In an important judgment of 7 October 2026 (No. 25-14.170), designated for publication in both the Bulletin and the Rapport, the Commercial Chamber of the French Court of Cassation clarified two important aspects of the personal liability of managers of French private limited liability companies (sociétés à responsabilité limitée, or SARLs).
The first concerns the commission of the criminal offence of trademark infringement. The second, of particular interest, concerns the refusal to comply with a court order requiring the company to produce documents.
In both situations, acting in the course of one’s corporate duties does not necessarily shield a company director from personal liability.
The dispute arose between the owner of the French word mark POLYTER and its licensee, PODG Développement, on the one hand, and the manager of Geib France, an SARL, on the other. The company marketed products bearing the POLYTER trademark through a dedicated website. A court-authorised infringement seizure (saisie-contrefaçon) had notably revealed the acquisition of 500 kilograms of products from a Swiss company.
By a final judgment of 8 February 2022, delivered in civil trademark infringement proceedings, the court had found that Geib France infringed the trademark by reproducing the POLYTER sign without authorisation. That judgment did not constitute a criminal conviction.
The trademark owner and its licensee had also brought proceedings against the company’s manager, relying on the acts of infringement and his refusal to produce accounting documents as ordered by the court.
The Paris Court of Appeal had rejected the claim for personal liability. The Court of Cassation overturned that decision on two distinct grounds.
1. Criminal Trademark Infringement as Misconduct Separable from Corporate Duties
Under Article L. 223-22 of the French Commercial Code, a manager’s personal liability towards third parties generally requires misconduct separable from their corporate duties (faute séparable des fonctions).
French case law has traditionally defined such misconduct as intentional wrongdoing of particular gravity, incompatible with the normal exercise of corporate duties (Cass. com., 20 May 2003, No. 99-17.092, Seusse).
Under established case law, an intentional criminal offence committed by a company manager is, by its very nature, separable from their corporate duties (Cass. com., 28 September 2010, No. 09-66.255).
The significance of the present judgment lies less in reaffirming this principle than in clarifying the examination required of the civil court.
The Court of Cassation held that, when hearing a claim against a company manager, the civil court must determine whether the acts personally attributed to that manager constitute the intentional criminal offence of trademark infringement under Article L. 716-10 of the French Intellectual Property Code.
If the constituent elements of that offence are established, the offence constitutes misconduct separable from the manager’s corporate duties and may give rise to personal liability towards third parties who have suffered damage as a result.
It is therefore insufficient merely to assess the gravity of the manager’s conduct in the abstract or to observe that the acts were carried out in the course of the company’s business.
The distinction between civil trademark infringement and criminal trademark infringement remains essential. Civil liability for trademark infringement does not, in principle, require proof of an intention to infringe. A finding of civil infringement against a company therefore does not automatically entail the personal liability of its manager. The constituent elements of the intentional criminal offence must still be established in relation to acts personally attributable to that manager.
For trademark owners confronted with infringing e-commerce websites, this judgment confirms the potential value of bringing civil proceedings directly against the company manager, without the need for a prior criminal conviction.
Evidence of the manager’s personal involvement and the requisite criminal intent remains decisive.
2. Refusal to Produce Documents as Personal Misconduct
The second contribution of the judgment is particularly significant.
The judge responsible for pre-trial case management (juge de la mise en état) had ordered Geib France to produce several documents intended to establish the extent of the infringing commercial activity: a certified inventory, purchase and sales invoices, accounting extracts, and financial results relating to the products concerned.
The company had failed to comply with that order.
The Court of Appeal had found that the refusal was attributable to the manager. Nevertheless, it considered that the failure to produce the documents did not constitute misconduct separable from his corporate duties.
The Court of Cassation reached the opposite conclusion.
It held that the refusal established by the lower court necessarily meant that the manager had intentionally committed misconduct of particular gravity, incompatible with the normal exercise of his corporate duties. By failing to draw the legal consequences from its own findings of fact, the Court of Appeal had violated Article L. 223-22 of the French Commercial Code.
The significance of this ruling lies in the fact that the court order was addressed to the company, not personally to its manager. Nevertheless, it was the manager’s refusal to ensure compliance with that order that constituted misconduct separable from his corporate duties.
The company’s separate legal personality does not, therefore, necessarily protect its manager from the personal consequences of refusing to comply with a court order addressed to the company.
This ruling has considerable practical significance in trademark infringement litigation, where access to commercial and accounting records is often essential to assessing the extent of the damage suffered.
It does not, however, mean that every failure to produce documents automatically gives rise to the manager’s personal liability. The judgment rests on the lower court’s finding that the refusal to comply with a judicial order was personally attributable to the manager.
3. What Are the Implications for Rights Holders?
The judgment highlights two distinct grounds that trademark owners may consider when pursuing a company operating an infringing website.
The first involves establishing that the company manager personally committed acts constituting an intentional criminal offence.
The second concerns the manager’s conduct in the proceedings, particularly where they refuse to ensure compliance with a court order requiring the production of documents necessary to assess the damage caused by the infringement.
These two grounds may be relied upon independently, provided that the claimant establishes the damage for which compensation is sought and the causal link between that damage and the misconduct.
The potential significance of the second ground extends beyond trademark litigation. The reasoning based on Article L. 223-22 of the French Commercial Code could also apply to other commercial disputes in which a company manager deliberately obstructs compliance with a court order. The precise limits of this principle will, however, need to be clarified through subsequent case law.
The judgment does not itself impose personal liability on the manager or order him to pay damages.
On the first ground, the court to which the case is remitted must determine whether the acts attributed to the manager constitute an intentional criminal offence. On the second, the Court of Cassation has already characterised the refusal established by the lower court as misconduct separable from corporate duties. The court hearing the case on remand must draw the appropriate legal consequences, particularly regarding the alleged damage and the causal link.
The central lesson of this judgment is clear: although a company’s separate legal personality ordinarily shields its manager from personal liability for the company’s acts, that protection does not extend to situations in which the manager personally commits an intentional criminal offence or deliberately refuses to ensure compliance with a court order addressed to the company.
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