On October 7,2026, the Supreme Court quashed a ruling by the Paris Court of Appeal which had dismissed the personal liability of a manager in a case of trademark counterfeiting. Henceforth, when a rights holder argues before a civil court that the director has committed the offense of counterfeiting, that judge must examine whether his actions constitute it. The analysis is signed by Philippe Schmitt, a lawyer in Paris.
- La Cour de cassation annule l’arrêt de la cour d’appel de Paris qui écartait la responsabilité personnelle d’un gérant pour contrefaçon de marque.
- Le juge civil doit désormais vérifier si les agissements du dirigeant constituent le délit de contrefaçon.
- Le refus du gérant de produire des documents malgré une injonction constitue une faute intentionnelle d’une particulière gravité.
- La décision concerne les marques, et son extension au droit d’auteur reste à valider.
The case concerned a trademark used for fertilizers and water retainers. Its owner and licensee accused an LLC of selling products under this trademark on a website whose domain name contained it. Convicted of counterfeiting by the Paris Judicial Court on February 8,2022, the company had not complied with the judge’s order to communicate its invoices and accounting records, and the penalty payment, a sum due for each day of delay, had to be enforced.
The rights holders then turned to the manager, based on Article L. 223-22 of the Commercial Code. The court, and then the Paris Court of Appeal on January 10,2025, dismissed their claims. The judges noted a “debatable” ownership, products purchased from a former distributor, acts of “moderate severity, ” and a lack of proof that the manager was aware of the rights.
The civil judge must characterize the facts
According to Philippe Schmitt, the Court first reiterates the principle established in 2010: a manager who commits a fault constituting an intentional criminal offense, separable from his social functions, incurs civil liability towards third parties. It derives a new rule from this. When a civil judge is seized of a trademark counterfeiting committed intentionally by the manager, he must verify whether his actions constitute this offense. For the author, the Court of Appeal’s reasoning on the moderate severity of the facts thus becomes inoperative.
The Court also ruled that the manager’s refusal to comply with a court order to produce documents constitutes an intentional fault “of particular gravity, incompatible with the normal exercise of social functions.” The Court of Appeal had held the opposite, which leads to the quashing.
Limits to keep in mind
The Advocate General proposed that the civil judge conduct this examination ex officio. The Court did not follow this: it is only required “when it is argued” that the offense is constituted. Furthermore, the ruling concerns trademarks. Its transposition to copyright, at the heart of the debate on AI model training, remains, according to the author, an extrapolation that the Court has not yet validated. Finally, the ruling targets a manager of an LLC, whereas AI companies are often SASs (simplified joint-stock companies), but the definition of the separable fault would be common to all legal directors.
Good faith, a central point
In civil matters, the good faith of the infringer is irrelevant. For the director, it is now the mental element of the offense that matters. The author recalls that criminal intent is deduced from the materiality of the facts, unless the accused proves his good faith, which makes proof difficult for a professional in the sector. However, the Criminal Division admits that good faith results from checks actually carried out, as indicated in a ruling of May 18,2011.
