Gaëlle Bloret-Pucci, Partner in the Intellectual Property Department of BCTG Avocats, and Hervé Bonnard, Professor of Law at the University of Burgundy and honorary member of the Paris Bar, have completely revised the Jurisclasseur (LexisNexis) Criminal Business Law booklet on trademark infringement.
The purpose was to integrate the last legislative reforms and important case law relating to the rules of prosecution applicable to trademark infringement, so as to enable practitioners, as well as students studying industrial property law, to find all the keys to understanding and relevant references in this area of law.
This reference book contains the following information:
- Civil tort and criminal offence of trademark infringement (V. n° 1 to 8): the definition of the material element of the criminal offence of infringement is carried out by reference to the civil infringement of the trademark right (V. n° 10 to 48).
- The criminal offence thus covers reproduction and imitation of a trademark (see nos. 10 to 32), and use of the genuine trademark that infringes the exclusive rights conferred on its owner by the registration (see nos. 33 to 45).
- The ‘generic’ offence of Article L. 716-10, paragraph 1c constitutes an unintentional offence. This is the criminal offence of negligence assessed in concreto (see nos. 50 to 56).
- The other specific offences require intentional fault (see nos. 57 to 63).
- The severity of the repression increases according to the degree of organization of the delinquent activity (see n° 64 to 72).
- The advantage of public action lies in the increased access to evidence through the investigative powers of the public prosecutor and/or the examining magistrate (see n° 73 to 87).
- The civil action makes it possible to obtain the cessation of acts of trademark infringement and compensation for the damage suffered by the owner (see nos. 89 to 99).
- The referral to the criminal courts does not prevent a referral to the civil courts within summary proceedings or on request in order to obtain provisional measures.
- The criminal court does not have jurisdiction to declare the invalidity or revocation of a trademark. In this case, the judge will declare the offence null and void (see n° 100 to 106).
- When invoked before a civil judge, trademark infringement tends to evolve towards an objective liability where fault is assessed in abstracto (see n° 107 to 146).
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