Responsiveness is essential in unfair competition because the evidence is perishable. Also, it is important to have a global vision of the course of an unfair competition action in order to better anticipate its defense.
How does unfair competition take place?
In case of suspicion of acts of unfair competition, it is highly recommended to seek legal advice and assistance from a private detective agency.
The action of the lawyer and the detective are inseparable: the private investigator collects the evidence of the faults committed by the adversary and the lawyer seizes the magistrates competent to defend the interests of the applicant. Let’s try to analyze step by step the course of an unfair competition action.
Collection of Evidence of Unfair Competition by the Private Investigator
action déloyale competitionThe first step to defend against unfair acts is to lift the suspicions hanging over the other side and collect the evidence.
Thus the investigation of the private detective will invalidate or confirm the suspicions of the injured company and collect evidence of any unfair practices.
This collection of information is done through surveillance and spinning mills and various other sources of information.
Upon completion of the research, a detailed, detailed and accurate investigation report is provided to the client’s counsel in support of an application for an order under section 145 CPC.
The order on article 145 of the Code of Civil Procedure
Second, on the basis of the investigator’s report prepared by the private investigator, the applicant’s lawyer seeks authorization from the competent judge to make seizures, in particular at the premises of the unfair acts.
These seizures provide complete and irrefutable evidence.
These seizures are based on Article 145 of the Code of Civil Procedure.
Seized on request and in a non-adversarial manner, the magistrate makes an order allowing a bailiff to go to the premises of the opponent.
Accompanied by the police force and computer experts, this civilian search makes it possible to make a copy of computer hard disks, as well as the seizure of documents.
Eventually and in the third instance, the judge hearing the application for interim measures may be seized by subpoena in order to put an end to unfair acts by taking provisional measures or restoring them, under penalty payments.
Seizure of trial judge
In a last and fourth step, it was time to seize the competent court to have the opponent condemned to:
- the cessation of unfair acts under penalty due to injunctions to do or not to do
- compensation for damage caused by the award of damages
Which court to seize for an action in unfair competition?
As often in law, the person to be assigned will depend on the competent court.
The commercial court for traders
If the opponent is a commercial company, the commercial court is competent in accordance with Article L.721-3 of the Commercial Code.
The district court for non traders
If the opponent to be summoned is a non-commercial natural person, a civil society or an association, the Tribunal de Grande Instance (TGI) is competent in accordance with Article L.211-3 of the Code of Judicial Organization.
The Labor Court for employees
In addition, if the opponent is an employee who initiated his unfair actions in the company that pays him, the Labor Court is competent, even if these acts continued after the end of the employment contract.
NB: when a former employee does not respect his non-competition clause, we are not talking about unfair competition but about non-compliance with a non-competition clause. His contractual civil liability may be brought before the Labor Court to obtain reimbursement of the compensation paid.
Lastly, the competent court is more difficult to determine in the presence of parties with different profiles.
Which court to seize for a former employee held by a non-competition clause who commits acts of unfair competition for the benefit of his new employer?
As a first step, the former employer must appeal to the Conseil des prud’hommes about the non-competition clause not respected. Indeed, the CPH has sole jurisdiction to decide an application concerning a contract of employment.
In a second step, the former employer must seize the commercial court to assign his competitor, and new employer of his employee.
Indeed, voluntarily employing a person held by a non-compete obligation makes the new employer an accomplice.
In fact, the commercial court stays until the decision of the industrial tribunal is rendered.