Remedies are available regardless of whether the infringement is willful. No punitive damages will be awarded, even if the infringement is willful.
French law prohibits both direct infringement and contributory infringement.
Trademark infringement actions may be brought before specialized courts (Paris courts having exclusive jurisdiction for EUTMs), usually after having gathered evidence via an infringement seizure (saisie-contrefaçon), by way of an action on the merits and a summary action, in order to obtain an interlocutory injunction.
An injunction against the further manufacture, import, offer, sale, use or storage of the work can be ordered with immediate enforceability and subject to penalties.
Since 2020, the National Institute of Industrial Property (INPI) has exclusive jurisdiction for trademarks cancellation and revocation actions, when such actions are brought as a principal claim and are based on an absolute ground for nullity, or a relative ground for nullity related to the existence of certain prior rights, or a ground for revocation of any kind. French courts remain competent for other types of actions.
Since 2019, such actions generally need to be brought within 5 years of the acts concerned, provided such action is not subject to any other statutes of limitations (except for well-known trademarks).
In determining the amount of damages to be awarded (compensatory – not punitive), French courts take into
- The negative or detrimental economic consequences of infringement, including lost gains and losses suffered by the rights holder
- The moral harm suffered by the rights holder and
- The profits earned by the infringer, including intellectual, tangible and promotional investments saved or not incurred by the infringer.
As an alternative and on request by the trademark owner, the court can set the damages as a lump sum. The lump sum must be greater than the royalties that would have been owed if the infringer had sought a license. This amount is not exclusive of compensation for moral harm caused to the trademark owner.
Remedies also include, notably, the recall, destruction or confiscation of the infringing products and the publication of the judgment.
Legal costs and attorneys' fees can be recovered (at the discretion of the judge).
Before the criminal courts, an infringer faces a fine of up to EUR300,000 (or EUR750,000 in certain circumstances) and imprisonment for up to 3 years (7 years in certain circumstances).
Trademarks can be filed with French Customs to prevent importation of infringing goods, provided those goods originate from outside the European free market.