When people talk about counterfeiting, they often picture an obvious copy: a design reproduced identically, a duplicated logo, content clearly reused without permission. In reality, things are rarely that simple.
Between two creations, the line is sometimes blurred. Inspiration, resemblance, coincidence… and infringement. It is precisely in these grey areas that case law plays a key role.
Contrary to popular belief, infringement does not necessarily require an identical reproduction.
Judges look first and foremost at whether the essential and original elements of a work have been taken. There can therefore be infringement even where there are differences.
What matters is not a perfect copy, but the reproduction of what makes the work original.
In many disputes, one question comes up systematically: did the person accused of infringement have access to the original work?
Case law considers that infringement is based on the reproduction of a work, but it also accepts that it is up to the defendant to show that they could not have had access to it or that the similarities are coincidental.
In other words, two similar creations are not always enough. A link between the two still has to be established.
In practice, things are rarely decided on the idea itself. Everything comes down to proof.
The law is clear on one point: infringement can be proven by any means.
But this freedom has a direct consequence: the quality of the evidence becomes decisive.
Official reports, documents, creation history… the more precise the evidence, the more weight it carries in the decision.
Conversely, weak or imprecise evidence can be enough to make a claim fail.
Some decisions clearly illustrate this difficulty.
In design or product cases, judges do not simply compare two objects. They analyse the overall impression, the distinctive features, and how these elements are perceived.
It is not just a matter of seeing whether two objects look alike, but of understanding whether one takes what makes the other unique.
Another often misunderstood point: intent is not always decisive.
In civil matters, infringement can be established regardless of good or bad faith.
In other words, even without any intention to copy, liability can be incurred if the elements of infringement are present.
Taking a step back, all these decisions point to one simple idea. Infringement is not a matter of opinion. It is a matter of demonstration.
In this context, the ability to document creation is becoming increasingly important.
Being able to show when a file was created, how it evolved and who it was shared with often becomes as important as the creation itself.
This is where practices are changing. Creating is no longer always enough. Nor is sharing. Each step needs to become part of a chain of proof.
Today, solutions make it possible to anticipate these issues.
By associating a file with a timestamp and a digital fingerprint, you can create reliable proof of existence. This proof can then be used in a dispute to establish prior existence.
With Rightkeeper, for example, a file can be certified as soon as it is created or before it is shared, making it possible to build traceability that can actually be used.
Case law on infringement does not only protect ideas. It protects what can be demonstrated. In an environment where creations circulate quickly and sometimes look alike, the difference is no longer made only by what you created. It is made by what you are able to prove.
