Infringement: how much can you really claim?

My client arrived at the firm with a binder full of screenshots. A jewellery designer, six years of work, a style recognisable among a thousand. For three months, copies of her designs had been circulating on a major marketplace, sold at a quarter of the price. Her first question was not about the principle of the infringement, which quite rightly seemed obvious to her, but about the amount: “How much can I claim? In the United States, there are multi-million awards, aren’t there?”

Almost every client of mine who is the victim of infringement asks me this question. The answer under French law is both more modest and more subtle than the picture painted by American courtroom dramas. It comes down to one sentence: you can claim what you can prove. Here is how.

The jackpot myth

Let us first dispel a misunderstanding: officially, there are no punitive damages in France. The judge does not order the infringer to pay “as an example”. He compensates the loss — the whole loss and nothing but the loss. But that loss still has to be demonstrated. A flagrant infringement supported by an empty file leads to disappointing compensation. Conversely, a methodically built case can lead to a substantial award, sometimes far higher than what the infringer thought it was risking.

Three heads of damage listed by statute

The French Intellectual Property Code (transposing European directives) requires the judge to follow a method for calculating the loss. For trade marks, it is Article L. 716-4-10; for copyright, Article L. 331-1-3, in identical wording, and the same provision exists for patent and design infringement, among others.

To set the damages, the court takes into consideration, “separately”:

• The negative economic consequences of the infringement, including the lost profits and the losses suffered by the injured party
• The moral prejudice caused to the rightholder
• The profits made by the infringer, including savings on intellectual, material and promotional investments

The word “separately” matters: the judge must examine each head of damage individually, instead of awarding a rough global sum. This is an opportunity for the victim — provided the case is prepared head by head.

First head: your losses

Lost profits correspond to the sales the infringement caused you to lose. Not all of the infringer’s sales are sales you would have made: the courts apply a diversion rate, which depends on prices, distribution channels and customer base. Added to this are the losses suffered: price reductions you had to grant, depreciation of your stock, investments rendered useless. Useful evidence includes, in particular, accounting records, a certificate from your chartered accountant, an order history, letters from worried retailers. In my designer’s case, two distributors had suspended their orders citing the presence of copies: those emails carried great weight.

Second head: moral prejudice

This is the head most often neglected, because it is the most delicate to quantify. The trivialisation of an exclusive creation, damage to image where the copy is of poor quality, harm to the distinctive character of the trade mark: all of this is compensable, even in the absence of economic loss. But it must genuinely be argued, with specific evidence (reviews from customers disappointed by the copy, market positioning, the style’s track record, unhappy customers who thought they were buying the original product).

Third head: the infringer’s profits

This is a distinctive feature of the field: the judge takes into account the profits made by the infringer, including its savings on investment. The infringer spent nothing on creation, development or advertising; that saving enters into the calculation. How do you find out its figures? The right of information, provided for, in copyright and trade mark law, by Articles L. 331-1-2 and L. 716-4-9 of the Intellectual Property Code, allows the judge to order — if need be under a periodic penalty payment — the production of accounting documents and the identification of distribution networks. In my designer’s case, this mechanism tipped the balance of power: the quantities actually sold were far higher than our estimates.

A worked example

Take a simplified example. An infringer sold 10,000 units of a copied piece of jewellery at 15 euros, while the original sells for 60 euros. With a diversion rate of 20%, the lost profits relate to 2,000 (two thousand) lost sales, valued at the victim’s margin and not at its turnover. To this are added the moral prejudice, assessed in particular in light of the trivialisation of the design, and a share of the infringer’s profits, including its savings on creation and advertising. Three separate lines of calculation, three sets of arguments, three sets of exhibits.

And let us not forget the rest: the court can order injunctions under a periodic penalty payment, order the recall and destruction of the infringing products and — a measure infringers often dread — publication of the decision at their expense. The costs of the proceedings (lawyers’ fees) are, moreover, the subject of an award under Article 700 of the Code of Civil Procedure, in addition to court costs (registry or judicial officer fees).

The alternative: the lump sum

The law offers an alternative to this complex calculation, at the request of the victim of the infringement: a lump sum, which must be higher than the amount of the royalties that would have been due had the infringer applied for a licence. This lump sum is useful where the head-by-head demonstration is too difficult, for instance where the infringer has organised its documentary insolvency. A detail that matters: the lump sum does not exclude compensation for moral prejudice.

This provision leads some to say that French judges thereby have a way of awarding punitive damages, without the law actually saying so. In practice, judges sometimes apply a coefficient of 1.5 or 2 to the amount of, for example, the software licences that should have been invoiced, so that infringers do not get away with paying only the price that would have been due. The lump-sum alternative can therefore represent a real advantage for the victims of infringing acts.

And when the copy is sold on a marketplace?

My designer’s case has become the ordinary case: the infringer sells online, sometimes from abroad, behind a pseudonym. Two practical consequences follow. First, the platform itself can be contacted: the major marketplaces have procedures for reporting infringements of intellectual property rights, reinforced by the European Digital Services Act, and the swift removal of listings limits the damage. Second, identifying the seller involves judicial proceedings against the platform: it holds the seller’s account data, the volumes and the financial flows. An anonymous infringer is not an untraceable one.

A case is built early

The argument on compensation is played out well before the trial hearing. The point is to build a complete file: screenshots, invoices for purchases of the copies, exchanges with the platform. Have reports drawn up by a judicial officer and certificates by your chartered accountant. The infringement seizure (saisie-contrefaçon) makes it possible to secure evidence of the infringement and of its scale at the infringer’s own premises. Finally, quantify realistically: a fanciful claim discredits the whole file; a substantiated claim inspires the court’s confidence.

A final word on timing: the faster the reaction, the easier the loss is to demonstrate. Copies that circulate for two years create entrenched situations, evidence that evaporates and distributors who get used to them. An early cease-and-desist letter, followed if necessary by court action, limits the damage and lends credibility to the claim for compensation.

So, how much can you claim? The only serious answer is “whatever your file allows me to demonstrate”. The three-head calculation method favours victims who document their loss; the lump-sum method favours those who habitually grant licences over their products.

LAZULI assists designers, brands and businesses that are victims of infringement: evidentiary strategy, infringement seizure, quantification of the loss, court action and negotiation.

The firm offers consultations at a defined cost, announced in advance, for an initial, practical analysis of your situation.

Jérémie LEROY-RINGUET, July 2026