Unfair competition
Unfair competition refers to all wrongful conduct committed in the course of business that unjustifiably harms a competitor's activity, in violation of the rules of fair trading.
Parasitism, or passing off / free riding, consists of profiting from the investments or reputation of a third party without necessarily competing directly with them, by taking advantage of their know-how, image or innovations to appropriate their economic value.
Civil liability actions are possible. It is then necessary to prove a fault, damages and a causal link.
Acts of unfair competition and parasitism
- Public denigration or denigration among business partners;
- Disruption of a competing company (mass poaching of employees, diversion of customers);
- Deliberate confusion in the public minds (similar trade names, copying of website, packaging or graphic codes);
- Slavish imitation of a concept, product, graphic universe or communication strategy.
Evidence and unfair competition or parasitism
In the absence of intellectual property rights, in order to prove the existence of unfair competition or parasitism, it is necessary to prove one's investments and damages.
As a preventive measure, the substantive investments shall be identified, competition can be monitored, “enveloppe Soleau” can be filed, etc.
In case of legal proceedings, it may be necessary to provide a bailiff's report, expert opinions, or WayBack Machine extracts.
Actions for unfair competition and parasitism are often complementary to intellectual property law. Sometimes, they are the only grounds for legal action, in the absence of intellectual property rights.
The role of the lawyer in unfair competition and parasitism
Advisory & Strategy
We implement differentiation and protection strategies. If we identify behaviour that could constitute unfair competition or parasitism, we carry out a legal risk analysis.
Contracts & Valuation
We draft and negotiate non-competition, confidentiality or non-solicitation clauses for your contracts.
Defence & Litigation
In the pre-litigation phase, we prepare formal notices or provide the necessary responses. We favour amicable resolutions whenever possible and assist you in negotiating settlements.
We also defend your interests before the competent jurisdictions, in summary proceedings or on the merits. We coordinate the gathering of necessary evidence and the determination of damages.