November 14 2002
Following rapid expansion in 1999 and 2000, with an annual growth of more than 100%, the e-commerce market has slowed down significantly. Many e-commerce companies have gone out of business, and most of the remaining ones are struggling to make a profit. Nevertheless, e-commerce has become an important and lasting part of the European and worldwide economy. Forrester Research predicts that the e-commerce sector will represent over €100 billion in sales worldwide in 2002, of which about €70 billion will originate in the United States and €2.9 billion in France (0.93% of all French retail sales).
Over the past three years, France has been adjusting its legal framework to regulate various aspects of e-commerce. An important milestone should be reached in 2003, when France is expected to implement the E-commerce Directive (2000/31/EC). The draft law which will implement the directive, known as the Law on the Information Society (LSI), was presented to the French Parliament during the Jospin government. It is now under review by the current Raffarin government. While it will probably undergo modification, it is expected that much of the current draft will be retained when the new administration presents a new draft law to the French Parliament in 2003. For this reason, this Overview of French e-commerce law will also discuss the draft LSI.
The key issues relating to electronic transactions are the validity and enforceability of electronic contracts.
Under French law a contract is validly concluded, whether orally, in writing or electronically, when there is a "meeting of the parties' intentions". This means an offer and acceptance, provided these are (i) precise (ie, identification of the merchandise and price for an offer of sale), and (ii) binding (ie, unconditional will of the offeror to enter into a contract if the offer is accepted by the offeree). If either of these conditions is not met, then there is merely an invitation to treat.
Although acceptance can be express or implied, it must be unconditional to create a binding contract. Conditional acceptance constitutes a new offer. As a general rule, the silence of the offeree does not constitute acceptance. The French Consumer Code expressly requires that the consumer be informed of the duration of the validity of the offer and price in distance contracts. The draft LSI further provides that the offeror is bound by the offer as long as the offer is accessible electronically.
Under the current 'mailbox rule', a distance contract is deemed to be concluded when the acceptance is sent by the offeree (and not upon its receipt, unless otherwise specified by the offeror). The draft LSI provides that an electronic contract is concluded when the offeree, after placing the order and obtaining confirmation of the order by the offeror, confirms his acceptance. Such confirmation must be sent 'promptly'.
The draft LSI expressly recognizes the validity of contracts concluded in electronic form. Under the draft LSI, if a document is required to validate an act it may be drawn up and stored in electronic form. If this writing is required to be hand-signed by the contracting party, an electronic signature may be used if the conditions of such use "ensure that the notice may only originate from him".
However, certain categories of deeds and agreements may not be concluded electronically. These include:
Notarized acts cannot be concluded electronically, but this situation will change when the government issues a long-awaited decree establishing the conditions for the preparation and storage of such documents.
The draft LSI also requires that if the value of a contract exceeds the amount specified in a governmental decree, then the professional must archive the contract and permit the consumer to have access to it.
In order to be enforceable by the French courts, a contract must comply with provisions governing the proof of legal acts.
General evidence rules
Under general rules of French law, evidence of a contract concluded between merchants can be brought by any means. Between non-merchants, or in transactions between a merchant and a non-merchant, proof against the merchant can be brought by any means. The same is true for proof brought against the non-merchant, but only if the contract price or value does not exceed €800. If the contract price or value exceeds €800, then an original document in writing is generally required.
Electronic documents and signatures
Following the adoption of the Electronic Signature Law of March 13 2000, the definition of 'written proof' is no longer restricted to paper documents, but also includes "all series of letters, characters, figures, or any other signs or symbols with an intelligible meaning, regardless of how they are created or transmitted". This new definition acknowledges that electronic documents are admissible as written proof, to which the law confers "the same probative force as paper documents", provided that the author of the document can be duly identified, and that the document may be created and stored in conditions that ensure its integrity.
Further, the Electronic Signature Law continues to apply the longstanding rule pursuant to which proof of the parties' consent must be provided to substantiate a legal transaction. Traditionally, such proof resided in the parties' handwritten signatures. Under the Electronic Signature Law, the signature may also be in electronic form, if it results from a reliable identification process that guarantees the link between the signature and the document to which it applies. This reliability criterion is presumed, in the absence of evidence to the contrary, when the electronic signature is 'secure' - that is, when it meets the following requirements set forth in a decree of March 30 2001:
In order to ensure the fulfilment of these requirements, the decree of March 30 2001 provides that the electronic signature must be created using a secure creation device and controlled by means of the issuance of a qualified electronic certificate.
A secure creation device (hardware and/or software) is one that:
The creation device must be certified as complying with all these requirements, after evaluation by the prime minister's information security services.
A qualified electronic certificate - that is, an electronic document attesting the link between the signature verification data and the signatory - must be issued by a certification service provider (CSP). Although the CSP must comply with the requirements set forth by Article 6 of the decree of March 30 2001 (primarily relating to the reliability of the CSP's staff members, procedures and services, and their obligations to their clients in terms of confidentiality and information), it is not required to obtain authorization prior to providing certification services.
However, a CSP accredited by a specialized evaluation organization benefits from a legal presumption of compliance with the Article 6 requirements. This strong incentive is likely to ensure that most CSPs will seek accreditation.
In order to obtain accreditation, the CSP must apply to an evaluation centre - itself approved by the French Accreditation Committee (COFRAC) or its equivalent in other EU member states - which verifies compliance with applicable legal regulations and industry practices, and decides whether to issue a certificate of accreditation. The certificate must be renewed annually.
Existing French regulations do not address the important issue of the liability of CSPs.
The fundamental principle governing the liability in France of internet service providers is the distinction between technical intermediaries and publishers. Each of these categories is subject to separate rules on liability. The criterion used to distinguish between the two categories is whether the provider contributes to the creation or production of the content.
If the provider contributes to the creation or production of the content, then it falls within the category of 'publishers', which includes entities that publish or disseminate text, pictures, sounds or trademarks electronically. French judicial precedent has long established that a publisher is liable for unlawful content, unless it proves that it acted in good faith and without 'reckless disregard'. The publisher can usually meet this burden by showing compliance with the general duty of prudence and action established in case law for online hosting service providers.
Prior to the enactment on August 1 2000 of amendments to the Law on Freedom of Communication (September 30 1986), French courts held that service providers have a general, three-fold duty as concerns the third-party content that they host:
However, in deciding whether to remove third-party content, the publisher must assess the risk of legal action by the content provider.
If the provider does not contribute to the creation or production of the hosted content, then it will be subject to the limitations of liability discussed below.
The draft LSI retains the distinction between (i) technical intermediaries which do not make changes to the information transmitted or stored by them (which are subject to special limitations of liability), and (ii) technical intermediaries modifying the information transmitted or stored by them (which are subject to the general rules on publishers' liability). The draft takes a very broad approach to the definition of 'publisher', and suggests that a provider which makes any changes to the content, including purely technical changes, may be deemed to be a publisher.
The August 1 2000 amendments distinguish between two categories of technical intermediaries: internet access providers and hosting service providers.
Internet access providers
Internet access providers are defined as "individuals or legal entities providing access to online communication services other than private correspondence". Under the August 1 2000 amendments they are not subject to any specific rules on liability.
According to current case law, an internet access provider is not liable for content it makes accessible to its users or their use of such content; nor does it have any obligation personally to research or filter the content it make accessible. An internet access provider is only required to make filtering software available to its customers and to disable access to a site at the request of a "duly empowered institutional authority".
The draft LSI includes internet access providers within the broader category of 'telecommunications operators' and exempts them from civil liability arising from the content they transmit. Telecommunications operators providing temporary, automatic storage of transmitted content for the sole purpose of improving the operation of the network (caching services) are also exempted from civil liability arising from stored content, provided that they:
"act promptly to remove this stored content or to disable access to it as soon as [they] become effectively aware of the fact that the initially transferred content was removed from the network, that access to the ... content was disabled, or that judicial authorities ordered the removal of the ... content from the network or disabling of access to it."
The draft LSI expressly provides that internet access providers do not have an obligation to "monitor the information that they transfer or actively to investigate facts or circumstances revealing illegal activities".
Hosting service providers
'Hosting service providers' are defined as:
"individuals or legal entities providing, for free or for consideration, direct and permanent storage in order to place at the disposal of the public signs, texts, pictures, sounds or messages of all kinds accessible by these services."
They are subject to a broad exemption from liability for the content that they host. Under the August 1 2000 amendments hosting service providers are civilly or criminally liable for the hosted content "only if, upon notification by a judicial authority, they do not promptly take the necessary steps to prevent access to this content". Accordingly, a hosting service provider is not liable even if it has actual knowledge of the unlawful nature of the content that it stores and fails to take any steps to remedy the situation.
The draft LSI makes hosting service providers civilly liable for the content they host not only in the event that they fail to comply with a court order to prevent access to illicit content, but also "if, having actual knowledge of the manifestly illicit nature of this content, they do not take prompt action to remove it or disable access to it". The draft LSI does not define 'manifestly illicit content'.
The draft LSI expressly provides that hosting service providers are not obliged to "monitor the information that they store or actively to search facts or circumstances revealing illegal activities". However, unlike US law, the draft LSI neither establishes a formal notice and takedown procedure nor exempts the hosting service provider from liability for erroneously removing lawful content that it considers in good faith to be illicit.
The draft LSI deletes the term 'criminally' in the liability limitation and
therefore aligns the liability of hosting service providers with general criminal
law principles. As a result, a hosting service provider would be held criminally
liable as an accomplice for illegal content if it were proven that it knew that
its assistance would facilitate the perpetration of the criminal offence by
The current version of the August 1 2000 amendments and the draft LSI only provide for the limitation of liability arising from hosted content. They do not deal with the issue of the provider's liability for illegal activities resulting from such content. Under general liability rules, the hosting service provider would be liable only if it had knowledge of the illegal nature of activities resulting from the hosted content.
As a general rule under French law, the parties to an international contract may freely choose the law governing their contract and the competent court. However, these general rules do not apply to contracts concluded with consumers. Specifically, in line with the Rome Convention, the choice of a foreign law may not deprive a French consumer of the protection afforded to him or her by mandatory provisions of French law.
Therefore, if the foreign law chosen in the contract is less favourable to the consumer than the mandatory provisions of French law, then the French provisions (relating to consumer protection) supersede them. Mandatory provisions are those from which the parties may not derogate contractually.
The Consumer Code provides for situations where French law applies irrespective of the choice of a foreign law by the parties. For example, French rules on unfair terms will apply when the law governing the contract is that of a state other than France, provided that (i) the consumer or non-professional resides in France, and (ii) the contract is offered, concluded or performed in France. Likewise, if the parties (one of whom is a consumer residing in an EU member state) choose the law of a non-EU state as the governing law in a distance contract, then the courts must refuse to apply it. Rather, the law of the state of the habitual residence of the consumer must be applied.
Additionally, certain other French public policy laws (eg, rules on the mandatory use of the French language) will apply despite the choice of a foreign law.
The draft LSI limits the instances in which the choice of an EU member state law in a distance contract may be disregarded in favour of French law. Specifically, it authorizes the parties to have the contract governed by the law of the EU member state where the person offering goods or services (at a distance and in electronic form) is established, provided that the application of foreign law does not "deprive a consumer having its usual residence in [France] from the protection afforded to him by the mandatory provisions of French law relating to contractual obligations".
Provisions relating to contractual obligations are defined as "provisions applicable to the elements of the contract, including those specifying the consumer's rights, which have a determining influence on the decision to enter into a contract". Thus, if the draft LSI were to become law, when a French consumer enters into a distance contract that provides for the application of a foreign law, this law would be pre-empted only by those mandatory provisions of French law that relate to the elements of the contract and which have a determining influence on the decision to enter into the contract. The courts would have to determine on a case-by-case basis which consumer protection provisions have a determining influence.
Under French law, any clause in a consumer contract that gives exclusive jurisdiction to a court other than that which has jurisdiction over the residence of the consumer is deemed to be unfair within the meaning of the Consumer Code, and is null and void pursuant to Article 48 of the new Civil Procedure Code. However, pursuant to Article 15 of EU Council Regulation 44/2001, this consumer protection provision only applies when the contract has some nexus with France - that is, when "the professional exercises activities in [the consumer's home state] or has, by any means, directed its activities toward such state and the contract is within the context of such activities". There are not yet any reported cases applying this new principle in France.
Tort and criminal matters
As concerns tort matters, a victim of a tort may bring proceedings before the courts having jurisdiction over the place:
French courts have often held that the victim of an online tort may bring proceedings before them even if the tortious content was hosted on a server located abroad, if the victim can show that it was possible to access the content in France and that such content caused him harm in France. In the well-known Yahoo! Case, French judges held that by
"permitting the visualization in France of [Nazi-related] objects and eventual participation of an internet user resident in France in such exhibition/sale, Yahoo! Inc committed a tort on the French territory."
The French courts thus had jurisdiction.
With regard to criminal matters, French law applies to offences perpetrated in France. Pursuant to the French Criminal Code, an offence is deemed to be committed in France if one of the constitutive elements of the offence took place in France. The French courts interpret this provision to cover not only the place where the illegal act was carried out, but also the place where it produced its result. Therefore, if the victim of an offence resides in France or if the incriminated content hosted abroad may be accessed in France, French criminal law applies.
This broad application should particularly concern foreign e-commerce operators, since they could be prosecuted in France for violations of French law stemming from content that is perfectly legal in the country of their establishment, merely because this content is accessible from France.
The principal source of legislation regulating data protection in France is Law 78-17 of January 6 1978. This law is expected to be amended next year in line with the EU Data Protection Directive (95/46/EC) which should have been implemented into French law by October 24 1998.
Law 78-17 governs the collection, storing, processing and use of personal data in France, as well as the cross-border flow of personal data collected in France. It applies to all personal data which is automatically processed in whole or in part in France, irrespective of the data subject's nationality. The law defines 'personal data' as information that "allows, in any way, whether directly or not, the identification of the individuals to which such data refers". Law 78-17 defines 'automatic processing' as:
"every set of operations performed automatically, relating to the collection, recording, preparation, modification, storage and destruction of personal data, as well as every set of operations of the same nature relating to the use of data files or databases and including interconnections or aggregated use, consultation or disclosure of personal data."
The main French regulatory authority for data protection matters is the Commission Nationale de l'Informatique et des Libertés (CNIL).
Law 78-17 permits the automatic processing of personal data only following the filing of a declaration with the CNIL and receipt of the CNIL's written acknowledgement in response. A special form is available in which a company can declare that it is collecting personal data by means of a website.
The data protection law only requires the consent of the data subject when automatic processing of sensitive personal data is contemplated. However, regardless of whether the processed personal data is sensitive or not, the persons from whom the personal data is collected must be informed of:
This information must be provided to the data subject when the data is collected and at a later date if any of this information changes. If the data subject is not informed of who will receive his personal data at the time of collection, then he must be informed of its destination before it is transferred. If data is collected via a questionnaire, then the questionnaire must specify the above information.
However, when the data is collected indirectly (ie, not from the data subject but a third party), the data protection law does not require the data controller to notify the data subject of such collection.
Because Law 78-17 is less restrictive in this respect than the EU Data Protection Directive, the draft law implementing the directive generally requires that the data subject be notified of any data processing, even where the data is not collected directly from the subject. The draft law also requires the data subject's unambiguous consent to the data processing (ie, opt-in) rather than simple notification with a right to stop the processing (ie, opt-out).
Nevertheless, the recently amended Consumer Code maintains the opt-out system for the processing of personal data for marketing purposes where advertisements are sent to the consumer in the form of individualized distance communications, other than automatic calling machines and faxes (the latter being subject to opt-in). The draft LSI would also use the opt-out system for advertisements sent by email. However, these provisions would need to be amended to bring them into line with the rules set forth in the newly enacted Directive 2002/58/EC on the processing of personal data and the protection of privacy in electronic communications. This directive prohibits the use of email for the purposes of direct marketing without the recipient's prior explicit consent (ie, it provides an opt-in system for spamming).
The only exception under this directive applies to unsolicited commercial communications sent by persons who have obtained their customers' email addresses in the context of the sale of a product or a service, provided that (i) such commercial communications are limited to the seller's own and similar products or services, and (ii) customers "are clearly and distinctly given the opportunity to object, free of charge and in an easy manner", to such use of their email addresses both at initial collection of the address and when each message is sent to them. Thus, the opt-out system would continue to apply to manufacturers and service providers marketing their own products to existing customers whose email addresses they obtained in the context of past sales of similar products.
Law 78-17 permits the processing of sensitive personal data - that is, data that relates (directly of indirectly) to the data subject's racial origin, religion, political or philosophical beliefs, union membership or morals - only with the express consent of the data subject. The processing of data on criminal records (ie, offences, convictions and punishments) by private entities or individuals is prohibited.
Law 78-17 authorizes the CNIL to object to an international transfer of personal data to a recipient located in a country that does not provide an adequate level of data protection. Remote access from a foreign country is deemed to constitute an 'international transfer'. All countries that have ratified the Council of Europe Convention of January 28 1981 on Data Protection (ie, the member states of the European Union as well as Hungary, Iceland, Norway, Slovenia and Switzerland, and certain other countries specified by the European Commission) are deemed to satisfy the adequate data protection criterion. If the destination country has not ratified the convention or is not recognized by the European Commission as conferring adequate data protection, then the transfer is nevertheless generally possible if:
In addition, if the data is transferred to the United States, then the transferor may rely on the recipient's self-certification under the EU/US safe harbour rules.
On August 23 2001 the Consumer Code was amended in order to implement the provisions of the Distance Contract Directive (97/7/EC). These new rules entered into force on August 25 2001 and apply to:
"any sale of goods or any provision of services concluded without the simultaneous physical presence of the parties between a consumer and a professional, which uses exclusively one or more distance communication means in order to conclude this agreement."
Although the Consumer Code does not give examples of distance sales, any sales made via the Internet other than those that are specifically excluded by the provisions of the Consumer Code (ie, financial services, automatic vending machines, public payphones, construction and sale of real estate, and sales at public auctions) are subject to the new rules.
One of the major innovations under the amended Consumer Code is the expansion of the categories of information that must be provided to the consumer both before and after the conclusion of the contract. Until August 25 2001 only information about the 'essential characteristics' of the product or service and its price was required. The new rules require that, prior to the conclusion of a contract, the consumer be provided with additional information such as:
This information must be provided to the consumer "in a clear and comprehensible manner in any way adapted to the distance communication means used". The draft LSI further requires that the offeree be informed, among other things, of:
The final four categories only need to be provided by sellers that make the offer on a 'professional basis'.
Following the conclusion of the contract, the consumer should be provided with:
This information must be provided "in writing or in another durable medium" by the time of delivery.
Right of withdrawal
The new rules further extend the consumer's right of withdrawal to all distance sales, and not just those involving solicitation of the consumer at his home or business address as under the previous rules. Thus, the consumer may withdraw for any reason from any distance contract within seven days of receiving the goods or accepting an offer for the performance of the service, without any cost or penalty other than the cost of return shipment. This period is increased to three months if the consumer is not provided with the required information after the conclusion of the contract. If the consumer exercises his right of withdrawal, than he must receive a refund of the price paid within 30 days.
Unless otherwise agreed by the parties, the right of withdrawal does not apply to:
Mandatory use of the French language
Pursuant to the Toubon Law of August 4 1994, use of the French language is mandatory in
"the designation, offer, presentation, user instructions or manuals, description of the scope and conditions of the warranty of a merchandise, product or service, as well as invoices and receipts."
French must also be used in any "written, oral or audio-visual advertisement". The scope of the Toubon Law is very broad and includes, in addition to advertisements, all documents which aim to inform the consumer or user, such as catalogues, labels, order forms, manuals, receipts and agreements. Further, the Toubon Law applies irrespective of whether the purchase is of a product or service, or the offeree is a consumer or professional.
However, the Toubon Law does not require that French be the sole language used in advertisements or product or service descriptions. It allows the use of a foreign language, provided that it is accompanied by a French translation, which is as "legible, audible or intelligible" as the presentation in the foreign language (ie, it should have essentially the same size, graphics, colour or volume level).
Failure to comply with the Toubon Law is subject to a fine of up to €750 per violation (eg, every foreign-language user manual distributed to end users in France would constitute a distinct violation). The maximum fine for legal entities is €3,750 per violation.
The extent to which the Toubon Law applies to online sales is not entirely clear, and no published court cases deal with this issue. Theoretically, it is arguable that the Toubon Law applies to any advertisement or product description made to a French national. Pushed to its logical extreme, this position would require any advertisement or product description posted on any website in the world that is accessible by a French consumer to be translated into French. However, it is more likely that the courts will consider, on a case-by-case basis, whether the relevant website specifically targets French consumers. If this is the case, then the courts are likely to apply the Toubon Law. Criteria that would most likely be used to assess this include:
Accordingly, all information describing products and services offered on a website that specifically targets French consumers, as well as advertisements and general terms of sale or service on such site, should be in French or include an equally visible French translation.
The Consumer Code defines 'unfair terms' in contracts between professionals and consumers or non-professionals as:
"terms, the purpose or consequence of which is to create a significant imbalance between the rights and obligations of the parties to a contract to the detriment of a non-professional or consumer."
This definition is in line with the provisions of the EU Unfair Terms Directive (EEC/93/13). However, that directive only applies to 'consumers', while the French provisions also apply to a broader category of 'non-professionals'. According to recent French judicial precedent, a 'non-professional' means a professional concluding a contract for the purchase of goods or services that do not have a direct relation to his professional activity. The rules on unfair terms apply to any type of contract, whether standard-form or individually negotiated.
The French government may, following consultation with a body known as the Unfair Terms Commission, specify clauses that are to be deemed abusive. An example is any clause in a sale agreement which has the purpose or effect of eliminating or reducing the non-professional's or consumer's right to reparation in the event of a breach by the other party of any of its obligations. It is also considered unfair not to include in a sale agreement mandatory references to applicable legal warranties.
Even in the absence of a decree, a French judge may hold that a specific clause is abusive if it meets the definition set forth in the Consumer Code, taking into account, "at the time of conclusion of the contract, all circumstances related to the conclusion of the contract as well as all other clauses of the contract". During the court proceedings, the consumer must provide evidence of the unfair nature of the relevant clause. Examples of clauses recently held to be unfair by the courts include (i) clauses which gave the professional the right unilaterally to terminate an indefinite duration contract without cause and without notice, or (ii) unilaterally to change contract terms without valid cause specified in the contract. In both events, the clause deemed to be abusive was declared null and void. However, the remainder of the contract will usually continue to apply, if it can subsist without the unfair terms.
Further, the Unfair Terms Commission occasionally issues recommendations in which it advises professionals not to include certain clauses which may be deemed to be abusive in their contracts. Although these recommendations are not binding on the courts, they are a good indication of the future direction the courts will take.
The authority responsible for the registration of domain names in the '.fr' top-level domain is the French Association for Internet Names and Cooperation (AFNIC). In order to register a '.fr' domain name, the applicant must go through an internet access provider that is a member of AFNIC. The internet access provider will register a '.fr' domain name with AFNIC in the name of the applicant.
Only French companies and owners of trademarks registered with the French State Intellectual Property Institute (INPI), the Office of Harmonization of the Internal Market or the World Intellectual Property Organization may register a '.fr' address.
In order for a term to be registered in the '.fr' domain, it must be a company name, abbreviation, logo or trade name used by the registrant. A trademark may be registered as a domain name by the trademark owner provided that it is identical to the registered trademark. Trademarks can also be registered in the '.tm.fr' domain. Other second-level domains available include '.nom.fr', '.com.fr' and other special domains reserved for various categories of registrants.
The French domain registration system is based on the principle that any application for a domain name must be justified. The registration authority effectively verifies the applicant's rights to the domain name applied for, and its compliance with the trademark rules. This is done by searching online databases containing information on French companies and French-registered trademarks. If this is not possible, the assessment will be made on the basis of the documents provided by the applicant, such as the company registration certificate, Intellectual Property Institute trademark registration certificate or identity card. Similar verification procedures apply in the event of the change, transfer or suppression of a domain name.
However, the justification requirement does not apply to '.com.fr' addresses, which can be registered by any French resident or entity, provided that such name was not previously registered in the '.fr' domain. Subject to the verification rules described above, the '.fr' domain names are attributed on a first come, first served basis.
A '.fr' domain name may be transferred to a third party only in the case of:
It is not possible to sell a '.fr' domain name, since the sale of a domain name involves the suppression and re-creation of the domain name, and once the name is suppressed, any person (not just the purported purchaser) may register it in accordance with the AFNIC charter.
Due to the verification-based registration system, the number of cybersquatting cases in the '.fr' top-level domain is much lower than that in the '.com' domain. In fact, in 2001 there were just two published instances of litigation in the French courts relating to '.fr' domain names. In cases involving terms registered in the '.com' domain, French courts have held that registration of a French trademark constitutes trademark infringement and unfair competition where the trademark is used by the cybersquatter in order to benefit from the trademark's renown and to divert clientele from the trademark owner.
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