Parasitism

Parasitism is the conduct by which an economic operator places itself in the wake of another in order to profit, without spending anything, from the latter’s efforts, investments and reputation. It is sanctioned on the basis of ordinary civil liability, under Article 1240 of the French Civil Code. Parasitism is a form of unfair competition distinguished by the absence of any requirement of a likelihood of confusion and by the possibility of being found even between non-competing companies.

The conditions of parasitism

First, the victim must demonstrate the existence of an individualised economic value, the fruit of know-how, intellectual work or investments, whether a product, a concept, a range, a campaign or a reputation. Second, the victim must establish that the defendant captured that value by deliberately drawing on it. Third, the victim must prove a loss, which may consist in the loss of a competitive advantage or in the trivialisation of the captured value. The fault is assessed against honest commercial practices. The mere adoption of an idea or a market trend, which are free for all, does not constitute parasitism.

Parasitism and intellectual property

Parasitism is often invoked in addition to an infringement action, provided it rests on facts distinct from those constituting the infringement. It also protects creations that escape intellectual property law: a concept not protectable by copyright, a product whose patent or design has expired, an unregistered sign. It cannot however serve to recreate a monopoly that the legislature has refused. The applicable provisions are available on Légifrance.

The remedies

The court may order the cessation of the conduct under penalty, the publication of the decision and the award of damages. The Cour de cassation accepts that the loss is necessarily inferred from the parasitic acts, which lightens the burden of proof, but its assessment remains subject to demonstrating the savings made by the parasite and the loss suffered by the victim. In practice, the firm acts in these disputes, frequently combined with trade mark, design or copyright infringement actions, as part of its intellectual property practice.