Industrial Property Law

Lost profit refers to the profits that the right holder would have derived from the infringer's acts of exploitation if he had carried them out himself . Calculating the lost profit involves assessing the infringing mass, the sales implemented by the infringer, and establishing what, within the infringing mass, corresponds to the sales actually lost by the plaintiff. The infringing mass comprises  …

Loss of profit and loss suffered

Lost profit refers to the profits that the right holder would have derived from the infringer's acts of exploitation if he had carried them out himself . Calculating the lost profit involves assessing the infringing mass, the sales implemented by the infringer, and establishing what, within the infringing mass, corresponds to the sales actually lost by the plaintiff. The infringing mass comprises all products meeting the definition of an infringing product, including unsold products stocked by the infringer . In addition, the loss of profit takes into account the success of the counterfeit product, the usual clientele for the product, the commercial policy pursued by the proprietor of the design , the material and commercial possibility for the infringer to manufacture and market the product without increasing his fixed costs  or the possible profit obtained by the infringer as a result of being spared the costs of research and development, enabling him to sell the designs at a lower price than the originals .

The person bringing the infringement action may ask the court to appoint a judicial commissioner (court enforcement officer) to assess the infringing mass of products. However, the court may reject this request if the evidence presented to it is sufficient to assess the damage to the patrimonial value of the design and the harm suffered by the plaintiff . In particular, the amount of this damage may be determined by applying to the sales obtained using the counterfeit products a percentage representing the amount of the fee to which the author of the designs would normally have been entitled , by applying to the lost sales the average profit margin implemented by the proprietor of the rights on the last three versions of the infringing design , or, when it is impossible to know directly and with certainty the profits lost on the lost sales, by applying to the infringing mass an average cost price of the infringing design . The sums awarded may not be less than those claimed by the injured party on the basis of the infringing mass, unless it is established that this party would not have been able to market the entire mass .

The loss sustained corresponds to the economic harm resulting from the infringement of the design owner's rights. This infringement in itself generates a compensable harm . This may arise from the diverting of some of the proprietor's potential customers to the infringer , from the mediocre quality of the counterfeit product, which debases and trivializes the original model , or from the placing on the market, in large quantities and in the same distribution channels, of servile copies of the original designs, of inferior quality and at low prices, which undermines the patrimonial value of such designs by trivializing them and depreciating them in the eyes of customers who no longer value them , or the marketing of a counterfeit product to a mass clientele at a price which undermines the proprietor's brand image by depreciating the design in the minds of at least part of the public concerned, without it being necessary for the proprietor's profits to have been reduced as a result .

CA Paris, 11 September 2001, LawLex202200001850JBJ.

CA Paris, 4 November 2016, LawLex202200003747JBJ.

CA Aix-en-Provence, 24 November 2000, LawLex200200000706JBJ; CA Paris, 24 January 2000, LawLex202200001177JBJ.

CA Paris, 4 November 2016, LawLex202200003747JBJ; CA Paris, 7 March 2001, LawLex200200000525JBJ.

CA Paris, 7 March 2001, LawLex200200000525JBJ.

CA Paris, 28 January 2009, LawLex202200001359JBJ.

CA Aix-en-Provence, 24 November 2000, LawLex200000706JBJ.

CA Paris, 15 March 2000, LawLex202200004266JBJ.

CA Paris, 22 January 1999, LawLex202200004275JBJ.

CA Paris, 13 May 1998, LawLex200200001128JBJ.

CA Paris, 1 February 2006, LawLex202200003210JBJ.

Cass. com, 24 March 1992, LawLex202200001538JBJ.

Cass. com. 23 March 1999, LawLex200200000974JBJ.

TGI Paris, 11 September 2001, LawLex202200001850JBJ.

Cass. com, 5 June 2019, LawLex202200001537JBJ.

Industrial Property Law

514. Loss of profit and loss suffered

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514. Loss of profit and loss suffered

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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