FRANCE Trends and Developments Contributed by: Karine Disdier-Mikus and Marguerite Senard, Fiducial Legal By Lamy
Parasitism As to parasitism, it exists in circumstances where an economic operator is following in the foot - steps of another to take advantage of the latter’s efforts and know-how, the reputation acquired, or the investments made without expense. To be admitted, the claimant must demonstrate that the company manufacturing and/or selling dupes takes an unjustified profit by copying the economic value, which is individualised and pro - vides a competitive advantage to the claimant, resulting from its know-how, intellectual work and investment. Parasitism is, therefore, the result of a combina - tion of factors taken as a whole. It may stem from the copying of a product (provided that it enjoys such a reputation or notoriety) and the placing on the market of a similar product that demon - strates the intention of an economic operator to follow the footsteps of a company. The burden of proof lies with the claimant – they must dem - onstrate, firstly, the existence of an identified and individualised economic value that is being violated, and secondly, the desire or intention to follow in the company’s footsteps. The manufacture and sale of dupes can defi - nitely amount to parasitic behaviour. Often, if not always, the leading and luxury brands are the targets for acts of parasitism. Luxury brands invest significantly in design research, manufac - turing, and advertising to ensure their products become famous, iconic, and easily recognisable to the public. In contrast, owners of dupes capi - talise on the reputation of these original products by producing copies at a lower cost and with minimal effort. The Paris Court of Appeal has indeed recog - nised parasitism acts in two major recent cases committed by selling dupes.
Copyright and unregistered community designs protections are, therefore, the efficient legal bases that were successfully invoked in a case opposing Christian Dior Couture against Zara France, Inditex and Fashion Retail dated 18 October 2019. The Paris Court of Appeal ruled that copyright and unregistered community designs of Dior sunglasses were infringements. In consideration of the three sets of objective factors, taken separately, namely the negative economic consequences for Dior, the non-mate - rial damage caused to it and the profits made by Zara and others (including their savings on investments, as established, and excluding the award of punitive damages), the Court consid - ers that the damages owed to Dior for the acts of infringement at issue, amounting to the total sum of EUR50,000. Dupes can not only infringe goods but also con - stitute acts of unfair competition and parasitism (regardless of whether or not they infringe upon any existing patents). Unfair competition and parasitism can either be invoked as an alterna - tive ground to an IPR infringement action or as a main ground when no intellectual property right can be invoked. Unfair competition must be assessed in the light of the principle of freedom of commerce, which implies that a product may be freely reproduced, provided there is no fault within the meaning of Article 1240 of the French Civil Code (such as creating a risk of confusion in the mind of the public as to the origin of the product). In the dupe context, unfair competition would, for instance, be admitted when a full range/line of products (or the characteristics) is reproduced, making it clear that a likelihood of confusion exists in the public mind between the dupes and the authen - tic goods.
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