The Plaintiff, a company specializing in the sale of flowers and plants, owns a European Union trademark registration AQUARELLE for goods and services in Classes 31, 35, 41 and 42 as well a French trademark registration AQUARELLE for services in Classes 35, 38 and 42.

The Plaintiff has been operating the <AQUARELLE.COM> website since 1997, and in 2004, granted the company AQUARELLE.COM a non-exclusive license to use its trademarks on the eponymous website.

The defendant, founded in 1986, registered the domain name <lebouquetdefleurs.com> in 2009, which it uses to sell flowers.

The Plaintiff and its licensee discovered that the Defendant had reserved “aquarelle” as the keyword on the GoogleAdwords platform and added “Site Officiel” (official website) to its website advertisement, along with creating a “Bouquet and Aquarelle” section presenting bouquets with painting materials. They sued for infringement, unfair competition and damage to the reputation of the trademarks.

On October 12, 2017, the Paris Court of First Instance dismissed the Plaintiffs’ trademark infringement claims but upheld their claims for unfair competition and freeriding.

The Plaintiffs appealed this judgment. On March 3, 2020, the Paris Court of Appeal affirmed the initial ruling, except for dismissing the trademark infringement claims related to “Bouquet and Aquarelle” section.

Believing that the use of their trademark as a reserved keyword and within the website’s source code constituted infringement, the Plaintiffs appealed to the French Supreme Court.

On October 18, 2023, the French Supreme Court dismissed the appeal, establishing that a trademark owner can prohibit the use of its trademark within a website’s source code or as a reserved keyword on a search engine, for advertising identical goods or services for which the trademark is registered if such advertising does not allow, or makes it difficult for, the average Internet user to identify the origin of the goods or services.

Regarding the Adwords keyword “Aquarelle” reservation, the French Supreme Court agreed with the Court of Appeal that there was no likelihood of confusion for the average internet user. Indeed, the Court of Appeal legitimately observed that the disputed advertisement, though the first result following a search for “Aquarelle”, was immediately succeeded by an advertisement for <Aquarelle.com> , and the “aquarelle” sign was not used in the advertisement, the link, or the disputed site’s URL.

Conversely, for the term “Aquarelle” used in the website’s source code, the French Supreme Court clarified that the trademark owner could prohibit its use by a third party in the source code, even if not visible to the public, if it provides an alternative to the trademark owner’s goods or services as a result of an Internet search and does not allow, or only with difficulty allows, the average Internet user to ascertain whether the goods or services targeted by the search originate from the trademark owner, an economically linked entity, or a third party.