Unfair Competition and Free Riding

A pharmaceutical laboratory which copies one of his competitor’s product’s packaging for a same market place not only commits unfair competition act but also free riding. As the Paris Court of Appeal said: “this breaks the equality between the various competitors, distorts normal market, causing a disturbance to business”.

After underlining the importance of the user’s information and the need to look for the risk of confusion, the Court reminds that a well-based unfair competition action is valued via evidence arrays. However, the Court of Appeal partially invalided the judgment of first instance which considered that the competitor didn’t commit free riding. Indeed, according to the Paris Court of Appeal: “the appellant, substantially drawing from his competitor’s product’s packaging […] appropriated an individual economic value and the result of research and specific design work, providing a competitive advantage”.

So, free riding is invoked in France even if the two laboratories are competitors on the same market place. Copying a product’s packaging really constitutes unfair competition but it seems useless to consider the free riding theory which is a sanction of taking over others’ reputation without any potentially common market.

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