Industrial Property Law

Infringement is a legal fact and, as such, can be proven by any means (Art. L. 521-4, para. 1, IP Code) . The burden of proof lies with the plaintiff in an infringement action, under the ordinary civil law of evidence, according to which it is incumbent on each party to prove the facts necessary for the success of their claim (Art. 9 Code of Civil Procedure) .
To establish proof of infringement, t …

Rules of evidence

Infringement is a legal fact and, as such, can be proven by any means (Art. L. 521-4, para. 1, IP Code) . The burden of proof lies with the plaintiff in an infringement action, under the ordinary civil law of evidence, according to which it is incumbent on each party to prove the facts necessary for the success of their claim (Art. 9 Code of Civil Procedure) .

To establish proof of infringement, the plaintiff may, independently of any court order, have recourse to investigative measures. In particular, he or she may call on witnesses, have recourse to an amicable expert opinion or to a judicial commissioner's (commissaire de justice ) report, such as a purchase report. The latter, which differs from the counterfeit seizure (saisie-contrefaçon), is not subject to the conditions set out in Article L. 521-4, paragraph 2, of the Intellectual Property Code. Its validity is not subject to any judicial authorization or prior information of the alleged infringer. It is valid even if it does not identify the purchaser, and even if the judicial commissioner has not personally observed the presence of the product in the shop . However, it must be executed in accordance with the principle of fairness in the administration of evidence. The purchase report is null and void, in particular, if it does not state that the persons who made the purchase recorded by the court enforcement officer were trainees in the consultancy firm used by the applicant undertaking . The purchase may only be made in a public place or, if it is made in a private place, it requires the authorization of the owner of the place, otherwise it will be invalid. Thus, the judicial commissioner may not enter a store, even one that is open to the public, to make a report of findings, without the owner's consent . He may enter a professional trade show, provided he has been duly authorized to do so by the show's organizers, and provided he confines himself to making his report from outside the stand in question and from the show's common areas . The purchase report must not constitute a disguised counterfeit seizure, which would be null and void if it did not comply with the procedural rules and guarantees .

CA Paris, 7 April 2015,, LawLex202300007896JBJ; CA Paris, 19 January 2016, LawLex202200001360JBJ, which admitted as evidence sales receipts issued by the counterfeiter of the clothing models in question; Paris, 3 December 1997, LawLex202200001176JBJ, which found infringement on the basis of photographs appended to the court commissioner's official report; CA Paris, 21 September 2012, LawLex202200002138JBJ, which considered as insufficient evidence very occasional testimonials from unidentified consumers of games retrieved from internet sites.

CA Paris, 16 January 2013, LawLex201300000058JBJ; Cass. crim., 3 September 2002, LawLex202200001953JBJ.

CA Paris, 18 October 2006, LawLex202200005189JBJ.

CA Paris, 18 October 2019, LawLex202200001642JB.

CA Paris, 29 January 2010, LawLex2010000727JBJ.

CA Paris, 27 September 2013, LawLex201400001204JBJ.

CA Paris, 2 December 2011, LawLex202200001370JBJ, which declares null and void the findings of a court enforcement officer having carried out a descriptive record at a third party's home circumventing the authorization of the court.

Industrial Property Law

506. Rules of evidence

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

506. Rules of evidence

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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