The gathering of evidence is fundamental in matters of unfair competition and the intervention of the private investigator makes perfect sense. The SENEX agency, which has developed recognized know-how in the field, invites you to expose yourself to the major challenges of competitive disloyalty and the added value of the investigator.
Legal definition of unfair competition
The concept of unfair competition is sometimes distorted and it is important to remember that it is distinct from counterfeiting. Jurisprudence defines unfair competition as any act which “would tend to harm the industry of others” by means contrary to good business practice. (Paris Court of Appeal, judgment of April 8, 1842).
These acts are reprehensible because they are unfair and any person, natural or legal, can obtain compensation for the damage suffered on the basis of the law of civil liability (arts. 1240 and 1241 of the civil code).
This is based on the triptych: fault, damage and causal link between fault and damage. It is essential to prove these three notions successively. The role of the private investigator is mainly to collect evidence of the opponent’s fault.
In the area of fault, case law has grouped unfair acts into four major families: confusion, denigration, disorganization and parasitism.
Unfair competition action
The action for unfair competition begins with the collection of evidence necessary for the success of its claim. Once collected, the time comes for the actual legal action with the taking of any provisional measures then the seizure of the trial judge.
On the nature of the adversary will depend the court to seize, and on its place of establishment will depend the geographically competent court.
In the particular case of a former employee bound by a non-competition clause, an industrial tribunal action aimed at reimbursing the clause will precede a commercial action aimed at compensating the victim company for the damage caused.
Fixing of proof
As mentioned above, gathering evidence is the first step in dealing with unfair practices. This collection must be done before any assignment and in the greatest secrecy, only a very limited number of employees must be in confidence.
Indeed, if he is warned of a legal action in progress or to come, the perpetrator of the disloyal acts may cease his acts, destroy evidence or be very suspicious.
Evidence in unfair competition can be difficult to establish and it is therefore essential to preserve the element of surprise. This evidence is usually collected by a private detective agency.
With a wealth of experience in this area, SENEX Detective puts its know-how at the service of its customers and their advisers.
Evidence of unfair acts is collected by means of surveillance and surveillance, interviews of different actors, telephone calls … Each case is specific and it is necessary to adapt to its particularities.
Examples of unfair practices
Insofar as commercial acts and technological means are constantly evolving, the relevant case law is constantly adapting to new unfair practices.
Also, if major principles have been established by case law over time, each case is specific and casuistry is essential in the analysis of a case of unfair competition.
We invite you to visit the pages dedicated to examples of unfair competition to get an opinion on the subject.
If you have any doubts about your case, we invite you to contact the SENEX Detective agency which can, if necessary, refer you to a law firm specialized in the field.
Difference between counterfeiting and unfair competition
As stated above, unfair competition is based on the law of civil liability, while the concept of counterfeiting is based on the law of intellectual property (industrial or literary and artistic).
Counterfeiting and unfair competition are therefore very different because their intellectual and legal foundations are therefore very distinct, as are the legal proceedings associated with them.
However, it should be noted that in infringement proceedings, in the alternative, it is possible to invoke the concept of unfair competition in the event that the materiality of an intellectual property right is questionable.