Can you complain publicly about being copied by a competitor?
A few weeks ago, a designer of home décor objects called me, with an email ready to send on her screen. She had just discovered that three shops that stocked her work were also selling vases almost identical to hers, made by a competitor and sold at half the price. Her message was a single sentence: ‘I wish to inform you that company X’s vases are counterfeits of my designs.’ Recipients: the three shops. All she wanted to know was whether she could send it.
I asked her not to click. That email could have got her held liable for disparagement before the copying issue had even been decided. The Cour de cassation has just reiterated this, in a published judgment of 23 September 20261.
Disparagement: a wrong falling within unfair competition
Disparagement consists in casting discredit on the products or services of another business. No specific statute defines it: it falls under the ordinary law of civil liability, and its legal basis is the very general Article 1240 of the French Civil Code.
The Cour de cassation has defined its boundaries. Disclosing information likely to cast discredit on a product marketed by another person constitutes disparagement, even where there is no direct and actual competition between those concerned. It escapes being a wrong only if the information relates to a matter of general interest, rests on a sufficient factual basis and is expressed with a degree of moderation2.
Telling a retailer that the products it buys are counterfeits obviously casts discredit on those products. The general-interest exception rarely applies in a copying dispute between two businesses, which primarily concerns their commercial interests. It is aimed rather at information concerning, for example, public health or safety. Everything therefore turns on the factual basis. And this is where the case law surprises most business owners and designers.
Without a judgment, there is no sufficient factual basis
In the case decided in 2019, a garden furniture manufacturer had sued a competitor for infringement of its Community designs. Its sales agent had immediately informed several retailers that stocked the competitor’s products of this action. The competitor claimed that customers had then cancelled their orders. The infringement action was ultimately dismissed.
The Court of Appeal had found no wrongdoing: in its view, it had not been shown that the information had been given in excessive, untruthful or threatening terms. The Cour de cassation overturned this reasoning. Disclosing to customers an infringement action that had not resulted in a court decision, ‘lacking a sufficient factual basis in that it rested solely on the legal proceedings brought by the rights holder’, amounted to wrongful disparagement.
The principle had already been laid down in 2016, in a case concerning a golf trolley design: ‘disclosing to customers an action that has not resulted in a court decision is wrongful’3.
The logic is simple. A writ of summons expresses only the claim of the party serving it. Until the court has ruled, infringement remains an allegation, and announcing it to one’s distribution network or customers amounts to prejudging the outcome of the case, often with an irreversible effect on the competitor’s sales.
The risk is real. Disparagement exposes its author to damages, and the court may also order publication of its decision. In practice, the competitor targeted often brings a counterclaim in the infringement proceedings. The designer who came forward as the victim then finds themselves on the defensive.
A judgment of 23 September 2026 confirms this for copyright
The facts are more nuanced than in the earlier cases. A fashion designer’s company had been taken over following insolvency proceedings. The acquirer had bought the trade marks consisting of his name, while the designer continued an artistic activity of his own. His lawyer wrote to two of the acquirer’s partners seeking to halt capsule collections whose presentation, in his view, reproduced emblematic elements of his world and suggested a collaboration that did not exist.
The Paris Court of Appeal had held these letters to be legitimate4. The Cour de cassation set aside its decision on this point: ‘in the absence of a court decision finding acts of copyright infringement, the mere fact of informing third parties of a possible infringement of those rights constitutes disparagement of the products alleged to be infringing’5. The judgment, handed down by a section bench, is published in the Bulletin. The case has been remitted to the Paris Court of Appeal, differently constituted.
Two details make the ruling particularly instructive. First, in earlier proceedings, the designer had already obtained two final judgments against the acquirer for infringing his copyright in his recent works. That was not enough: a decision covering the facts reported in the letters was required. Second, the recipients were partners of the acquirer who were themselves exploiting the collections concerned.
The same judgment also rejects the acquirer’s ground of appeal challenging the revocation, for deceptive use, of its rights in the trade marks bearing the designer’s name. Having serious grounds for complaint does not, however, entitle anyone to alert third parties before the court has ruled.
Even a lawyer’s letter can be disparaging
One might think that a letter drafted by a lawyer, cautious in form, is safe from a finding of disparagement. A 2021 judgment shows otherwise. Counsel for an electronic components manufacturer had sent a warning letter to the European distributor of competing products. The letter even stated that no decision had yet confirmed its client’s accusations.
The Court of Appeal found disparagement: the letter presented as established facts the theft of information by former employees and left its recipient no choice but to stop distributing the products. The Cour de cassation upheld this analysis6. Pointing out that no judgment has been given therefore does not prevent accusatory content from being classed as disparagement.
So what should you do if you are copied?
Nothing obliges you to suffer copying in silence. But you must address the right people, in the right order.
First, write to the copier itself. A formal notice sent only to the competitor discloses nothing to third parties. It gives the competitor a chance to stop the acts complained of, to explain itself or to negotiate, and it lays the groundwork for what comes next if nothing changes.
Next (or rather, beforehand), gather evidence. A purchase report drawn up by a judicial officer (commissaire de justice) and then, if necessary, a court-authorised saisie-contrefaçon make it possible to establish the reality and extent of the copying. This file will help stop sales far more reliably than an email sent in anger.
Finally, take legal action. In urgent cases, provisional measures may be sought or summary proceedings brought. Once a decision has found infringement, even in summary proceedings, informing third parties becomes possible, provided that the information remains accurate and measured. If an appeal is still possible, this must be stated.
That leaves the case of the distributor that is itself selling the disputed products, and which may indeed be sued on that basis. Writing to it is not prohibited, but the judgment of 23 September 2026 shows that being the competitor’s partner does not protect the author of the letter. This type of letter must be drafted with great care, and carries a degree of risk.
LAZULI supports designers and businesses that have been copied
LAZULI supports designers, brands and businesses facing copying: analysis of the rights at stake, formal notices, evidence reports and saisie-contrefaçon, infringement and unfair competition actions. The firm also reviews letters and communications intended for third parties before they are sent, so that defending your rights does not backfire on you. It also assists you with any acts of disparagement of which you may be the victim.
Jérémie LEROY-RINGUET, October 2026
- Cour de cassation, Commercial Chamber, 23 September 2026, No. 22-23.833, FS-B ↩︎
- Cour de cassation, Commercial Chamber, 9 January 2019, No. 17-18.350, FS-P+B ↩︎
- Cour de cassation, Commercial Chamber, 20 September 2016, No. 15-10.939 ↩︎
- Paris Court of Appeal, Division 5, Chamber 1, 12 October 2022, RG No. 20/11628 ↩︎
- Cour de cassation, Commercial Chamber, 23 September 2026, cited above, § 14 ↩︎
- Cour de cassation, Commercial Chamber, 27 January 2021, No. 18-21.697, F-D ↩︎
