There are business assets that do not meet the legal requirements for protection under intellectual property law (patents, trademarks, designs, copyright, etc.). Know-how, business methods, commercial relationships, reputation, and promotional investments are all valuable assets that may be appropriated, copied, or exploited by third parties without formally infringing any intellectual property rights. Nevertheless, such conduct may still constitute unlawful acts capable of causing significant harm. In certain circumstances, these acts may be addressed through claims based on unfair competition and/or parasitic conduct.
Examples include a competitor systematically reproducing your product references without bearing any of the associated development costs, a company riding on the coattails of your reputation to benefit from your investments, a distributor disparaging your products to promote its own, or an operator deliberately creating confusion with your visual identity without formally reproducing your trademark. Unfair competition and parasitic conduct can take many forms and evolve alongside changing business practices.
Claims based on unfair competition and parasitic conduct often complement intellectual property infringement actions. They may also be pursued independently, regardless of whether an infringement claim is brought. We have extensive expertise in all of these areas, enabling us to develop comprehensive and consistent strategies with our clients. We represent them, both as claimants and defendants, before the competent civil and commercial courts.
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Focus on parasitism
Parasitism is a judge-made legal concept that has gradually developed into an autonomous cause of action at the intersection of civil liability law and intellectual property law. Its contours were clarified by the French Supreme Court (Cour de cassation) in several decisions issued in June 2024. Since then, the Court has continued, through its subsequent rulings, to define its cumulative conditions with increasing rigor. It is necessary to:
- establish the existence of an identified and individualized economic value;
- demonstrate the deliberate intention of the third party to place itself in the wake of that value in order to unduly benefit from it.
The evidence is assessed globally, on the basis of a body of consistent indicators, independently of any likelihood of confusion.