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The French seizure-infringement as an element of proof

The seizure-infringement or inspection of property (saisie contrefaçon) is an element of proof of the infringement. This means is not compulsory.

The seizure-infringement on the basis of a filed design

The first step consists in filing a petition for an order with the President of the First Instance Court of the place of the seizure ; following this, the President issues the order necessary to conduct the seizure.

The President of the First Instance Court cannot refuse the seizure, but he has the possibility to restrict it to a descriptive seizure, in refusing an actual seizure of specimens.

The President of the First Instance Court can require from the petitioner security to be deposited. Such a security is required in all cases where a foreigner requests a seizure, but seems to be a cause of nullity only for the actual seizure according to the jurisprudence.

Progress of the seizure

A validity time and the place of the seizure can be explicitly mentioned in the order. Such a place is restricted by the territorial venue of the First Instance Court.

The seizure is conducted by a bailiff chosen by the petitioner ; the bailiff can be assisted by an expert and of a police officer.

The order can also authorize the petitioner to be present during the seizure.

The bailiff must lodge with the holder of the seized articles :

- copy of the order ;

- copy of the document recording deposit of the security ;

- copy of the report of the seizure.

The seizure can bear on all the objects of the infringement, as well as to the instruments which have been especially used for the manufacture of objects (moulds, plans, ...). Furthemore, it is possible to seize all documents allowing to report the proof of the extent of the infringement (accounting documents ...).

Within a time limit of 20 working days or 31 calendar days (whichever is longer) as from the date of the seizure, the petitioner must institute proceedings either in a civil action or in a criminal action. The absence of respect of this period will involve the nullity of the seizure (actual or descriptive) as element of proof, but not of the instance. The competency of the court for the action is not related to the First Instance Court which has issued the order. For instance, if both parties have made acts of trade, only the Commercial Court is competent.

The seizure-infringement on the basis of a copyright

Whether a design has been filed or not, it can be protected by copyright if it is original. This protection allows to profit by a very simple prosecution in case of infringement.

According to the provisions relating to copyright, the seizure is conducted upon simple requisition of a police officer by the author or his trustees (heirs, assignees, ...) without proving a previous authorization.

According to Article L 332-1 of the Intellectual Property Code, the seizure concerns "exemplars constituting an illicit reproduction" of the work, and not the mere imitation. The police officer is not a judge of the reproduction and cannot refuse the seizure. However, the seizure can be recognized as improper by the judge pronouncing judgement on the merits.

The seizure is most often restricted to specimens, but it is possible to ascertain the reality and the extent of the infringement, especially by the accounting documents or by hearing the spontaneous declarations of the responsible persons.

The seized articles are put under seal or are sealed up ne varietur. They can be filed at the prosecution department or at the clerk of the court of summary jurisdiction or merely left to the care of the person having undergone the seizure.

The petitioner has a time limit of 20 working days or 31 calendar days (whichever is longer) as from the seizure to refer the matter to a competent jurisdiction. Non complying with this time limit can involve the replevin of the seizure, but not the nullity of the seizure (the report could be used as an element of proof).

According to Article L 332-1 of the Industrial Property Code, it is also possible, on the basis of an order issued by the president of the First Instance Court, to conduct a seizure having much more extented effects, such as the suspension of the manufacture for a minimum term of 30 days.