Industrial Property Law

Originally based on copyright law, the seizure for infringement system was harmonized at European level by Directive No 2004/48 of 29 April 2004 (Art. 7), transposed by the Law of 29 October 2007 into Article L. 521-4, paragraph 2, of the Intellectual Property Code. Under this provision, any person with standing to bring an infringement action may have a seizure for counterfeiting carried out by a …

Seizure for infringement (saisie-contrefaçon)

Originally based on copyright law, the seizure for infringement system was harmonized at European level by Directive No 2004/48 of 29 April 2004 (Art. 7), transposed by the Law of 29 October 2007 into Article L. 521-4, paragraph 2, of the Intellectual Property Code. Under this provision, any person with standing to bring an infringement action may have a seizure for counterfeiting carried out by any judicial commissioner (commissaire de justice) by virtue of an order on ex parte application by the civil court. The seizure procedure can also be used to establish infringement of a registered or unregistered Community design (Art. L. 522-1 IP Code). As the extent of the infringement may be difficult to prove, seizure is intended to facilitate proof of the infringement, put an end to the harm or simplify the confiscation of the objects in question and their delivery in kind to the victim. However, seizure is not compulsory in order to bring an infringement action.

Seizures may involve a detailed description, with or without the taking of samples, or an actual confiscation of the allegedly infringing products or services, as well as any related documents. The latter may be seized even in the absence of the products or services in question. The court may also order the detailed description or actual seizure of the materials and instruments used to manufacture or distribute the allegedly infringing products or provide the allegedly infringing services (Art. L. 521-4, para. 3, IP Code).

The judicial commissioner is the only person empowered to carry out infringement seizure transactions. He may be assisted by experts appointed by the applicant (Art. L. 521-4, para. 2, IP Code). The expert must be independent, under penalty of invalidity of the seizure . The role of the expert must be clearly distinguished from that of the judicial commissioner, and limited to assisting the latter in his transactions. Failing this, the seizure report will be null and void . On the other hand, the presence of a second judicial commissioner, even one who is a partner in the same law firm as the first, and who carries out the seizure operations twice, invalidates the seizure on substantive grounds . The judicial commissioner may be assisted by a representative of the applicant, such as an employee of the rightholder's parent company, provided the seizure order expressly provides for this . The presence of the representative must be clearly distinguished in the order from the presence of an independent expert, to avoid any confusion of their respective roles .

Experts must be independent by virtue of the right to a fair trial enshrined in Article 6, 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

CA Bordeaux, 10 November 2021, LawLex202200000999JBJ, which annulled the official infringement seizure report on the grounds that the intellectual property attorney, whose role was to assist the bailiff in his description, had questioned the president of the appellant undertaking.

CA Paris, 11 January 2022, LawLex202200000308JBJ.

CA Paris, 9 April 1999, LawLex202200001393JBJ.

CA Paris, 15 December 2006, LawLex202200001493JBJ.

Industrial Property Law

508. Seizure for infringement (saisie-contrefaçon)

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

508. Seizure for infringement (saisie-contrefaçon)

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