Industrial Property Law

The seizure is ordered by the presiding judge of the judicial court having jurisdiction on the merits of the case (Art. R. 521-2, para. 1, IP Code) or, if the action on the merits has already been engaged, by the presiding judge of the chamber to which the case has been assigned. The order may authorize the judicial commissioner, under Article R. 521-2, paragraph 2, of the Intellectual Property Co …

Court order

The seizure is ordered by the presiding judge of the judicial court having jurisdiction on the merits of the case (Art. R. 521-2, para. 1, IP Code) or, if the action on the merits has already been engaged, by the presiding judge of the chamber to which the case has been assigned. The order may authorize the judicial commissioner, under Article R. 521-2, paragraph 2, of the Intellectual Property Code, to make any relevant observations with a view to establishing the origin, substance and scope of the infringement. The presiding judge of the court may also order, in the light of the seizure report, any measure to obtain further proof of the alleged acts of infringement (Art. R. 521-5 IP Code).

The order on ex parte application constitutes a provisional judgment, rendered without adversarial hearing in cases where the applicant is entitled not to call the opposing party (Art. 493 Code of Civil Procedure). Seizures fall into this category. Directive No 2004/48 specifies that the measure may be taken without the other party being heard, in particular when any delay in its issuance is likely to cause irreparable harm to the proprietor or when there is a demonstrable risk of evidence being destroyed (Art. 7). The surprise element prevents the possible destruction of evidence.

The order must state the grounds on which it is based (Art. 495, para. 1, Code of Civil Procedure) and contain all the information required by Articles 454 et seq. of the same code. It can only be enforced once it has been served on the person against whom it is directed . It is enforceable on the basis of the minute alone, i.e. on simple presentation to the defendant, without the need to notify him (Art. 495, al. 2, Code of Civil Procedure). An enforcement officer (judicial commissioner) who carries out a seizure for infringement where the order is not enforceable commits an abuse of power resulting in the annulment of the seizure .

The presiding judge may authorize the judicial commissioner to make any relevant observations with a view to establishing the origin, content and extent of the infringement (Art. R. 615-2, para. 4, IP Code) . He or she may set the conditions and scope of the seizure, but may not refuse authorization to carry out the seizure if it has been requested in due form and with the justifications provided for by law . In the light of the seizure report, any measure to supplement the evidence of the alleged acts of infringement may be ordered (Art. R. 615-4, para. 1, IP Code), as may the temporary retention of the seized items, under the conditions laid down in Article R. 153-1 of the Commercial Code, to ensure the protection of business secrecy (Art. R. 615-2, para. 5, IP Code). Lastly, the judge may amend or withdraw the order, even if the trial court is already seized of the case (Art. 496, para. 2, and 497 Code of Civil Procedure). An application for retraction of an order on ex parte application falls within the exclusive jurisdiction of the court having issued it , and is not subject to any statute of limitations. If the court decides to revoke the order, it must automatically declare the subsequent formal record invalid, as well as any investigative measures carried out on the basis of the order, if so requested .

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

Cass. com., 14 September 2010, LawLex202200003686JBJ, concerning an order enforced by the bailiff when it only became enforceable after the applicant had been provided with a receipt for the surety bond and a copy had been given by the bailiff to the seized party, which had not been done.

Article 7 of the Directive No 2004/48 of 29 April 2004 on the enforcement of intellectual property rights requires the applicant to provide the court with  any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant's right is being infringed, or that such infringement is imminent. However, this requirement has not been incorporated into French law, as Member States may retain their national procedure if it is more favorable to proprietors (Art. 2 of directive).

Cass. com, 29 June 1999, LawLex202200003688JBJ.

CA Paris, 12 December 2012, LawLex201200002474JBJ.

Cass. civ. 2e, 5 January 2017, LawLex202300006049JBJ.

Industrial Property Law

398. Court order

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398. Court order

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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