Unfair competition lawyer

Putting a stop to unfair competition

Your competitor is using unfair methods to divert your customers. He uses your graphic charter, your trade name, your packaging. They publish disparaging remarks about your products or services to your customers. They hire your employees to gain access to your files or know-how. Or they follow in your footsteps to take advantage of your investments without spending anything - this is economic parasitism, a form of unfair and parasitic competition that does not even presuppose a direct competitive relationship.

These situations call for a rapid response. An action for unfair competition is based on article 1240 of the Civil Code, the basis of civil liability in tort: any wrongful act that causes damage obliges its perpetrator to make reparation for it. The case law of the Cour de cassation recognises that an act of unfair competition necessarily causes a commercial disturbance. But to obtain compensation for material damage - lost profits, loss of sales, disorganisation - proof must be provided. Here, an unfair competition lawyer plays a decisive role in building the case.

Our firm handles

• Putting together a file of evidence and taking evidence from witnesses
• Investigative measures in futurum (art. 145 CPC) to secure evidence before trial
• Detailed formal notice
• Summary proceedings to obtain the cessation of acts under penalty payment
• Action on the merits before the Commercial Court to obtain damages and compensation for loss suffered

Defending against an accusation of unfair competition

Being sued for unfair competition can expose your company to business bans under penalty of fines, significant damages and judicial publication damaging your reputation. The claim may come from a direct competitor, a former associate or a business partner with whom a contract has been broken.

Not every accusation has merit. The plaintiff must prove a fault, a loss and a causal link between the two - the three constituent elements of delictual liability. The Court of Cassation strictly regulates the conditions of the action: the prohibition ordered by the judge must remain limited to identified unfair or parasitic behaviour. The judge cannot impose a blanket ban on a commercial activity on the grounds of unfair competition. This principle of proportionality protects the freedom to trade.

Our firm defends you at every stage of the proceedings. We analyse the grievances, check whether the elements of civil liability have been met and, if necessary, challenge the alleged loss and the method of assessment used by the plaintiff. We defend your interests before the Commercial Court, the Court of Appeal and, if necessary, the Court of Cassation. Competition lawyers must be familiar with the latest case law from the Commercial Chamber, which is constantly evolving.

The four forms of unfair competition

Case law in commercial law distinguishes four categories of unfair competition, each meeting specific conditions. Identifying them correctly will determine your litigation strategy.

Confusion

Confusion consists in creating a likelihood of confusion in the mind of the public between the products or services of two competing companies. The Court of Cassation requires an overall assessment: the judge must determine whether the use of different elements, considered as a whole, creates a likelihood of confusion. This type of infringement is common on the internet. Common examples: copying a website, imitating a trade name or sign, reproducing packaging or a trademark.

Denigration

Denigration is the public dissemination of information likely to discredit a competitor, its products or its services. A recent ruling by the Commercial Chamber of the French Supreme Court (Cour de cassation) states that the mere fact of informing third parties of a possible infringement without having a legal title confirming it constitutes disparagement. Denigration can take place on social networks, through unfair comparative advertising, in the press, or in exchanges with customers.

Parasitism

Parasitism is the act of following in the footsteps of another economic operator in order to take advantage of their efforts and know-how without spending anything. Parasitism differs from classic unfair competition in that it does not presuppose a direct competitive relationship between the parties. An economic agent in a different sector can be punished. However, the Court of Cassation has set limits: a competitor who uses his own well-known motif in line with market trends is not committing an act of parasitism.

Disorganisation

Disorganisation covers manoeuvres aimed at destabilising the internal workings of a competitor or the market as a whole. The most common case is the mass poaching of employees, but case law also punishes the possession or appropriation of a competitor's confidential information by a former employee, even when the latter is not bound by a contract containing a non-competition clause. The systematic violation of a regulation in order to gain a competitive advantage also falls under the heading of market disruption.