Disparagement (dénigrement)

Commercial disparagement consists in publicly discrediting the products, services or person of a competitor. It gives rise to liability under Article 1240 of the Civil Code and is one of the acts of unfair competition, with no need for an infringement of an exclusive right. In patent litigation, it most often arises from communications surrounding a dispute.

The elements of commercial disparagement

Three elements are examined: disclosure of the statement to third parties, its pejorative nature and its connection with an identifiable operator. Criticism of a product is sufficient, the competitor's identity being inferred from the context. Freedom of expression and debate on matters of general interest are allowed, provided that the information has a sufficient factual basis, is expressed with restraint and the targeted operator can respond.

Communicating about a patent

Telling customers that a competitor infringes a patent before any decision has been given is the most common situation. The patent holder may inform the market that its patent exists, but asserting an infringement that has not been adjudicated, circulating a first-instance judgment without mentioning the appeal, or sending letters en masse to distributors gives rise to liability. Publishing a decision is lawful only if authorised by the court or presented accurately, which also applies to the aftermath of a patent infringement action.

Sanctions

The court orders the statements to stop, if necessary subject to a penalty payment, orders publication of a corrective notice and awards compensation for the harm, which includes loss of customers and damage to reputation. The action is brought before the Paris Judicial Court where it is related to a patent infringement claim. A claim of Parasitism is frequently brought at the same time, on separate facts.

Key points

Commercial disparagement turns on form as much as substance: a valid patent does not protect a holder who speaks ill of others. The prudent course is to address the competitor rather than its customers, to stick to established facts and to wait for the decision before commenting on it.

---

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. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

Patent litigation · Unified Patent Court · UPC case law · Tell us about your situation