A hard-fought victory for the organizers of the Tour de France

Cour de cassation, Commercial Chamber, 19 March 2025, No. 23-18.728

By all accounts, the Tour de France is the most prestigious and popular bike race in the world. Nevertheless, in a much commented 2023 judgment, the Paris Court of Appeal gave a rather restricted scope to this reputation, when it rejected the action brought by the holders of the rights on the Tour de France trademark, against a sportsman who had undertaken to row his way across France through rivers and canals, and had called this event ‘Tour de France à la rame’ (“à la rame” meaning “by rowing”), a name which he had registered as a trademark (with figurative elements; see picture below). The French Supreme Court (Cour de cassation) has recently overturned this decision, seizing this as an opportunity to reiterate the principles applicable to well-known trademarks.

The contested trademark

The trademark holders had based their action on former article L713-5 of the French Code of Intellectual Property (now article L713-3) which prohibits the use of signs which infringe a trademark which has a reputation where use of such a sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trademark. This provision must be interpreted in the light of the corresponding provision of the EU Directive on trademarks (currently article 10, point 2, paragraph (c) of EU Directive 2015/2436).

In its judgment (Paris Court of appeal, Pole 5 Ch. 1, 5 July 2023, No. 21/11290), the Court of appeal had rejected the action under the following reasoning:

• First, the Court undertook to assess whether ‘Tour de France’ is a trademark with a reputation. It found that the trademark is widely known in relation to bicycle race organization, but not to any other services.
• Secondly, the Court assessed whether the trademarks at stake share such a degree of similarity that the relevant section of the public would establish a link between them. On this point, the Court found that the similarity between the trademarks was low, either visually (notably because of the figurative elements in the later trademark), aurally (because of the words ‘à la rame’ in the later trademark) or conceptually (because the concerned public would perceive ‘Tour de France’ as designating a bike tour and ‘Tour de France à la rame’ as a rowing tour). This low degree of similarity would not be compensated by the elements in common, since ‘tour de France’ is a customary expression for a trip around France and has low distinctive character for a race around France. Besides, this expression loses its individuality within the expression ‘Tour de France à la rame’. The Court concluded from these findings that the concerned public would not establish any link between the conflicting trademarks. The action was therefore dismissed.
• As a further finding, the Court added that, in any case, there was no unfair advantage taken of the earlier trademark, since the defendant was himself known for having accomplished a rowing trip around France. Neither was there any risk of dilution of the ‘Tour de France’ trademark, as its repute cannot have the effect of preventing third parties from using that expression in its customary meaning. Nor was there any evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered consequent to the use of the later mark, or a serious likelihood that such a change would occur in the future.

The Cour de cassation found that the Court of appeal’s reasoning was flawed on several accounts, notably regarding the principles established by the Court of Justice of the European Union in the Intel case (CJEU, 27 November 2008, C-252/07, Intel Corporation).

• On the identification of the relevant section of the public concerned:

The Cour de cassation found that the Court of appeal had based its reasoning on the assumption that the reputation of a trademark is necessarily limited to the public concerned by the products or services for which this reputation was acquired. The Cour de cassation emphasized that some trademarks may have acquired such a reputation that this reputation extends beyond the public concerned by the goods or services for which those trademarks are registered. In such a case, it is possible that the public concerned by the goods or services for which the later trademark is registered may make a connection between the conflicting trademarks even though such public would be completely distinct from the public concerned by the goods or services for which the earlier trademark was registered.

In the case at stake, it could be deduced from the Cour of appeal’s findings, that the reputation of the trademark “Tour de France” is of such an exceptional intensity that it is known to the entire French public. Therefore, in order to assess the existence of a link between the conflicting trademarks, the Court of appeal should have taken into consideration such intensity, which it failed to do.

• On the assessment of the similarity between the conflicting trademarks:

The Cour de cassation reiterated that the comparison must be made with regard to the intrinsic qualities of the conflicting signs, without considering the marketing conditions of the products or services they designate. Therefore, the Court of appeal has erred when it denied the existence of any conceptual similarity, based on the finding that the concerned public would perceive the earlier ‘Tour de France’ trademark as designating a bike tour.

• On the assessment of the risk of dilution:

First, the Cour de cassation found that the reference to the fact that third parties cannot be prevented from using the expression ‘tour de France’ in its customary meaning is irrelevant here, since the plaintiffs’ claim only aimed at preventing the registration and use of this expression as a trademark.

Finally, it ruled that the Court of appeal should not have declared that there was no risk of dilution, without first investigating whether the use of the later trademark ‘Tour de France à la rame’ did not expose the earlier trademark ‘Tour de France’ to a risk of blurring, by weakening the connection made by the public and the media with said trademark, and leading them to think that these terms are generic, thus affecting its distinctive character and its essential function as an indication of origin.

It remains to be seen whether in its next judgment, the Court of appeal, even if it applies the relevant principles of law in a more orthodox manner, will or will not grant the requests of the trademark holders.