Ban on selling for unfair competition: how far can a judge go

A ban on selling imposed for unfair competition must be limited to conduct that is unfair or amounts to free-riding (parasitisme). The commercial chamber restated this on 28 January 2026: a court cannot prohibit a competitor from marketing a compatible product altogether, where that product can be sold in compliance with the applicable regulations and without any likelihood of confusion. The ban must target the fault, not the activity.

Key points

• A judicial ban granted on the basis of tortious liability may only cover conduct held to be unfair or free-riding, and not lawful activity.
• A court cannot prohibit the sale of an interface product compatible with a competitor's equipment where that product can be marketed in compliance with the applicable regulations and without any likelihood of confusion.
• Freedom of trade and industry, from which freedom of competition flows, requires bans on carrying on an activity to be construed narrowly.
• The Cour de cassation (France's highest civil court) itself recast the ban: sales are prohibited only where commercial references create a likelihood of confusion, or where the product does not comply with the applicable regulations, subject to a periodic penalty payment (astreinte) of €5,000 per breach recorded.
• A business held liable for unfair competition retains the right to continue the same activity, provided it corrects the wrongful arrangements.

What the commercial chamber held on 28 January 2026

The commercial chamber partially quashes the court of appeal's decision and holds that the court could not prohibit the sale of interfaces that comply with the regulations and are marketed without any likelihood of confusion (Com., 28 January 2026, No. 23-20.245). One company designs and develops an electronic agricultural spraying system, made up of a master unit and units connected by cabling. Another company, whose manager (gérant) is also a defendant, designed an interface connecting that master unit to a satellite guidance device marketed by a third company. That interface was marketed by the latter two companies. The designer of the spraying system brought proceedings against them for unfair competition.

The decision under appeal (CA Douai, 11 May 2023, No. 16/00295) found two faults: the interfaces did not comply with a ministerial order on inspection procedures for sprayers, and misleading commercial references were used to market them. On that basis, the court of appeal prohibited, subject to a periodic penalty payment, the sale of interfaces enabling satellite navigation systems to be connected to the designer's units. The appeal to the Cour de cassation complained that the ban was not confined to the conduct that had been sanctioned.

The commercial chamber upholds that complaint, on the basis of the Act of 2-17 March 1791, the principles of freedom of trade and industry and of free competition, and Article 1382, now Article 1240, of the French Civil Code. It states the rule in a single sentence (free translation):

It follows from these provisions and these principles that a ban on carrying on an activity imposed by a court must be limited to conduct that is unfair or amounts to free-riding.

The Court then rules on the merits, without remittal, and recasts the ban. The companies and the manager may sell such interfaces on two cumulative conditions only: they must not use commercial references creating a likelihood of confusion with the designer's interfaces, and they must comply with the regulations applicable to sprayers. The periodic penalty payment of €5,000 per breach recorded is maintained.

What ban can a court impose for unfair competition?

A court may prohibit the wrongful arrangements of an activity, but not the activity itself where it can be carried on fairly. The distinction is decisive in practice. Prohibiting the sale of any compatible interface amounted to shutting the competitor out of the interface market for good, whereas the faults found concerned only two points capable of correction: the commercial presentation and the technical compliance of the product.

For the business held liable, the consequence is concrete. It retains the right to manufacture and sell an interface performing the same function as its competitor's, provided it brings the product into compliance with the regulations and markets it under references that do not suggest a common origin. The sanction bears on the conduct, not on the product or on the market.

For the claimant business, the lesson is the mirror image. Securing a finding of unfair competition does not confer de facto exclusivity. The application for a ban must be framed by reference to the precise conduct complained of, failing which the measure will be narrowed.

Scope of the ruling for freedom of trade and industry

The decision confirms that a judicial ban on an activity remains an exception to freedom of trade and industry, from which freedom of competition flows. The commercial chamber expressly ties the rule to the Act of 2-17 March 1791 and to Article 1382, now Article 1240, of the French Civil Code. Compensation for the damage caused by a fault justifies only those measures necessary to bring that fault to an end.

The partial quashing without remittal reinforces the practical scope of the ruling. The Cour de cassation, acting on the suggestion of the defendant to the appeal, applied Article L. 411-3, paragraph 2, of the French Code of Judicial Organisation and Article 627 of the French Code of Civil Procedure, in the interests of the proper administration of justice. It thereby substituted a targeted ban directly for the general ban that had been set aside, without any fresh examination by a court of appeal.

The first four grounds of appeal did not call for a specially reasoned decision. The court of appeal's findings on the non-compliance of the interface and the use of misleading commercial references therefore stand. Only the scope of the ban was corrected.

How to frame or challenge an application for a ban with a periodic penalty payment

The drafting of the application for a ban determines how robust it is: wording that is too broad exposes the measure to being narrowed, whereas targeted wording strengthens it. A claimant bringing an unfair competition action is well advised to describe each wrongful course of conduct and to seek a ban on that conduct as such, rather than a general prohibition on marketing.

The defendant, for its part, has a free-standing argument. Even where the faults are established, it can argue that the ban sought goes beyond those faults and infringes freedom of trade and industry. The decision under review shows that this complaint can succeed regardless of the fate of the other challenges.

The wording of the periodic penalty payment deserves the same attention. A penalty payment per breach recorded only makes sense if the prohibited conduct is described precisely: recording a breach presupposes knowing exactly what is prohibited. A vague ban exposes both parties to litigation over the assessment of the penalty.

The checks to carry out before marketing a compatible product

• Check that the product complies with the technical regulations specific to its sector: regulatory non-compliance was held to be a civil fault towards the competitor.
• Review commercial references, invoice wording and product descriptions: a statement suggesting that the product originates from the manufacturer of the main equipment creates a likelihood of confusion that can be sanctioned.
• Draw a clear distinction, in sales literature, between indicating compatibility with third-party equipment and claiming a common origin.
• Where a formal notice (mise en demeure) or a writ of summons (assignation) is received, examine separately the merits of the alleged faults and the extent of the ban sought.
• Keep a record of the changes made to the product and to its presentation: they determine whether the activity can be continued despite a judgment against the business.