For the average consumer, a counterfeit is just a copy of an original product. Hence, there are many misconceptions attached to this term, such as “this is not a counterfeit because the trademark is not reproduced on the product” or “there are several differences with the original product so it is not a counterfeit”. Therefore, there are some ideas that should be clarify in order to understand the term Counterfeiting.
Counterfeiting means to reproduce, imitate or use (total or partially) an intellectual property right such as trademarks, patents, designs, copyright or software without the right holder’s authorisation. (Article L.335-2 of the French Intellectual Property Code).
In principle, a counterfeit product is assessed by comparing the similarities rather than the differences. A counterfeit should be evaluated by the general impression given. (CJCE, 11 november 1997, Aff. C-251/95 [Sabel]; CJCE, 29 september 1998, Aff. C-39/97 [Canon] ; CJCE, 22 june 1999, Aff. C-342/97 [Lloyd]).
Consequently, even if the product is not exactly identical to the original, it is still susceptible to constitute a counterfeiting act if the overall impression is similar to the original one. Adding aesthetic features, different colours or even the absence of the trademark does not evade the counterfeiting practice.
Counterfeiting must be assessed bearing in mind the overall impression of the product not just the differences or similarities.
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