The word counterfeit is sometimes misused. Let us clarify what this notion means from a legal point of view.
History of counterfeiting
At first, it is especially the term counterfeit that will be used, drawing its etymology from the Latin verb factio “right to do” and the adverb contra “on the contrary”. Counterfeiting means the infringement of copyrights exclusively for the support of the book when the word counterfeit is broader and focused on the trade: counterfeit
“A term of trading people, who speaks of the fraud that is done by counterfeiting or the printing of a book, or the manufacture of a material, to the detriment of those who have the right and the privilege. He was sentenced for forgery. “
Little by little, the word counterfeit is abandoned and a lexical field peculiar to intellectual property is forged. At the beginning of the July Monarchy, we find a definition of counterfeiting very close to the current definition:
“Action to copy, to imitate, to manufacture a thing to the prejudice of the one who has the exclusive right to make it, to manufacture it. The counterfeiting of a book, a piece of music, an engraving. The inventor of this machine fears counterfeiting. “
Today, we can define counterfeiting as an infringement of an intellectual property right. In general, this right arises from its registration with the National Institute of Intellectual Property INPI and confers on its holder a monopoly in the exploitation of this intellectual property.
In short, “the counterfeiter is (…) the leech of the owner of the intellectual property right. “
Counterfeiting concerns all intellectual property rights and specific legal texts exist for each of them.
Counterfeiting of literary and artistic property rights
Copyright infringement is provided for in Article L 335-3 of the CPI:
“It is also an offense of forgery any reproduction, representation or dissemination, by any means whatsoever, of a work of the mind in violation of the rights of the author (…)”.
Article L. 335-2 specifies:
“(…) Counterfeiting in France of works published in France or abroad is punishable by three years’ imprisonment and a fine of 300,000 euros. The same penalties shall apply to the debiting [distribution or distribution], export and import of infringing works. (…) »
Copyright infringement is assessed regardless of the number of counterfeits, the process used, the material, the quality, the destination or the medium used to obtain the counterfeit product.
Counterfeiting of industrial property rights
Counterfeiting of designs is provided for in Articles L. 521-1 et seq. Of the Intellectual Property Code, that on patents in Articles L. 613-3 et seq., While trademark infringement is provided for in Articles L. 716-1 and following.
“In the field of intellectual property, it is a matter of principle that counterfeiting is assessed in terms of overall similarities and not differences of detail. “
Trademark infringement can be achieved by reproduction or imitation. (Article L. 713-3 CPI)
An infringement by reproduction means an identical reproduction of the signs for the same products or services.
Counterfeiting by imitation amounts to a likelihood of confusion between two marks, both at the sign level and at the product / service level. It is appreciated by:
- the risk of confusion in the mind of a consumer of average attention who does not have both marks simultaneously under the eyes (the survey is frequently used to assess the risk
- the overall impression produced by the signs. The resemblance can be visual, phonetic or intellectual
- taking into account the distinctive and dominant elements
Well-known marks benefit from a slightly more flexible regime as regards the application of the specialty principle.