In France, the saisie-contrefaçon is one of the most widely used means of obtaining evidence of the existence and extent of an infringement of intellectual property rights.
Therefore, evidence may be provided using all the means of proof permitted by civil law (or by criminal law if the proceedings are initiated before a criminal court), such as witness statements, presumptions, bailiff reports and expert investigations, but also by using the saisie-contrefaçon, a procedure specifically intended to obtain evidence of the infringement of intellectual property rights.
The authorisation to perform a saisie-contrefaçon is requested of the President of the tribunal de grande instance with jurisdiction over the territory in question, in ex parte proceedings.
Therefore, the saisie-contrefaçon ordered by the judge will benefit from the element of surprise; until the very last moment, the targeted person is not informed of what is going on and therefore cannot move or dispose of the evidence of its infringing activity (the result is the same when, in matters of copyright and related rights, a police commissioner, or even a judge, is requested to carry out a saisie-contrefaçon, see French Intellectual Property Code, Art.
The alleged infringer, in addition to arguing that the intellectual property right at issue is invalid, will naturally tend to put forward any and all arguments supporting the nullity of the saisie-contrefaçon, in order to destroy such a decisive item of evidence against it.
It is possible that an economic operator might be tempted, under the pretext of the alleged infringement of its intellectual property right, to misuse the saisie-contrefaçon procedure in order to enter the premises of a competitor and try to obtain some of its industrial and trade secrets.
2007-1544 of 29 October 2007,[7] this expression is used in almost all the articles of the French Intellectual Property Code relating to the saisie-contrefaçon to refer to the person entitled to request it.
The saisie-contrefaçon order handed down by the judge authorises the requesting party to dispatch the bailiff of its choice, possibly accompanied by an expert,[8] of its choice or by a member of the police force, to any place where proof of the infringement might be found, to make either a "detailed description" of the elements found in his report – a description that can be accompanied by the taking of samples – or a "physical seizure", i.e. the confiscation of the elements found and attached to the report, again drafted by the bailiff to record the operations performed.
In the particular field of copyright and related rights, illustrating the sometimes more protective than probative nature of the saisie-contrefaçon (see below France – Background), the President of the competent tribunal de grande instance may also order the following: the suspension of any manufacturing in progress involved in the unlawful reproduction of a work (or of the object of a related right) or in the violation of the protection or information technical measures; the seizure of monetary proceeds from any reproduction, performance or diffusion, by whatever means, of an intellectual work (or of the object of a related right) carried out in violation of the author’s rights or deriving from a violation of the protection or information technical measures; the handing over to a third party of the unlawful works or the products suspected of being unlawful in order to prevent that they be introduced or circulated in commercial channels (French Intellectual Property Code, Art.
At that time, only police commissioners and Justices of the Peace (the predecessors of instance court judges) were entitled to carry out a saisie-contrefaçon.
The saisie-contrefaçon therefore had a monitoring and even criminal and protective nature, certain traits of which have remained in practice (for example, deposit of the seized objects at the court clerk’s office).
Certain countries employed measures that could have a relatively similar practical effect (Italy,[14] Spain,[15] or even the United Kingdom with the Anton Piller orders).
The Community legislator took as a basis the French saisie-contrefaçon as well as the Anton Piller orders[16] in the United Kingdom to require the Member States to introduce into their legislation prompt and effective "measures for preserving evidence", and in particular to make it possible to obtain, upon request, "the detailed description, with or without the taking of samples, or the physical seizure of the infringing goods, and, in appropriate cases, the materials and implements used in the production and/or distribution of these goods and the documents relating thereto" (Dir.