In a decision dated March 31, 2015, the Paris Court of Appeal overturnedthe judgment of the Paris Civil Court of general jurisdiction of November 28, 2013 which declared the invalidity of the trademark “vente-privee.com” on the basis of article L. 711-2 of the intellectual property Code.

In its development, the Court of Appeal came to the conclusion that the judges of first instance were right to consider that the trademark “vente-privee.com” was deprived of a distinctive character as required by the intellectual property Code. Indeed, the trademark was composed by words commonly used in the French language, notably by other companies in the online selling industry.

Nevertheless, the Court of Appeal reaffirmed the possibility for a trademark to be regarded as distinctive by the effect of use. The European Court of Justice acknowledged this principle in a case related to article 3 of Directive 89/104/CEE of the Counsel of December 21, 1988 aiming to approximate the laws of the Member States relating to trademarks.

The Court considered that “vente-privee.com” acquired a distinctive character by the effect of use in regard to the use of the indication “vente-privee.com Prices” on the products and to the presentation of services in the written press and online, quotes in the media etc.