Criminal offence of infringement (délit de contrefaçon)

The criminal offence of infringement is the offence that punishes the deliberate violation of an intellectual property right. Each title has its own offences in the French Intellectual Property Code: Articles L. 335-2 et seq. for copyright and related rights, L. 521-10 for designs, L. 615-14 for patents and L. 716-9 et seq. for trade marks. The criminal route coexists with the civil infringement action, the victim being free to choose between the two.

Constituent elements

The material element corresponds to the acts reserved to the right holder: reproduction, performance, manufacture, importation, offering, sale or possession of infringing products, depending on the right at issue. Intent is required, in accordance with the general principle of criminal law, but its assessment varies between rights. For trade marks and copyright, the courts frequently infer intent from the material circumstances, the accused having to establish good faith. For patents, Article L. 615-14 expressly refers to a knowing violation of the proprietor’s rights, which makes proof of knowledge of the patent decisive and explains the rarity of criminal prosecutions in this field. The question of good faith thus plays a central role before the criminal court, whereas it is in principle irrelevant in civil proceedings.

Penalties

The basic penalties are three years’ imprisonment and a fine of 300,000 euros for infringement of copyright, designs and patents. For trade marks, the importation, exportation and industrial production of infringing goods are punishable by four years’ imprisonment and a fine of 400,000 euros, other acts by three years and 300,000 euros. The penalties are increased to seven years’ imprisonment and a fine of 750,000 euros where the acts are committed by an organised gang or, for certain rights, concern goods dangerous to health or safety. Legal persons face a fine multiplied by five together with additional penalties, including closure of the business, confiscation and public display of the decision.

Choosing the criminal route

The criminal route offers the investigative resources of the judicial police and customs, the possibility of prosecuting intermediaries and organised networks, and a stronger deterrent effect. On the other hand, it exposes the victim to the proceedings being controlled by the public prosecutor, to often longer delays and to less thorough technical examination than before the specialised civil chambers. The civil saisie-contrefaçon and claims for compensation remain available before the criminal court by joining the proceedings as a civil party. The limitation period for prosecution is six years for offences of this kind.

Key points

Infringement is an offence punishable by three years’ imprisonment and a fine of 300,000 euros, more for certain acts relating to trade marks and where committed by an organised gang. Intent, often presumed for trade marks and copyright, must be proved for patents. Reserve the criminal route for large scale infringement, networks and dangerous products, and prefer the civil route where the validity of the title or the scope of the infringement is technically disputed.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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