Infringement

Infringement is the interference with an intellectual property right through the exploitation, without the authorisation of the holder, of the protected subject matter. The term is common to all rights: patents, trade marks, designs, copyright, plant varieties, databases. Infringement is both a civil wrong, which gives rise to compensation and injunctions, and a criminal offence, punishable by imprisonment and fines. The applicable rules are found in the French Intellectual Property Code, available on Légifrance.

How infringement is assessed for each right

First, patent infringement is assessed by comparing the claims with the contested product or process, literally or by equivalence. Second, trade mark infringement is assessed in the light of the identity or similarity of the signs and goods, and of the likelihood of confusion. Third, design infringement rests on the overall visual impression produced on the informed observer. Finally, in copyright, infringement is assessed by the similarities and not the differences, through the taking of the original elements of the work. In every case, infringement is established irrespective of good faith, subject to the specific rules of patent law.

The remedies for infringement

On the civil side, the right holder may obtain an injunction against continuation of the acts under penalty, the recall and destruction of the products, publication of the judgment and damages. Damages take into account the negative economic consequences, including lost profits, the moral prejudice and the profits made by the infringer, or, in the alternative, a lump sum higher than the royalties that would have been due. On the criminal side, the penalties are increased for organised groups or dangerous products. Customs detention completes the system.

Evidence and defence

Infringement may be proven by any means. The saisie-contrefaçon, an evidentiary measure authorised on ex parte application, is its most effective instrument. The defendant challenges the validity of the title, the scope of protection or the reality of the acts, and may rely on exhaustion of rights or limitation periods. In practice, the firm devotes its activity to infringement litigation, for claimants and defendants, as presented on the page bringing a patent infringement action.