In the first part of his article entitled “Fashion and luxury: where does counterfeiting begin? By Pierre Hoffman, Attorney at the Paris Court (1/2)”, Pierre Hoffman explained to us the protection of creations for professionals in the sector through law with its rules and practical applications. In this second part, we look back at the judge’s assessment criteria.
By Pierre Hoffman, lawyer at the Paris Court
The criteria for assessing counterfeiting used by the judge differ from case to case. Explanations.
In copyright law
Counterfeiting is the total or partial reproduction of a work of the mind.
The judge then makes a detailed comparison between the two disputed creations.
Counterfeiting is assessed by similarities and not differences.
We focus on the original characteristics of the work because if only the ordinary elements of the work have been copied, there is no counterfeiting.
The judge will also take into account the importance of the loan in relation to the work as a whole.
To characterize counterfeiting it should be noted that similarities are dominant over differences.
In design matters
Counterfeiting is also understood as the total or partial reproduction of an earlier design.
The assessment is then made more on the “overall visual impression” for the informed observer (who is a more vigilant observer than the average consumer but not an expert either).
In terms of trademarks
The Intellectual Property Code indicates that counterfeiting occurs in the case of trademark imitation if there is a risk of confusion in the mind of the public.
The judges’ assessment will be based on the visual, phonetic and conceptual similarities of the signs, the notoriety of the copied mark and the similarities between the goods and services covered by the two marks.
The objective is to enable the public to be able to distinguish the origin of a product, so the criterion of likelihood of confusion is essential at the heart of the comparison.
