Eh you, Parody Face!

Let’s have a little French lesson today. In French, the word “bouc” means “Billy Goat”, a wonderful animal known for its fondness for old shoes. “Bouc” is pronounced as the English word “Book.” Also, if you want to insult somebody in French, you may opt to shout “Eh! Face de ..."(insert name of an animal.) Eh! Face de rat (rat face), Eh! Face de singe, monkey face, you get it... And yes, "face de bouc" means Billy Goat face.

The facedebouc site is a site created by Julien Berthomieu, a young French man. He likes billy goats! He writes on his site: “Being a sheep, lost in the herd, or worse, being the black sheep in the flock, it’s over! Now, we're billy goats, proud, with high horns, we're here! Facedebouc loves billy goats, these so brave animals, persecuted in history. Facedebouc is not a social network, and does not require any members’ registration , does not produce profiles, or allows its members to contact one another (because there are no members). Only the administrator can actually send messages and approve or not the comments. Facedebouc.com is a blog, and has nothing to do with the facebook site (translation face / face book) here, we like billy goats first, and books next, so, sorry thus apologies to bad English speakers and literature lovers . If you have any doubts, please visit the page that defines http://www.facebook.com/press/info.php?factsheet activity facebook.”

Well, Facebook does not agree. Mr. Berthomieu received a cease and desist letter from Facebook, enjoining him to stop using the trademarks and domain names facedebouc.com and facedebouc.fr. Indeed, researching the French TM office database, one can read that Mr. Berthomieu has registered the trademark facedebouc.com.

Pursuant to Article L713-3 b) of the French IP Code, it is prohibited, unless authorized by the owner, to imitate or use an imitated mark if there is a likelihood of confusion in the mind of the public, if the imitated mark is used for goods or services that are identical or similar.

Would the public be confused? Are the services similar? Facebook is a web site, Facedebook is a web site. Facebook is a networking site, Facedebouc is well, a goofy site. But according to the French Supreme Court, where there is imitation, there is necessarily confusion (Cass Com, June 29, 1999). Translating is imitating, but this is not a translation. The judge must assess whether the average consumer, with his average degree of attention would be confused.

As for parody, French judges had considered that there wasstill infringment if the parody was used in connection with the branded products, but the Paris Court of Appeals made freedom of expression, protected by the French Constitution, prevail over the interests of the TM owner. I this right is not absolute, "it can not suffer the restrictions necessitated by the rights of others."