Infringement, Unfair Competition or Parasitism: Admissibility of Claims Raised for the First Time on Appeal

Cass. com., March 18, 2026, No. 24-17.016

The Commercial Chamber of the French Supreme Court (Cour de cassation) has consistently held that an action for unfair competition, which requires fault, and an action for infringement, which concerns the violation of an exclusive right, arise from different causes and do not pursue the same purpose. In the decision under review, the Cour de cassation adds a further building block to the body of case law governing actions for infringement and for unfair competition or parasitism.

In this case, the Swiss company Richemont International, as successor in interest to Officine Panerai, the owner of figurative trademarks reproducing a watch dial, had sued Tism for trademark infringement, alleging that since 2020 it had been marketing a similar model that had been registered as a design in France. Cartier, the French distributor of the Swiss watch, brought its own action on the basis of parasitism. The two claimant companies also sought a declaration of invalidity of the French design.

At first instance, the court invalidated the trademarks relied on by the claimants for lack of distinctive character and dismissed all of their claims.

On appeal, the judgment was upheld, except insofar as it had rejected the claim for invalidity of the watch design, which was found to lack individual character. The Court of Appeal also held inadmissible the parasitism claim raised for the first time on appeal by the Swiss company, which accused the defendant of promoting and marketing a fashion watch that traded on the reputation of its own watch.

The Swiss company and its French distributor brought an appeal before the Cour de cassation.

The first ground of appeal concerned the admissibility of the claims based on unfair competition and parasitism raised on appeal. The Swiss company challenged the finding of inadmissibility made against it by the Court of Appeal, which had held that its parasitism claim was new on appeal, whereas, in its view, that claim pursued the same purpose as the infringement claims it had brought at first instance.

The Swiss company argued that, having been dismissed at first instance on its infringement action following the invalidation of its trademarks, it was entitled to invoke parasitism before the Court of Appeal in order to obtain the same remedy against the near-slavish copying of its watch, since that action – like the trademark infringement action – sought to enjoin Tism from marketing its watch and to have it ordered to compensate the resulting harm.

The Cour de cassation recalled its settled case law on the admissibility of actions for infringement and for unfair competition or parasitism, namely (i) the prohibition on acting simultaneously, for the same facts, on the basis of infringement, on the one hand, and unfair competition or parasitism, on the other, and (ii) the possibility of bringing an unfair competition or parasitism claim based on facts materially identical to those alleged in support of an infringement action, provided that the latter is dismissed for failure to establish an exclusive right.

The Court upheld the ground of appeal and held that it must now be considered that, where they rest on the same facts, an action for infringement and an action for unfair competition or parasitism pursue the same purpose, namely prohibiting the manufacture and marketing of a product or service and compensating the harm suffered as a result of that marketing. Accordingly, a party that has brought, at first instance, an infringement action dismissed for lack of an exclusive right may, for the first time on appeal, raise a claim for unfair competition or parasitism, where those claims rest on the same facts.

The remaining grounds concerned the merits of the parasitism claim. The Court also quashed the judgment insofar as it had rejected that claim, finding that the reasons given by the Court of Appeal were inadequate to rule out parasitism, since an action for parasitism may be pursued in the absence of any competitive relationship.