The Court of Cassation reiterates that a company cannot warn its competitor’s distributors of a risk of counterfeiting in the absence of a court ruling confirming its rights. Such warnings constitute wrongful disparagement, even when they are worded with restraint.

Court of Cassation, Commercial, Financial and Economic Chamber, 15 October 2025, No. 24-11.150

The facts: dispute between wind chime manufacturers

The case pits two manufacturers of handcrafted wind chimes against each other:

• Koshi, the holder of copyright on its designs;
• Manufacture du Marronnier, assisted by its subsidiary VBV International, responsible for the production and distribution of a competing range of wind chimes called Heola.

In September 2022, Koshi obtained an order for seizure of counterfeit goods targeting the Manufacture du Marronnier workshops. A few weeks later, on 15 November 2022, Koshi sent a letter of formal notice to twelve distributors of the Heola range, demanding that they immediately cease all marketing of these products and submit their invoices, under penalty of legal action.

Believing that this action damaged their commercial reputation, the companies sued Koshi in summary proceedings to put an end to what they considered to be manifestly unlawful disparagement.

The question: where does the defence of one’s rights end and disparagement begin?

The courts of first instance had ruled that the disputed letters were written with caution and contained neither threats nor false information.

The Montpellier Court of Appeal (9 November 2023) thus ruled that Koshi had merely informed distributors of the possible counterfeiting of its works, on the basis of a seizure of counterfeit goods authorised by the judge, without exceeding the measures necessary to defend its rights.

Informing without legal proof = disparagement

The Court of Cassation censured the Court of Appeal’s decision.

Simply informing third parties of a risk of counterfeiting, before any court decision, is sufficient to constitute an act of wrongful disparagement.

According to the Commercial Chamber:

« In the absence of a court decision finding that acts of counterfeiting have occurred, the mere fact of informing third parties of possible counterfeiting constitutes disparagement of the products alleged to be counterfeit. ‘

Careful wording is not enough. Even a ’measured » letter, sent in good faith to business partners, constitutes disparagement if it casts doubt on the legality of competing products without a prior court decision.

This solution, reaffirmed by the Court of Cassation in this decision, has the merit of clarity.

This ruling is in line with strict case law on commercial disparagement.

While it is legitimate to defend one’s intellectual property rights, any communication with third parties (customers, distributors, the press, social networks) must be based on a court decision, or at the very least on indisputable and objectifiable evidence.

The Court thus reinforces the balance between:

• the right to alert a competitor or the public to an alleged copyright infringement, and
• the right to fair competition, prohibiting any unjustified damage to the reputation of others.

A rights holder who alleges infringement must therefore refrain from legally anticipating a court decision on the infringement and must not alert distributors prematurely.

A formal notice letter sent to customers, even if cautious, can become a boomerang if it is based on rights that have not yet been recognised.

This severity may come as a surprise, but it is essential in order not to exacerbate the damage to an economic actor accused of infringement, potentially wrongly.

If the Court of Cassation were to allow distributors to be informed of potential acts of infringement before a court decision, this would allow a company to take justice into its own hands, jeopardising a competitor’s distribution network.

This solution therefore protects companies until the counterfeiting is proven and avoids premature denigrating actions.

By Olivier Vibert

Kbestan, law firm specialising in corporate, tax and commercial law in Paris and Evreux.

www.kbestan.fr