Unfair competition

The context

Appeal proceedings initiated by SA Crown Cork Company (Belgium), the appellant, against SA General Crown Cork Company, the respondent, whose judgment was delivered on 5 January 1956 by the Brussels Court of Appeal (9th Chamber).

This appeal follows the judgments of 12 November 1935 and 24 March 1953 rendered by the Antwerp Commercial Court, initiated by the appellant against the respondent for unfair competition.

The substance

Whereas the appellant was incorporated on 30 September 1919 under the name of The Belgian Crown Cork Company Ltd.;
Whereas on 16 April 1931, this name was changed to Crown Cork Company Belgium when the said company was transformed into a Société Anonyme;

Whereas when the respondent was incorporated on 13 August 1929, it took the trade name of General Crown Cork Company, considered by the appellant as being likely to create confusion with its own name;

Whereas the two firms have as their object the manufacture of corks of the same model;

Whereas in its real and general meaning the English word Crown which appears as the main accessory in the two names of the appellant, has nothing in common with a bottle closure system;
That if it were to be admitted that already in 1919, the words Crown Cork were used to designate in English-speaking countries, a generally known closure system, there is still nothing to support the claim that at that time these words were already part of a name usually used in Belgium by manufacturers of corks, such that this name would have belonged to everyday language;

Whereas on the contrary, the words Crown Cork appear as a new and original name, chosen by the appellant in 1919, to designate the object of its industry; that it is therefore indeed an original and characteristic name, which entails the right to exclusive property falling under the protection of article 28 of the coordinated laws on commercial companies;

Whereas the respondent has, since 1929, also used the words Crown Cork, it has created confusion between the names of the two companies against which the appellant is justified in opposing;
That the addition, by the respondent, of the word General opposite the word Belgium used by the appellant, does not establish a sufficient difference to distinguish the two firms;

Whereas, in addition, the respondent has used on various occasions, trademarks presenting striking resemblances with those registered by the appellant since 1921; that these marks are not, however, servile imitations and that consequently no accusation of trademark infringement can be made against the respondent;

But whereas the use by the respondent of the marks Ben Crowns and GCCC, given their resemblance to the appellant's marks Bel Crown and CCC, constitute an act of unfair competition against which the appellant is justified in opposing;

... Whereas everything in the respondent's attitude shows that it wanted by all means to create confusion between the two companies;
That in particular, the manner in which it not only used the names and brands General Crown Cork Company, Bens Crowns and GCC in advertisements, notices, advertisements, circulars, corks, etc., but went so far as to reproduce the texts emanating from the appellant, and what is more, to imitate the very form and arrangement of the characters used, clearly shows that its aim was to profit from the dishonest way in which it had created this confusion;
That moreover, it is established in fact that on several occasions, correspondents of the parties were misled by the resemblance of the two names;

Whereas it is not possible to understand the motives which would have led it to act in this way, the respondent, if it had not intended to profit from the advertising made by the appellant for its products;

Whereas from the foregoing considerations, it can be deduced that the appellant's claim is well-founded insofar as it is based on unfair competition;
That the court has sufficient data to already determine the damage suffered by the appellant;

The judgement

For these reasons: the Court ...

Forbids the respondent from using in the future a company name containing the words Crown Cork, and also from displaying in any commercial documents or objects the words Bens Crowns or the initials GCCC, either aligned or intertwined;

Orders the respondent to pay the appellant, as compensation, the sum of 25,000 francs;

Authorizes the appellant to publish this judgment in three French or Flemish language newspapers of the appellant's choice, under the title in capital letters Judicial Reparation, and this at the respondent's expense, these costs as well as those of a possible translation being recoverable from the respondent upon simple production of the receipts from printers or publishers and translators;

Orders the respondent to pay the costs of both proceedings.

The effets

Following this judgment, the name of SA General Crown Cork Company was changed to General Caps & Closures NV.

The manufacturer's mark on the caps was no longer an interlaced GCCC but a G in a circle.