A claim for unfair competition or free-riding (parasitisme) is admissible for the first time on appeal where it rests on the same facts as an infringement action dismissed for want of an exclusive right. The commercial chamber departs from its earlier position. Those two actions now pursue the same ends within the meaning of Article 565 of the French Code of Civil Procedure. The solution covers claims based on identical facts.
Key points
- An infringement action and an action for unfair competition or free-riding pursue the same ends where they rest on the same facts: prohibiting the marketing of the product and compensating for the damage suffered.
- A company whose infringement action has been dismissed for want of an exclusive right may raise, for the first time on appeal, a claim for unfair competition or free-riding based on the same facts.
- The absence of an exclusive right over the copied features is not, in itself, sufficient to rule out free-riding.
- Free-riding may be found outside any competitive relationship: a different customer base and a distinct market segment do not exclude it.
- Bringing infringement and unfair competition claims simultaneously, as principal claims, still requires distinct facts.
From a dismissed infringement action to free-riding raised on appeal
The commercial chamber effects a reversal (Com., 18 March 2026, No. 24-17.016): a free-riding claim resting on the same facts as the dismissed infringement action is admissible for the first time on appeal. A watch manufacturer has marketed a historic watch model since 1938, distribution of which in France is entrusted to another company. A more recently formed watchmaking company has marketed since 2020 a watch reproducing a French design registered the same year by an individual.
The manufacturer brought infringement proceedings in respect of two trade marks registered in 2017 and 2018 designating, among other things, watches. The company responsible for distribution brought, for its part, a free-riding claim. The tribunal judiciaire (first-instance civil court) declared both trade marks invalid, dismissed the infringement claim and dismissed all the claims; the invalidation has become final.
Before the court of appeal (CA Paris, 5 June 2024, No. 22/06786), the manufacturer raised claims based on free-riding for the first time. The court of appeal declared them inadmissible as new claims and dismissed those of the distributing company. The commercial chamber quashes the decision in part: it holds that the two actions pursue the same aim where they rest on the same facts (free translation).
It therefore appears necessary to hold from now on that, where they rest on the same facts, an infringement action and an action for unfair competition or based on free-riding pursue the same ends, namely the prohibition of the manufacture and marketing of a product or a service and compensation for the damage suffered as a result of that marketing.
The quashing also extends to the dismissal of the distributing company's free-riding claims, as well as to the order made in respect of the closure of a social media account and the removal of posts. The case is remitted to the Versailles court of appeal, which will reconsider the admissibility and the merits of the claims based on free-riding.
What does the admissibility of unfair competition on appeal change?
A company whose industrial property right is invalidated may fall back on unfair competition or free-riding as early as the appeal stage, provided it relies on the same facts. Until this decision, such a claim was rejected as new: fault and the infringement of an exclusive right were deemed to pursue different aims. The consequence was harsh for a claimant whose trade mark fell during the proceedings.
The test is now factual. The appeal judge compares the facts alleged in support of the two claims. Where the claimant complains of the same acts of reproduction and marketing, the claim based on fault is not new. Both actions indeed seek the prohibition of the marketing of the product and compensation for the damage arising from that marketing. Consistency in the written submissions takes on direct practical importance here.
Admissibility does not mean success. The claimant must still establish an individualised economic value, the fruit of know-how or investment, and then show that the other operator placed itself in its wake in order to take undue advantage of it. The decision under review does not settle the existence of free-riding in this case: it censures the reasoning followed and leaves the question entirely open for the court to which the case is remitted.
Free-riding without an exclusive right or a competitive relationship
Two grounds are held to be inadequate to rule out free-riding: the absence of an exclusive right over the copied features and the difference in customer base between the products. The commercial chamber restates the definition of economic free-riding.
economic free-riding is a form of disloyalty, constituting a fault, which consists, for an economic operator, in placing itself in the wake of another in order to take undue advantage of its efforts, its know-how, the reputation it has acquired or the investments it has made
The court of appeal had found that the historic watch constituted an individualised economic value, the fruit of know-how and investment. It had nevertheless ruled out free-riding, noting that the common features were not covered by any exclusive right, and then that the two products were aimed at distinct publics and distinct market segments. Both sets of reasoning are censured for insufficient legal basis.
Two established points are confirmed by the decision under review. Unfair competition remains available to a party who cannot rely on any exclusive right, including on facts that are materially identical to those of an infringement action dismissed for want of an exclusive right. Bringing infringement and unfair competition claims simultaneously, as principal claims, by contrast requires distinct facts, a rule which the decision links in particular to a decision it cites (Ch. mixte, 12 May 2025, No. 22-20.739).
What steps should be taken where an unprotected product is copied?
Evidence of free-riding is prepared upstream, by documenting the economic value claimed and the acts of appropriation complained of. A company that considers itself plundered will usefully gather, before taking action, the material establishing how long the product has existed, its know-how, its promotional spending and the reputation acquired among the relevant public. Mere similarity between the products does not amount to fault.
The choice of legal bases deserves to be settled from the first instance. Relying on unfair competition in the alternative, alongside infringement, avoids depending on a question of admissibility. Where both actions are brought simultaneously as principal claims, the facts relied on in support of the disloyalty claim must be distinct from those relied on in support of the infringement claim.
On the defendant's side, the argument that the claim is new on appeal loses its force where the facts are the same. The debate shifts to the merits: the reality of the economic value relied on, the existence of know-how and investment, and the effort saved. Differences in range, price or customer base remain matters for debate, but they are no longer sufficient to secure dismissal.
Checks before bringing an infringement action
- Check the strength of the right relied on, trade mark or design, before the writ of summons (assignation): its invalidation deprives the infringement action of any basis.
- Gather in advance the dated documents establishing know-how, promotional investment and the product's reputation.
- Rely on unfair competition or free-riding in the alternative from the first instance, and identify distinct facts where those claims are brought simultaneously with infringement.
- Describe precisely the acts of appropriation complained of, beyond mere visual similarity between the products.
- Assess the risk attached to content removal requests addressed to platforms before any court decision.
Frequently Asked Questions
I lost my infringement claim at first instance: can I still rely on free-riding?
Yes, if the new claim rests on the same facts and the infringement action was dismissed for want of an exclusive right, for example after the trade mark was invalidated. The commercial chamber so held on 18 March 2026: both actions pursue the same ends, so the claim is not new on appeal. Admissibility does not prejudge success, since fault still has to be established.
Does the invalidation of my trade mark bar any action against a party copying my product?
No. Invalidation deprives the infringement action of its basis, but an action for unfair competition or free-riding remains available to a party holding no exclusive right. It may rest on facts materially identical to those relied on in the dismissed infringement claim. Wrongful behaviour, an individualised economic value and the fact that the other operator placed itself in your wake must then be established.
Can a product sold far more cheaply than a luxury item be held to be free-riding?
Yes: a difference in price and customer base is not enough to rule out free-riding. In its decision of 18 March 2026, the commercial chamber held that reasoning based on a different target public and a distinct market segment was inadequate, because free-riding may be established outside any competitive relationship. The court must examine whether the operator placed itself in the other's wake to profit from its efforts.
How do you prove that a competitor placed itself in your wake?
The demonstration rests on two sets of elements. First, the economic value claimed: how long the product has existed, the know-how deployed, the amounts invested in development and communication, and the reputation acquired among the relevant public. Second, the conduct complained of: reproduction of identifying features, communication referring to your product, and the effort saved by the other operator. Dated documents, invoices and brand image studies usually carry more weight than general assertions.
What is the risk for a business that has a competitor's posts removed before any court decision?
It acts at its own risk. In principle, a party that obtains the removal of content from a platform by relying on rights later held not to exist may incur liability and have to compensate the damage caused, notably the loss of commercial visibility. A reasoned, proportionate and documented notification limits that risk. A prohibition obtained from a court offers security that unilateral action does not.