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Defense of rights

As a general rule, an Intellectual Property right grants its holder an exclusive operating monopoly (manufacturing, marketing) for the object covered by this right.

This is an advantage that the holder can put to use in order to obtain a return on the investments made for the creation, development, placement on the market and/or promotion of the protected object.

Of course, this return on investment is compromised if the protected object is infringed, situation in which the infringer diverts the fruit of these investments to his own profit and often engages in unfair actions.

Faced with this type of situation, the holder has effective legal resources, both on a civil and a penal level.

Nevertheless, before initiating a lawsuit, the holder should analyze the situation objectively in order to determine the most appropriate solution, this analysis concerning in particular the:

  • Validity of his Industrial Property right,
  • Scope of his right and possibly its development,
  • Possibility of obtaining evidence of the infringement of his rights,
  • Possible qualifications of these infringements,
  • Assessment of the damages caused by these infringements.

In parallel, the holder must also perform an economic study in order to determine his position in the market for the protected object in relation to that of the infringer.

The results of this analysis and this study will make it possible to determine whether there are grounds to attempt a negotiation for an amiable settlement or to initiate a lawsuit (civil or penal), with the understanding that in this alternative, the first approach is likely to handicap the implementation of the second. In the case where the first path is preferable to the second, it is advisable to propose several compromises which may, for example, include a partial or total transfer, a spin-off, licensing or an industrial or commercial partnership.

In all cases, before initiating a lawsuit, the holder must gather as much evidence as possible of the material nature of the undermining of his Industrial Property right.

In case of infringement, the "confiscation of works infringing copyright" process by which evidence can be seized at the alleged infringer’s premises, constitutes a special means for constituting evidence. However, it requires that the alleged infringer be brought before the competent civil court within 20 business days (or 31 civil days, whichever is longer).

Following the summons, an exchange of adversarial pleadings takes place in which the respondent usually contests the validity of the Industrial Property rights cited, the material nature of the infringement, the evidence filed as well as the validity of the confiscation. The claimant must then respond to all of these arguments.

At the end of this exchange of pleadings, the court orders the closing of the discussions and sets a date for a hearing during which the attorneys plead one after the other, the defence attorney pleading last. The judgment is then handed down after a deliberation of approximately one month.

The judgment can be appealed (suspensive except in case of provisional enforcement). The appeal requires the participation of a solicitor. The ruling handed down by the Court of Appeal may be the subject of an appeal in cassation.

The Cabinet Moutard can help you resolve your infringement problems, in particular by:

  • defining a strategy adapted to the infringers,
  • organizing "saisies contrefaçons",
  • participating in the various phases of the trial (in particular in drafting pleadings) in collaboration with an attorney specialized in Industrial Property.
   
   
Cabinet Moutard | 35 rue de la Paroisse, 78000 Versailles | tel +33.1.30.83.79.79 | fax +33.1.30.83.79.78
Legal notes