Non-material damage (préjudice moral)

Non-material damage is harm to the non-pecuniary interests of the victim of infringement or of a related act, such as reputation, image, the integrity of a work or the standing of a business. In intellectual property, it is one of the three heads that the court must examine separately in setting damages, alongside the negative economic consequences and the infringer’s profits (Articles L. 331-1-3, L. 521-7, L. 615-7 and L. 716-4-10 of the French Intellectual Property Code). These provisions implement Article 13 of Directive 2004/48/EC.

The author’s non-material damage

An author suffers separate non-material damage where the infringement is accompanied by an infringement of the author’s moral rights, for example omission of the author’s name, distortion of the work or its disclosure without consent. This harm is compensated independently of commercial exploitation, and the Court of Cassation holds that infringement of moral rights necessarily causes damage, which relieves the author of proving its existence, without relieving the author of substantiating its extent in order to obtain more than a nominal sum. Compensation is owed to the author as a natural person or to the author’s successors in title, moral rights being transmissible on death.

Non-material damage of a legal person

The Court of Cassation accepts that a legal person may suffer non-material damage, so that a company owning a trade mark, a patent or a design may obtain compensation for harm to its image, to the reputation of its products or to the value of its sign, for example where the infringing products are of poor quality or sold through downmarket channels. For trade marks, the debasement and dilution of the sign are frequently found. In patent matters, non-material damage is less often established, the courts requiring concrete evidence such as harm to the right holder’s reputation as an innovator or discredit cast on the technology. Acts of free riding (parasitisme) or disparagement, based on Article 1240 of the Civil Code, may supplement the claim where they are distinct from the acts of infringement.

Assessment and proof

Non-material damage is assessed at the court’s discretion, the court nonetheless having to give reasons in the light of the circumstances relied upon: duration and extent of the acts, quality of the products, reputation of the right infringed, publicity given to the facts. It is compensated even where the right holder opts for the lump sum assessment based on royalties, the provision expressly reserving that possibility. The amounts awarded generally remain moderate and bear no relation to those for economic consequences. The claimant has an interest in documenting the harm with specific evidence, such as customer complaints, press articles or reports showing the depreciation, rather than relying on a general assertion. The award is in addition to the damages compensating economic loss.

Key points

Non-material damage is a separate head of compensation, available to natural and legal persons alike, which the court must examine separately from economic loss. It is presumed where the author’s moral rights are infringed and must be proved in other cases. Build a file of concrete evidence of the harm to image and make a separate quantified claim in the submissions.

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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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