Your former employee becomes your competitor… and registers “your” trademark

One Monday morning, the head of an industrial SME calls me. His former sales manager, who had left “on good terms” eight months earlier, has just launched a competing company. Fair enough. But while preparing to register the name of its new product line, discussed internally for months, his team makes a discovery: the name has already been filed with the INPI. By the former employee, three weeks after his departure.

I come across this scenario regularly, with variations: the ousted partner, the distributor, the service provider. The good news is that the law offers effective weapons. The less good news is that using them requires method — and that much of it could often have been avoided.

Competition from a former employee is, in principle, lawful

Setting up a business that competes with one’s former employer is not a fault. Freedom of trade and industry protects the former employee or former partner who strikes out on their own, enters the same market and canvasses the same customers, as long as no valid non-compete clause prevents them from doing so. Soliciting the former employer’s customers is not wrongful in itself: customers are free to choose their suppliers.

And even where a non-compete clause exists, it must still be valid: limited in time and territory, proportionate to the company’s legitimate interests and, in the case of an employee, backed by financial compensation. Many hastily signed clauses do not survive scrutiny. In their absence, or if they fall, the ordinary rules of law remain: competition is free, but it must remain fair.

What tips over into fault

Everything changes when unfair practices come into play. On the basis of Article 1240 of the French Civil Code, the courts sanction in particular: the misappropriation of customer files or company data (leaving with the in-house file is a fault, and sometimes a criminal offence), mass poaching of staff that disrupts the former employer, the creation of a likelihood of confusion (similar name, logo or presentation), and disparagement. The difficulty is rarely legal: it is evidentiary. Bailiff’s reports, work email accounts, witness statements and the chronology of departures make all the difference.

The fraudulent trademark filing: fraud corrupts everything

Then comes the harshest blow: the filing, by the former employee or former partner, of the name you were using or were about to launch. Under French law, ownership of a trademark is acquired through registration; the first to file becomes, in principle, the holder of the rights (“first to file”). But trademark law does not protect cheats, and the French Intellectual Property Code offers two complementary weapons.

• The ownership claim action (Article L. 712-6 of the IP Code): where registration was applied for in fraud of a third party’s rights or in breach of a statutory or contractual obligation, the victim may claim ownership of the trademark in court. Title is transferred to them, together with its filing date: you recover the trademark and its seniority,
• The invalidity action for bad-faith filing (Article L. 711-2, 11° of the IP Code): a trademark filed in bad faith is declared invalid, and the title disappears.

The Cour de cassation reiterated this again this year, in a ruling that is significant for other reasons as well¹: bad faith is assessed globally, in light of all the circumstances of the case, including those subsequent to the filing.

The former employee who files the name of a project he came to know from the inside typically ticks every box: knowledge of the project, a tight chronology, an intention to block his former employer or to monetise the sign. And bad faith is blatant when the unscrupulous filer sends a formal notice to his former employer demanding that he stop using the sign…

As for time limits, the ownership claim is time-barred five years from publication of the application for registration, except where the filer acted in bad faith. The invalidity action, for its part, is not subject to any limitation period². Beware of strategy, however: the two actions do not pursue the same ends, and an ownership claim raised for the first time on appeal is inadmissible. The choice is made at the stage of the writ of summons.

How is fraud proven? By a body of converging evidence. In the case decided in January 2026, which pitted the owner of the “Napapijri” trademarks against the filer of “Geographical Norway” trademarks, the Cour de cassation censured the lower court for having dismissed, one by one, items of evidence it should have examined together: the previous proceedings between the parties, the filer’s past conduct, the use made of the signs after the filing. Transposed to our scenario: the minutes of internal meetings on the product-line project, the former employee’s position in the organisation chart, the proximity between his departure and the filing, his emails from that period — all of this forms a whole that the court must assess globally.

Claim ownership or seek invalidity?

Claiming ownership means recovering the title with its filing date: this is the obvious route if you intend to use the trademark, because it retains its seniority against third parties. Seeking invalidity means making the title disappear: useful if the sign no longer interests you but its registration is blocking you, or if you had filed the day before the fraudulent filing. The decision is as much commercial as it is legal.

Trade secrets, the other battleground

If the former employee left with confidential information (prices, processes, files), trade secret protection can be added to the legal arsenal. Article L. 151-1 of the French Commercial Code protects any information that is not generally known, that has commercial value because it is secret, and that is subject to reasonable protection measures — for example, a confidentiality clause in the employment contract, restricted access, identification of sensitive documents, etc. Without protection measures, protection cannot be secured in court.

The right reflexes, before and after

• File the trademark as soon as the project takes shape: the filing creates the right — the project alone protects nothing
• Frame sensitive departures: confidentiality, return of data, written reminder of obligations
• React quickly to a toxic departure: reports drawn up by judicial officers (commissaires de justice), preservation of evidence, targeted formal notice, then an ownership claim or invalidity action

In my client’s case, the trademark was recovered through an ownership claim action, and the canvassing built on the in-house customer file was compensated on the ground of unfair competition.

LAZULI assists companies facing a sensitive departure or a fraudulent filing: risk audit, trademark filing and watching, formal notices, ownership claim, invalidity and unfair competition actions.

The firm offers consultations at a set cost, announced in advance.

Jérémie LEROY-RINGUET, July 2026

1. Cass. com., 28 January 2026, No. 24-14.760, published in the Bulletin ↩︎
2. Article L. 716-2-6 of the IP Code, resulting from the PACTE Act of 22 May 2019 and the ruling cited above ↩︎