Clarifying the relationship between infringement actions and actions for parasitism or unfair competition
In this case, Officine Panerai, successor in title to Richemont International, has marketed since 1938 an iconic watch called the “Radiomir”, distributed in France by Cartier. From 2020, Tism marketed a watch called the “Augarde”.
According to Officine Panerai, the “Augarde” watch reproduced certain features of the “Radiomir” watch. Cartier sued Tism for parasitism, while Officine Panerai brought proceedings at first instance for infringement of its French trade mark No. 4366443 and its European Union trade mark No. 017902899. However, in a judgment of 18 March 2022, the tribunal judiciaire de Paris declared those trade marks invalid.
On appeal, Officine Panerai therefore changed the legal basis of its claim, relying for the first time on acts of parasitism in order to obtain a ban on the marketing of the “Augarde” watch and compensation for the loss resulting from that marketing.
In this decision of 18 March 2026, the Cour de cassation (1) holds that the parasitism claim raised for the first time on appeal is admissible, then reiterates that (2) a finding of parasitism does not depend on the existence of exclusive rights, before stressing that (3) such an action may be brought even where there is no direct competition between the goods or services.
1. Admissibility of a parasitism claim raised for the first time on appeal
Under Articles 564 and 565 of the French Code of Civil Procedure, a claim is not new on appeal where it seeks the same ends as the claim made at first instance, even if its legal basis is different.
The Cour de cassation states that henceforth “where they are based on the same facts, an infringement action and an action for unfair competition or based on parasitism seek the same ends, namely a ban on the manufacture and marketing of a product or service and compensation for the loss suffered as a result of that marketing”.
Consequently, “a party which brought an infringement action at first instance that was dismissed for lack of an exclusive right may bring, for the first time on appeal, a claim for unfair competition or based on parasitism, where those claims are based on the same facts”.
A party whose infringement action failed at first instance, in particular because its trade marks were declared invalid, may therefore rely on parasitism on appeal.
According to the Cour de cassation, the cour d’appel de Paris could not therefore treat this claim as new: the parasitism action was admissible.
2. A parasitism action does not depend on the existence of exclusive rights
The cour d’appel de Paris dismissed the parasitism action on the ground that there were no exclusive rights in the features of the watches at issue. Parasitism, however, sanctions the act of unduly taking advantage of another’s efforts and reputation, irrespective of the existence of an exclusive right.
By relying solely on this criterion, despite the similarities found and the economic value of the product, the cour d’appel de Paris adopted irrelevant reasoning. The Cour de cassation therefore censures this point for lack of legal basis.
3. Parasitism may be established even in the absence of direct competition
In rejecting the parasitism claim brought by Cartier, the cour d’appel de Paris also relied on the absence of competition between the products, owing to their difference in price (EUR 149 vs EUR 5,000), customer base and market positioning.
The Cour de cassation points out that this criterion is irrelevant, since parasitism may be established even in the absence of direct competition. By relying solely on this criterion, the cour d’appel de Paris failed to give its decision a legal basis.
The Cour de cassation accordingly quashes and annuls the judgment of the cour d’appel de Paris insofar as it declared inadmissible the claims brought by Officine Panerai on the basis of parasitism and dismissed Cartier’s parasitism claims. The case is remitted to the cour d’appel de Versailles.
This eagerly awaited decision clarifies the relationship between infringement actions and parasitism actions where exclusive rights lapse during the proceedings, thereby offering right holders a strategic alternative when an infringement action brought at first instance runs into difficulties.
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To go further and anticipate the issues arising from the interplay between infringement and parasitism actions, we can help you define your litigation strategy, optimise the legal grounds of your claims during proceedings and secure your litigation, so that your case adapts effectively to developments in case law.