Seizure of counterfeit goods is a specific legal process that allows the holder of an intellectual property right (such as a trademark, patent, or design) to record and gather evidence of counterfeiting before or during a dispute. It aims to establish the existence of illegal acts that infringe IP rights and to secure evidence to take legal action.
Seizure of counterfeit goods is based on the law:
- for patents and utility certificates, on Article L.615-5 of the Intellectual Property Code (CPI), which provides that the holder of a patent or plant variety certificate may ask the judge to seize the means of manufacture and counterfeit products.
- Article L.713-3 of the CPI extends the procedure to trademark owners to establish infringement and gather evidence.
- Article L.521-3 of the CPI, which provides similar provisions for designs.
The seizure of counterfeit goods is carried out by a bailiff, sometimes accompanied by technical experts, particularly IP attorneys, to preserve the evidence.
The seizure may be physical, involving the recovery of evidence such as samples of the product considered to be counterfeit, or descriptive, with the bailiff making a written description of his findings relating to the items considered to be counterfeit (this is often the case when the invention concerns an industrial installation or a large machine).
The items seized and the findings made during the seizure are then used to summon the alleged infringer, or to continue the action when it has already been initiated. They may also be used to assess damages.
It should be noted that, in general, seizure of counterfeit goods is a preventive measure that ensures the alleged infringement is real before any action on the merits is taken.