In a recent decision, the Commercial Chamber of the Cour de Cassation (French Supreme Court) has qualified the conditions for the application of disparagement by incorporating the right to freedom of expression in its reasoning.
This case-law development is not neutral for economic players likely to be confronted with situations of disparagement in the conduct of their business operations, particularly in case of unfair competition disputes.
This decision provides an opportunity to revisit the notion of disparagement and its application by French courts in recent years.
A patent owner who sends to distributors of a patented product a letter warning them that they may be liable for patent infringement if they continue marketing such product is guilty of unfair competition by disparagement.
These are the findings of a recent decision issued by the Cour de Cassation (French Supreme Court) in a case where the company that owned the patents and sent the letter claimed that it did so to enforce its intellectual property rights.
This decision provides the opportunity to recall the concept of disparagement and the conditions in which disparagement can be established.
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