Paris Court of Appeal, 8 October 2025, RG No. 24/17401
The judgment given by the Paris Court of Appeal on 8 October 2025 is part of a dispute that has, for more than a decade, pitted against each other two franchise networks operating in the business of making and selling takeaway pizzas. This case, whose complexity has grown steadily over successive sets of proceedings, illustrates with particular sharpness the tension that may arise between the right to evidence and the protection of trade secrets, a tension that the courts must resolve through a delicate exercise of balancing the competing interests at stake.
The dispute originated in an unfair competition action brought by Agora against Domino’s Pizza France. In the course of those proceedings, Speed Rabbit Pizza and Agora produced in evidence a guide prepared by Domino’s Pizza France for its franchisees, a document whose production gave rise to controversy as to its classification as a trade secret and the lawfulness of its use as evidence. After the Paris Commercial Court (tribunal de commerce) dismissed Agora’s claims on 7 July 2014, and a first judgment of the Paris Court of Appeal of 23 November 2022 held that the guide was a trade secret while allowing its production, the Commercial Chamber of the French Supreme Court (Cour de cassation) partly quashed that decision by a judgment of 5 June 2024 (Cass. com., 5 June 2024, No. 23-10.954), criticising the trial judges for not having examined whether that production was indispensable to prove the alleged unfair competition and whether the resulting infringement of the trade secret was strictly proportionate to the aim pursued.
Ruling on remand, the Paris Court of Appeal therefore had, first, to rule afresh on the classification of the disputed guide as a trade secret and, second, to carry out the proportionality review required by the Supreme Court. It confirmed that the document at issue constituted a trade secret and then, applying the proportionality test required by the recent case law stemming from the Full Court (Assemblée plénière) judgments of 22 December 2023 (Cass. ass. plén., 22 Dec. 2023, No. 20-20.648 and No. 21-11.330), concluded that its production was neither indispensable to the exercise of the right to evidence of Speed Rabbit Pizza and Agora nor proportionate to the aim pursued. Accordingly, it ordered those two companies, jointly and severally (in solidum), to pay Domino’s Pizza France €30,000 as compensation for the non-pecuniary damage suffered as a result of the breach of its trade secret.
This judgment is of major interest in that it clarifies the contours of the protection afforded to the franchisor’s know-how as a trade secret and the arrangements for the proportionality review that the court must carry out when faced with a tension between that secret and the right to evidence. We will examine in turn the classification of the franchisor’s guide as a trade secret and the proportionality review of the infringement of that secret.
I. Classification of the franchisor’s guide as a trade secret
The Paris Court of Appeal confirmed that the outlet evaluation guide drawn up by Domino’s Pizza France in 2018 constituted a trade secret within the meaning of Article L. 151-1 of the Commercial Code (code de commerce). This classification, which had already been adopted in the quashed judgment of 23 November 2022 (CA Paris, 23 Nov. 2022, No. 22/08310) and which the French Supreme Court (Cour de cassation) had not called into question in its judgment of 5 June 2024, deserves careful analysis, as it reveals the criteria for identifying such a secret in the specific context of franchising.
A. The cumulative criteria for a trade secret applied to the franchisor’s know-how
Article L. 151-1 of the Commercial Code, introduced by the Act of 30 July 2018 transposing Directive 2016/943 of 8 June 2016, defines a trade secret as information that meets three cumulative conditions. First, it must not be, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons familiar with this type of information because of their sector of activity. Second, it must have commercial value, actual or potential, because it is secret. Third, it must be subject to reasonable protective measures by its lawful holder, under the circumstances, to keep it secret.
The Court of Appeal carefully applied these three criteria to the disputed guide. As regards the first condition, it noted that the document contains very precise indications of the Domino’s Pizza franchisor’s own standards, which enable it to stand out from competing networks and result from the experience accumulated by that franchisor. The guide includes numerous tips for franchisees to help them improve the quality of their management and thus the profitability of their outlet. This information is not generally known among or readily accessible to persons familiar with the business of making and selling takeaway pizzas. The court stated in this regard that it is not necessary for each element to be original, unknown or difficult to access outside the network, since it is the information as a whole, and not each item taken in isolation, that is taken into account.
This analysis is in line with the scholarly and judicial conception of know-how in franchising, which is defined as a body of non-patented practical information, resulting from the franchisor’s experience and tested by it, which is secret, substantial and identified (Cass. com., 8 June 2017, No. 15-22.318). The secret nature of know-how implies that its elements as a whole are not generally known, but this requirement is assessed, as the Court of Appeal points out, by reference to the combination of elements and not to each element taken in isolation (Cass. com., 3 May 2012, No. 11-14.291; CA Paris, 21 May 2015, No. 14/08934). It is sufficient for the combination of non-original elements to be itself original for secrecy to be established (CA Paris, 16 Apr. 1991, No. 91/21700). This overall approach, which favours the assembly over the components, is grounded both in Block Exemption Regulation No. 330/2010 of 20 April 2010 and in Directive 2016/943 of 8 June 2016 on the protection of undisclosed know-how and business information.
As regards the second condition, relating to the commercial value of the information, the Court of Appeal observed that the guide is a vehicle for transmitting the franchisor’s distinctive and secret know-how. This classification refers directly to one of the franchisor’s essential obligations, namely to communicate its know-how to the franchisee. To be protectable, know-how must confer a competitive advantage that reasonably enables a diligent franchisee to conduct profitable business (CA Limoges, 9 July 2019, No. 17/00909; CA Douai, 21 Nov. 2019, No. 18/02432). In this case, the guide clearly performs this function, since its purpose is to enable franchisees to improve their profitability by applying the standards developed by the franchisor. Its commercial value thus derives directly from the economic advantage conferred by the know-how transmitted.
As for the third condition, relating to protective measures, the Court of Appeal does not expressly address this point in the extracts consulted, but it is established that franchisors traditionally protect their know-how through confidentiality obligations imposed on franchisees and through post-contractual non-compete clauses. These measures, which are now expressly required by Article L. 151-1 of the Commercial Code, constitute reasonable means of protection within the meaning of that provision.
B. The original assembly of know-how and the rejection of the argument based on availability on the internet
Speed Rabbit Pizza and Agora argued that the Court of Appeal on remand had full jurisdiction to assess whether or not the disputed document was a trade secret, notwithstanding the classification adopted in the quashed judgment. They contended in particular that the French Supreme Court (Cour de cassation) had ruled on the basis of the Court of Appeal’s findings of fact and had exercised only limited review of what was submitted to it. According to their argument, when the Court of Appeal ruled in the quashed judgment, it had not been aware that the disputed document was freely accessible on the internet, a fact which, in their view, was in itself enough to preclude that document from being protected as a trade secret.
The Court of Appeal rejected this argument, finding that the classification of the disputed document as a trade secret could not be challenged. It recalled that the Paris Court of Appeal had held, in the quashed judgment of 23 November 2022, that the document was a trade secret, and that the French Supreme Court (Cour de cassation) had not called that point into question in its judgment partly quashing it of 5 June 2024. This position is grounded in the limits of the cassation ordered, which concerned only the failure to examine whether the production of the document was indispensable and proportionate, without calling into question its very classification as a trade secret.
The rejection of the argument based on availability on the internet calls for several observations. First, putting a document online, whether accidentally or as a result of unauthorised disclosure, does not necessarily deprive it of its status as a trade secret if the conditions of Article L. 151-1 continue to be met. Indeed, Article L. 151-1 itself contemplates cases of unlawful acquisition, use or disclosure of the secret, which implies that secrecy may survive unauthorised dissemination. Second, the assessment of whether information is secret must take into account not only the accessibility of each element taken in isolation, but above all the precise configuration and assembly of those elements. Even if some of the information contained in the guide might be accessible separately, it is their specific combination that constitutes the franchisor’s trade secret.
This approach is consistent with earlier case law on know-how in franchising, which has always accepted that originality need not concern all the elements making up the know-how, provided that the combination of non-original elements is itself original. The courts have thus upheld as know-how voluminous manuals made up of borrowings and summaries, by reason of their content and arrangement, as well as the combination of a club membership scheme compulsory for customers and group insurance. The requirement of originality of know-how is therefore relative and is assessed in relation to the whole and not to each component taken in isolation.
II. Proportionality review of the infringement of trade secrets
Having confirmed that the guide was a trade secret, the Court of Appeal then had to carry out the proportionality review that the French Supreme Court (Cour de cassation) had criticised it for omitting in the quashed judgment. This review, the foundations of which lie both in the case law of the Supreme Court and in that of the European Court of Human Rights, requires the court to weigh the right to the protection of trade secrets against the right to evidence, in order to determine whether the production of a protected document can be allowed.
A. Production of the guide was not indispensable to prove unfair competition
The first limb of the proportionality review consists in checking whether the production of the document protected as a trade secret was indispensable to the exercise of the right to evidence. This requirement stems from Article 146 of the Code of Civil Procedure (code de procédure civile), under which an investigative measure may be ordered only if the party alleging a fact does not have sufficient evidence to prove it. The right to evidence, the principle of which is laid down in Article 9 of the Code of Civil Procedure and which is also grounded in Article 6(1) of the European Convention on Human Rights guaranteeing the right to a fair trial, cannot justify every infringement of competing rights if other means of proof are available.
The case law has gradually refined the conditions under which the right to evidence may prevail over the protection of trade secrets. In a Full Court (Assemblée plénière) judgment of 22 December 2023 (No. 20-20.648 and No. 21-11.330), the French Supreme Court (Cour de cassation) recalled that the court must assess whether evidence that infringes a protected right undermines the fairness of the proceedings as a whole, by weighing the right to evidence against the conflicting rights at stake.
The right to evidence may justify the production of material that infringes other rights, provided that such production is indispensable to its exercise and that the infringement is strictly proportionate to the aim pursued.
In the present case, the Paris Court of Appeal carried out the analysis required by the French Supreme Court (Cour de cassation) and concluded that production of the guide was not indispensable to prove the alleged acts of unfair competition. This conclusion presupposes that Speed Rabbit Pizza and Agora had other means of proof to establish the conduct they complained of on the part of Domino’s Pizza France, or that unfair competition could be proven without resorting to this specific document. The Court of Appeal clearly did not consider that production of the guide was the only means available to the defendants to establish their claim.
This assessment is in line with settled case law according to which a court may not order a general investigation into the whole of a company’s business, but must ensure that the investigative measure ordered is proportionate to the legitimate interests at stake and relates only to evidence directly linked to the potential dispute. In trade secret matters, the French Supreme Court (Cour de cassation) has thus overturned decisions that authorised overly broad investigative measures, such as one allowing a bailiff (huissier de justice) to seize any corporate, tax, accounting or administrative document and to search a company’s premises at will.
Whether production was indispensable must also be assessed in the light of the very subject matter of the dispute. Speed Rabbit Pizza and Agora were suing Domino’s Pizza France for unfair competition, which required them to establish specific acts of unfair competition. Yet the production of Domino’s Pizza France’s internal guide, which concerned the organisation and standards of that franchise network, did not appear to be directly and necessarily linked to proving specific acts of unfair competition allegedly committed by that franchisor against its competitors.
B. The disproportionate nature of the infringement in relation to the aim pursued and the sanction for the breach
The second limb of the proportionality review consists in checking whether the infringement of the trade secret caused by the production of the document was strictly proportionate to the aim pursued. This requirement forms part of the general framework of the proportionality review that the court must carry out when faced with conflicting rights or interests, a review grounded both in the case law of the European Court of Human Rights and in that of the French Supreme Court (Cour de cassation), recently summarised in the aforementioned Full Court (Assemblée plénière) judgments of 22 December 2023.
Article L. 151-8 of the French Commercial Code expressly provides that the acquisition, use or disclosure of a trade secret is not considered unlawful where it is required or permitted by European Union law or national law, in particular for the exercise of the right to freedom of expression and information, for the disclosure of wrongdoing, or for the protection of a legitimate interest recognised by Union law or national law. This provision therefore requires the court to take account of the legitimate interest of the parties and to weigh, on the one hand, the right to protection of trade secrets, which the Court of Justice of the European Union has established as a general principle of Union law (CJEU, 14 Feb. 2008, C-450/06, para. 49), against, on the other hand, the competing rights and legitimate interests.
In the present case, the Paris Court of Appeal held that the infringement of Domino’s Pizza France’s trade secrets resulting from the acquisition and production of the guide was not strictly proportionate to the aim pursued by Speed Rabbit Pizza and Agora. This lack of proportionality is assessed in the light of several factors. First, the extent of the infringement of the secret must be taken into account: the disclosure of a complete guide containing all of a franchisor’s know-how constitutes a particularly serious infringement of its legitimate interests, since that document reveals the standards and methods that make its network distinctive and enable it to differentiate itself from its competitors. Second, the actual usefulness of the production for proving the facts alleged must be weighed against the harm thus caused. Since, as the Court of Appeal observed, the production was not indispensable to establishing unfair competition, the infringement of trade secrets appears all the more disproportionate.
Earlier case law had already accepted that, in trade secret matters, the court could order alternative measures reconciling the right to evidence with the protection of the secret. Thus, in a judgment of 22 June 2017 (Cass. civ. 1re, 22 June 2017, no. 15-27.845), the French Supreme Court (Cour de cassation) quashed a judgment that had refused to replace a measure granting direct access to documents with an expert assessment entrusted to a third party bound by professional secrecy, on the ground that the judges should have examined whether that expert assignment was not a measure proportionate both to the claimants’ right to prove acts of unfair competition and to the preservation of the defendant companies’ trade secrets. In the present case, it does not appear that Speed Rabbit Pizza and Agora proposed any alternative measures that would have allowed them to establish proof while better preserving Domino’s Pizza France’s trade secrets.
Having found that the production of the guide protected as a trade secret was neither indispensable to the exercise of the right to evidence nor proportionate to the aim pursued, the Court of Appeal drew the appropriate conclusions by ordering Speed Rabbit Pizza and Agora, jointly and severally (in solidum), to pay Domino’s Pizza France the sum of 30,000 euros as compensation for the non-pecuniary loss suffered as a result of the breach of its trade secrets. This award is based on Article L. 152-6 of the French Commercial Code, which provides that damages compensating the loss suffered by the holder of a trade secret as a result of its unlawful acquisition, use or disclosure shall take into account, in particular, the negative economic consequences of the infringement, including lost profits and the loss suffered by the injured party, non-pecuniary loss, as well as the profits made by the infringer and the savings in intellectual, material and promotional investment that the infringer derived from the infringement.
The amount of the award, set at 30,000 euros, corresponds to the non-pecuniary loss suffered by Domino’s Pizza France. This non-pecuniary loss consists of the harm to the franchisor’s image and reputation resulting from the disclosure of its know-how to competitors, as well as the harm to the confidence that franchisees may have in the franchisor’s ability to protect the confidential information it shares with them. The recognition of this non-pecuniary loss, separately from the economic loss that might result from competitors’ use of the trade secret, shows the importance the court attaches to the protection of the secret as such, regardless of the direct economic consequences of its breach.
The judgment handed down by the Paris Court of Appeal on 8 October 2025 is a major contribution to trade secret case law in the field of franchising. By confirming that the guide drawn up by a franchisor for its franchisees may constitute a trade secret within the meaning of Article L. 151-1 of the French Commercial Code, the court upholds the protection of know-how transmitted within a franchise network. Furthermore, by carrying out the proportionality review required by the French Supreme Court and concluding that the production of the protected guide was neither indispensable nor proportionate, it sets the limits of the right to evidence in the face of trade secret protection.
This judgment forms part of a broader case-law trend aimed at reconciling conflicting imperatives: on the one hand, the need to guarantee a fair trial, which implies that each party must be able to prove its claims and, on the other hand, the protection of legitimate rights such as trade secrets, which are an aspect of the freedom to conduct a business and of free competition. The balancing exercise carried out by the court reflects the complexity of this task and the need for a case-by-case assessment, taking into account both the characteristics of the secret at issue and the actual usefulness of its production for establishing the truth.
Beyond the facts of the case, this decision sheds light for franchisors on the scope of the protection they may enjoy under trade secret law and on the conditions under which their guides and manuals may be shielded from production in court. It also reminds businesses that obtaining and producing documents protected as trade secrets, even in the context of legal proceedings, may give rise to liability and to compensation for the loss suffered by the holder of the secret. The award made by the Court of Appeal, which penalises both the acquisition and the production of the protected document, reflects the rigour with which French law, in line with the requirements of the European directive, now intends to protect trade secrets against unlawful infringement.
