Industrial Property Law

Before proceeding with the seizure, the judicial commissioner (commissaire de justice) must give a copy of the court order (warrant)  and, where applicable, of the document recording the provision of guarantees to the holders of the goods seized or described . After the seizure, the judicial commissioner must give the same persons a copy of the official minutes (procès-verbal) (Art. R. 615-2-1, pa …

Seizure operations

Before proceeding with the seizure, the judicial commissioner (commissaire de justice) must give a copy of the court order (warrant)  and, where applicable, of the document recording the provision of guarantees to the holders of the goods seized or described . After the seizure, the judicial commissioner must give the same persons a copy of the official minutes (procès-verbal) (Art. R. 615-2-1, para. 2, IP Code). Failure to comply with the above formalities will invalidate the seizure. This is governed by Articles 112 et seq. of the Code of Civil Procedure  and requires proof of the existence of a complaint . Damages may be claimed from the judicial commissioner.

Neither the claimant nor his representatives may be present during the actual operation, even if authorized to do so by the court hearing the claim . The judicial commissioner may only carry out what is expressly authorized by the court order, which cannot be construed as a delegation of jurisdictional power . If the judicial commissioner encounters difficulties during the seizure that require a new seizure not provided for in the order, he or she must refer the matter to the court .

Only the judicial commissioner is authorized to carry out seizure operations . Although he or she may be accompanied by an expert, the latter's role must be clearly distinguished from that of the judicial commissioner, and limited to assisting him or her in the operation. Failing this, the seizure is invalid. This is the case when the expert directly asks the person seized for invoices, responds to the latter's remarks, and produces as supporting material a drawing that the person seized has himself made under unknown conditions, which has been appended to the official report . Furthermore, the judicial commissioner may not reproduce verbatim the descriptions of the device used by the expert in an uncritical manner, thereby delegating his or her powers of verification to the expert . However, the fact that the judicial commissioner uses technical terms derived from the patent is not sufficient to establish that he did not independently perform his operations , particularly if he provides a precise description of the various phases of the transaction performed before his eyes, and of the product used , if he clearly distinguishes the technical explanations provided by the expert from his own observations , if these explanations are given in the presence of the representative of the undertaking seized, and are referenced in quotation marks , or if he takes care to specify that he is proceeding with a transcription and provided that he verifies, on the objection of the holders of the objects described, the accuracy of the points of fact stated by the expert or, if such verification appears impossible to him, that he mentions the objection in his minutes, specifying why he was unable to carry out the verification . In all cases, the purely material assistance of experts, under the judicial commissioner's supervision, during the execution of infringement seizure measures, is not intended to vitiate the judicial commissioner's own operations .

Cass. civ. 2e, 10 February 2011, LawLex202200003899JBJ.

Cass. com, 25 April 2001, LawLex202200003901JBJ.

Cass. com. 3 April 2012, LawLex202200003529JBJ.

CA Paris, 12 December 2012, LawLex201200002474JBJ.

Cass. com, 21 March 2000, LawLex202200003685JBJ.

Cass. com., 6 April 1999, LawLex202200003900JBJ.

Cass. com, 5 July 2017, LawLex202200002690JBJ.

CA Paris, 3 July 2009, LawLex202300006089JBJ.

Cass. com, 8 July 2008, LawLex20220000000553JBJ.

Cass. com. 17 January 2018, LawLex201800000113JBJ, which considers that the task entrusted to a judicial commissioner of sequestering data likely to infringe privacy or business secrecy does not constitute a delegation of jurisdictional power, as the purpose of such a precaution is, in the interest of the parties seized, only to carry out an initial selection of documents that may apparently be of this nature, with the final assessment of this classification being a matter for the trial court alone.

Cass. com. 23 April 2003,LawLex202300006042JBJ.

Cass. com., 23 April 2003, LawLex202300006042JBJ.

Cass. com, 3 March 2009, LawLex202200002108JBJ.

Cass. com., 29 September 2015, LawLex202200001882JBJ.

Industrial Property Law

400. Seizure operations

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

400. Seizure operations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise