As a director of a successful enterprise, you realize today that the competitors, the former employees, the subcontractors, the associates etc… dishonestly misappropriating your customers. You believe you are the victim of embezzlement or on the contrary you are unjustly suspected of this offence. Who is going to help you to get out of this mess? Our department of commercial lawyers can help you.
Acts of unfair competition: definition
The commercial chamber of the Court of Cassation by a declaration on October 22, 1985 defined the act of unfair competition as, “the abuse of the voluntary commerce, causing voluntarily or involuntarily, commercial trouble.”
The examples of faults constituting unfair competition are: denigration, confusion, disorganization, and parasitic acts.
The role of counsel is crucial in the litigation of unfair competition. Firstly, it is necessary to determine the correct legislative qualification at the fault of the competitor, in obtaining the necessary evidence for the claims made.
Therefore, the lawyer is also there to characterize the injury inflicted upon their client. Acts of unfair competition lead to decreased revenue, a loss of the customers, or the endangerment of society.
Lastly, it is necessary to demonstrate that the harm suffered by the victim of unfair competition from society was due to the fault committed by the competitor.
What is corruption of the customer according to the law and jurisprudence?
The corruption of the customer can be committed by a former employee, a subcontractor, an associate, an expatriate, or a foreign society.
Jurisprudence offers a large list of examples.
Therefore, by a declaration on November 18, 1997 the commercial chamber of the Court of Cassation called faulty dealing of misappropriation of the customer, when a competitor, “incites a client […]turning them away from the first product bought and towards a competing product with a coupon.”
The capture of clients supposes the demonstration of evidence. By virtue of article 9 of Civil Procedure Code “it is the responsibility of each party to prove, according to the law by using facts, the validity of their claim.” Since then it is the victim of the unfair competition who comes back to show the fault of the competitor. The assistance of a lawyer is necessary to build a strong case to assure the chances of success.
The Court of Appeals of Paris, by declaration on June 18, 2015 n°14/07054 said that, “to be characterized as the corruption of customers requires evidence of misconduct that does not result in a simple transfer of customers from one company to another.” It adds that a company employing former employees of another company who had access to clients’ data at the initial enterprise, “cannot misuse this data for the benefit of a new employer.”
A lawyer in competition law is there to prove the intention of harming the competitor by using confidential information resulting in customer theft. Thus by a declaration on February 24, 2015 the Court of Appeals of Besançon held that, “he used […] information that characterized an act of premeditated disloyalty, revealing the intention to harm his employer as well as performing acts of misappropriation of customers using fraudulent and unfair maneuvers.”
Behavior constituting unfair competition: what solutions?
You are convinced that your company has fallen victim to the acts of unfair competition causing the misappropriation of customers, so what to do? What actions can a lawyer take?
Different actions against unfair competition are feasible.
It is possible to prosecute before criminal courts the perpetrators of customer misappropriation, as it constitutes an abuse of confidence. In this case, as stated by the criminal chamber of the Court of Cassation, by a declaration March 9, 1987 n°84-91.977, “the misappropriation of customers of an enterprise by a former employer, may give rise to a breach of trust if it is accompanied by material elements (cases, files, various documentation, judicial acts), as the intangible nature of the customer opposes the application of incrimination predicted by article 314-1 of penal code.”
Generally, the action of unfair competition is founded upon civil responsibility.
First of all, if it is an employee, and associate, a subcontractor… with whom you are tied to by contract, the action to undertake will find its foundation in the basis in contractual liability. Recall that the employees, by virtue of article 1134 of civil code, hold an obligation to loyalty and fidelity. A ministerial response n°12211, published in the Official Journal of the National Assembly August 24, 1999 stated that, “it is forbidden for the employee to develop, directly or indirectly, on his behalf or that of a third party, any act of competition contrary to the company that employs him throughout the duration of his work contract until its suspension.”
If the perpetrator of the unfair competition is a competitor or any other person having no contractual lines tied to your company, the one could proceed using article 1382 of Civil Code regarding torts.
Various courts are able to receive cases in unfair competition. It could be the Court of commerce in an instance where two parties are traders, High Court, or Industrial Court if the action concerns an employee and an employer.
A lawyer in competition law is there to defend these interests of their client. It is up to him to find the right legal basis, to legally qualify the facts and to show the harm to the client constituted notably by the misappropriation of the customer. In case of emergency, there are ways to stop the problem before the final judgment. PICOVSCHI lawyers have mastered different procedures to solve disputes over unfair competition and can benefit you with their experience.