pay €1 in damages on the grounds that the reproduction of the mark misled the public into believing that any products or services distinguished by the stylized letter A or the name Areva could be deadly.

The court took into account the fact that Areva had registered its trademark for various products and services that were not related to nuclear activities. As a consequence, Greenpeace had abused its freedom of speech by attacking activities which had no connection with Greenpeace's purpose (ie, to stop nuclear activities). Therefore, the court concluded that Greenpeace should repair the damage suffered by Areva.

Greenpeace brought a cassation appeal (ie, an appeal on a point of law only) before the Supreme Court. The Supreme Court held that the Court of Appeal had correctly found that:

• Greenpeace's actions disparaged Areva's trademark and, as a consequence, the products and services distinguished by the mark; and
• Greenpeace's actions were directed at the mark, not the company itself.

However, the Supreme Court noted that this did not mean that Greenpeace's actions were unlawful. It held that part of the Court of Appeal's decision was erroneous, as Greenpeace's aim was to protect the general interest and public health. As a consequence, the Supreme Court found that Greenpeace had not abused its freedom of speech. The Supreme Court overturned the decision of the lower court but did not remand the case, which is extremely rare (as it means that no issues are left to be decided).

The decision is significant for several reasons. First, the decision suggests that the purpose of an association established in New Zealand may be to protect the general interest in other countries, and that such purpose may be acknowledged by a French court. However, the issue of the location of Green Peace New Zealand was never really discussed.

More importantly for trademark owners, the decision suggests that freedom of speech may allow a party to disparage a trademark. One issue that is still to be clarified is whether the decision applies to any kind of speech, or only speech that aims to protect the general interest and/or public health.

Richard Milchior, Granrut Avocats, Paris