Unfair competition: the evidence

Collection of evidence of unfair competition is difficult because it is often difficult to obtain and perishable. Thus, it is essential to engage the services of a private detective agency recognized by the actors of the specialty.

The burden of proof in unfair competition proceedings

French law derives its essence from Roman law and the fundamental postulate “affirmative incumbit probatio” is enshrined in Article 9 of the Code of Civil Procedure “It is incumbent upon each party to prove in accordance with the law the facts necessary for the success of its claim. . “

To present evidence to the judges of their allegations, the parties to the trial have two main means: the collection of evidence by their own means and the finding by judicial officer.

However, these means are limited or very difficult to implement.

Evidence of unfair competition

In the context of an unfair competition action, as in the case of any legal action in commercial matters, proof of a fact may be reported by any means in accordance with Article L.110-3 of the French Commercial Code.

Thus, are admitted the communication media of all kinds (commercial brochures, website page …), exchanges of correspondence (email, SMS, MMS, conversations on various applications, paper mails …), the judicial attestations on the basis of Article 202 of the Code of Civil Procedure or even a private investigator’s report.

This investigation report must respect the rules of substance and form to be incontestable before the competent courts.

The intervention of the private detective

The only professional legally entitled to conduct investigations in the civil and commercial fields, the private detective is therefore a master asset in the field of unfair competition law.

Surveillance and spinning are often used to demonstrate the reality of certain facts, photographs and findings.

In addition, the use of various databases, the collection of administrative documents and the use of computer tools are also widely used.

Finally, it happens regularly that a private investigator comes into contact with various people in order to “collect, even without stating its quality or reveal the purpose of its mission, information”, as provided for in Article L621- 1 of the Internal Security Code.

At the end of his investigations, the detective provides a detailed, detailed and precise investigation report to his client’s counsel.

Most often, this investigation report will allow the latter to submit an art request. 145 of the Code of Civil Procedure before the President of the Tribunal de Grande Instance to conduct a search in civil matters.

The ultimate evidence in an unfair competition action: Order 145 CPC

An order on the basis of article 145 of the Code of Civil Procedure is an exceptional means that allows a party to the trial to seek in a non-adversarial way a magistrate to proceed to the seizure of any material and immaterial element.

Because of its coercive nature and to justify such a measure, it is fundamental to present to the judge a request provided and supported by convincing and concordant evidence.

It is often the preliminary investigations of the private detective that make it possible to convince the magistrate.

Then, if it considers it justified, the President of the Tribunal de Grande Instance issues an order so that a bailiff accompanied by computer experts and the police force seize any element in various places, simultaneously (head office of the opposing company, places of production, home of an employee ..).

The documents seized will make it possible to corroborate unambiguously the actions committed by the dishonest employee or, more generally, the perpetrators of unfair acts.

This is a true search and rescue measure in civil matters.

[1] Cass. civ.2th, 7 October 2004, Bull. Civ. II No. 447.