Unfair competition

In intellectual property matters, unfair competition is a practice that consists in creating a risk of confusion in the mind of the consumer as to the origin of the products and/or services he consumes. The risk of confusion can be characterized by the use of a trademark or any other distinctive sign of a third party.

Although the principle of free competition has been recognized in France since the Le Chapelier law (end of the 18th century), market players must nevertheless act fairly by respecting the laws and customs of commerce.

How to characterize acts of unfair competition?

Acts constituting unfair competition are sanctioned on the basis of civil liability (Article 1240 of the Civil Code), which requires the characterization of 3 elements:

A fault

The fault may be intentional or not. This may involve acts of disparagement, misappropriation of customers, disorganization of the injured company, or a risk of confusion.

A damage

In order to be able to act validly in unfair competition, it will be necessary for the injured company to characterize the damage that it suffers. This damage may be moral (for example, damage to the company’s image) or commercial (for example, a drop in sales).

A causal link between the fault and the damage

The plaintiff in the action must still show that the damage he or she suffers results from the fault of the third party.

How to act when faced with acts of unfair competition?

An action for unfair competition may be brought concurrently with an action for infringement, provided that the plaintiff demonstrates that the infringement results from facts distinct from those constituting the challenged unfair conduct. These two actions correspond to two distinct systems and do not have the same purpose:

The purpose of the infringement action is to punish infringements of intellectual property rights;
An action for unfair competition consists of compensating for the damage caused by breaches of commercial fairness.

The key point in these actions is therefore to characterize each type of injury and to prove it. If counterfeiting can be easier to prove (ownership of intellectual property rights, risk of confusion etc…), the action for unfair competition is more complex in terms of proof (evaluation of the damage suffered, establishment of the causal link etc…).

What is parasitic competition?

Parasitic competition consists of following in the footsteps of a competitor. It is characterized as soon as a company tries to divert to its profit, “without purse strings”, the notoriety, efforts, investments or know-how of its competitor. For example, the use of packaging that is identical or very similar to that used by a competitor, the use of the competitor’s graphic charter, etc., are likely to constitute parasitic behavior, which is assessed in concreto by the judges.

Our services

Assistance and follow-up

The Bouchara firm assists you in particular for :

The filing of your intellectual property titles with the Offices (trademarks, designs and models) or via a bailiff’s report, particularly in the case of creations, to give them a specific date and content;
The filing of your customs surveillance files.

Representation

Bouchara Law Firm represents your interests in both the claim and defense of contentious actions in intellectual property matters (infringement action, unfair competition action, seizure procedure, etc.).