Trademark infringement and refusal to comply with a court order: when company directors incur personal liability

French Court of Cassation, Commercial Chamber, 7 October 2026, No. 25-14.170, FS-B+R

In a judgment dated 7 October 2026 (FS-B+R), designated for wide publication, the French Court of Cassation clarified the conditions under which the director of a company sued for trademark infringement may incur personal liability, both for participating in an intentional criminal offence and for refusing to comply with a court order requiring the production of documents.

In this case, the owner of a French trademark, who was also the president of a company licensed to use that trademark, had brought, together with that company, two separate sets of proceedings against a company marketing product under the mark without authorization and its managing director.

The first set of proceedings, brought against the company, resulted in a finding of trademark infringement by reproduction in a judgment of the Paris Judicial Court dated 8 February 2022, which became final and no longer subject to appeal. In those proceedings, the case management judge had also ordered the production of accounting documents needed to assess the loss suffered, but that order remained unfulfilled.

The second set of proceedings, brought in parallel against the managing director, sought to establish his personal liability for the infringing acts and the refusal to produce the documents. After their claims were dismissed at first instance and on appeal on the grounds that no fault separable from the director’s duties had been established, the claimants appealed to the Court of Cassation.

The Court of Cassation quashed the decision on both grounds.

An intentional offence personally attributable to the managing director

As a reminder, a company director’s personal liability towards third parties requires a fault separable from their duties, notably intentional misconduct of particular seriousness that is incompatible with the normal exercise of those duties (French Court of Cassation, Commercial Chamber, 20 May 2003, No. 99-17.092). Such liability has previously been established in infringement cases involving the director’s active and personal participation in the acts at issue, or deliberate and persistent conduct despite warnings and legal proceedings (French Court of Cassation, Commercial Chamber, 7 July 2004, No. 02-17.729; French Court of Cassation, Commercial Chamber, 25 January 2005, No. 01-10.740).

However, case law makes clear that an intentional criminal offence constitutes, in itself, a fault separable from a director’s corporate duties (French Court of Cassation, Commercial Chamber, 28 September 2010, No. 09-66.255).

Relying on Article L. 223-22 of the French Commercial Code, the judgment under review confirms that this rule applies to the criminal offence of trademark infringement under Article L. 716-10 of the French Intellectual Property Code.

The civil court must therefore determine whether the acts personally attributed to the managing director satisfy the constituent elements of that intentional offence. If they do, the fault is separable from the director’s duties, without any need to establish its particular seriousness separately.

A finding of infringement against the company is therefore insufficient to establish its director’s liability: an intentional criminal offence must also be shown to be personally attributable to the director. On this point, the Court specifically criticized the appeal judges for failing to undertake that assessment.

Refusal to comply with a court order

In the infringement proceedings, the case management judge had ordered the defendant company to produce several accounting documents needed to assess the loss suffered, an order with which its managing director had refused to comply.

The Court of Cassation held that this refusal constituted intentional misconduct of particular seriousness, incompatible with the normal exercise of corporate duties, and thus amounted to a fault separable from those duties capable of giving rise to the director’s personal liability.

Unlike the infringing acts, in respect of which it criticized the lower courts for failing to assess whether an intentional criminal offence had been committed, the Court held here that the court of appeal’s findings were sufficient to establish a fault separable from the director’s duties, without any need for further examination.

The judgment thus confirms that a director’s conduct in legal proceedings may give rise to personal liability, independently of any participation in the infringing acts, provided that loss causally linked to that misconduct is established.