The damage resulting from free competition is not reprehensible (Franchise Observatory, April 2015)
Blaming a former partner and former employee, a customer diversion, a company assigns the latter in unfair competition.
The Court considers that “due to the principle of the lawfulness of competitive damage, the harm to customers, current or potential, is not reprehensible” and that the fault of the former partner “can only be retained if the alleged circumstances allow to characterize a maneuver of diversion of the disputed customers which, in the precise circumstances of the present case, is absolutely not established“.
Thus, the Court reversed the judgment in that it had sentenced the former partner for acts of unfair competition and had ordered him to compensate the damages suffered by the company.
The principle that competition is lawful is here recalled by the Court. Damage resulting from free competition is not punishable, except in the case of an act of unfair competition.
In the event that a former partner, employee or franchisee of the franchisor comes to compete with the latter, this situation may be franchised.
The fact of competing with a franchisor will not be reprehensible in the absence of a clause provided for in the contract and provided that it does not commit a tort (parasitic or unfair competition).
It is therefore imperative, in the agreements concluded with the partners and the contracts concluded with the employees and franchisees, to protect themselves by the insertion of contractual non-competition clauses. However, it should be recalled that the validity of these clauses obeys strict conditions.
On this notion of unfair competition, see also the decision on OPTIC 2000, “Action in unfair competition: a strategic tool at the service of retailers“
(Decision of the Nancy Board of 25 February 2015 RG No. 14/02245)
And resources on the same topic: "The damage resulting from free competition is not reprehensible (Franchise Observatory, April 2015)"
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