"Made in France" – How reliable is information about origin?

“Made in France”, “Fabrication francaise”, “Fabriqué en France”, etc. are showing renewed interest from producers and manufacturers in the competition to distinguish their products from those of competitors.

In France, there is no legal or regulatory obligation to mark the origin of products, with the exception of a few products such as agricultural products and food. For all other products, the original marking is therefore optional and voluntary. It is carried out under the sole responsibility of the manufacturer or importer.

For non-food products, companies are asked to refer to the European regulations on non-preferential customs origin to determine the “nationality” of that product. If several countries are involved in the manufacture, the product has its origin in the country of the last significant (1), economically justified (2) conversion that led to the manufacture of a new product or that corresponds to a significant manufacturing stage (3).

The controls are carried out by the economic administration (DGCCRF) and customs administration (DGDDI).

In addition to criminal sanctions, the erroneous use of a term such as “Made in France” can have serious civil law consequences if a competitor submits an action on this basis due to unfair competition.

In fact, last year, the Court of Appeal admitted for the first time that the damage caused by a misleading practice can be compensated by taking into account not the lost profit or the losses of the disadvantaged competitor, but the savings of the unfair competitor (Cass. com. 12 fév. 2020, n°17-31614).

For example, a French crystal factory accused a competitor of advertising crystal products as “Made in France” in its catalogues, although some of these were manufactured in China. Convicted of unfair competition through misleading business practices, the aforementioned competitor was ordered to pay compensation that was calculated taking into account the impermissible competitive advantage and the savings wrongly achieved (in relation to its personnel costs). The Supreme Court of Cassation approves the argumentation of the first judges, which deviates from the traditional analysis in matters of unfair competition. This consists of valuing the recoverable loss based on lost profit, decline in sales, decline in turnover, decline in orders, margin loss, loss in value, etc.

Autor: Maurice Hartmann