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The direct loss of turnover for French companies linked to counterfeiting has been estimated at 6 billion euros per year. How to react if you are affected?
HOW TO REACT TO A COUNTERFEIT?
You must first make sure that it is indeed a counterfeit.
Counterfeiting is a concept defined by law. It consists of the use or reproduction of an element protected by an intellectual property right without the authorization of its holder. It can be, for example, a copyright or a patent. In case of suspicion, it is important to know what type of law protects the product that is the subject of counterfeiting.
Faced with a counterfeit , it is possible to tolerate or react. Some companies do not always choose to take legal action, particularly when the infringing product has little commercial value, or because of the high costs that legal proceedings can represent. If a company wishes to take legal action, it should be noted that the acts of infringement have a limitation period of 3 years. It is always advisable to react quickly to avoid the disappearance of evidence linked to the counterfeit product.
COLLECT THE EVIDENCE
In the event of counterfeiting, it is advisable to constitute a file of evidence to present it to the magistrate. Proof of counterfeiting can be done by any means: catalog, screen print, photos, testimonials… It is essential that this evidence be dated to avoid any dispute.
RECOGNIZE THE INFRINGEMENT
There are two types of evidentiary measure to establish the counterfeit. First, by the statement of purchase: a bailiff comes to observe the marketing of the counterfeit product in a public place or observes the reproduction of the counterfeit product on the Internet. It is also possible to make a counterfeit seizure which is done on the order of the president of the tribunal de grande instance: a bailiff goes to the competing company to seize all elements related to the counterfeit product (counterfeit product, accounting relating to the counterfeit, etc. ). This set of elements will make it possible, in the event of a procedure, to calculate the amount of the damage.
THE SUMMONING BEFORE THE COURT
If the company decides to take legal action, it can seize the tribunal de grande instance by summons. In this act, it can request a certain number of measures against the counterfeiter: prohibition of the use of the disputed product, destruction or confiscation of the disputed goods. It can also seek damages, request the publication of the judgment and the reimbursement of part of the costs generated by the procedure.
DAMY Law Firm , Nice, Counterfeiting, Update 2022