Last update: 25 March 2026 - consolidation and enrichment of the article (jurisdiction, application, additional measures)
Seizure for infringement is the main evidentiary tool used by intellectual property rights holders under French law. It enables evidence of an infringement to be collected by a bailiff authorised by court order - even before any action is taken on the merits. A procedure that is outside the scope of ordinary law, it is carried out without prior adversarial debate, which makes it highly effective but imposes strict formalities.
Counterfeit seizure in brief
Seizure for infringement is an investigative measure with evidentiary purposes. It aims to obtain proof of an infringement by means of a bailiff mandated by a court order. The Répertoire de procédure civile describes it as ’a precautionary measure that may be taken prior to an infringement action or simultaneously with it« (Xavier Daverat, Rép. pr. civ., »Saisie-contrefaçon«).
It is provided for in the Intellectual Property Code for all intellectual property rights: copyright (art. L. 332-1), designs and models (art. L. 521-4), patents (art. L. 615-5), plant varieties (art. L. 623-27-1) and trademarks (art. L. 716-4-7). Law 2014-315 of 11 March 2014 harmonised these regimes by bringing the provisions applicable to literary and artistic property closer to those applicable to industrial property.
Its use is not mandatory. An infringement action may be brought directly before the courts without prior seizure (Com. 14 Dec. 2010, no. 09-72.946). In practice, seizure remains the preferred method because it offers considerable investigative resources: entry into private premises, physical apprehension of suspect goods, detailed description of infringing objects, access to the documents of the alleged infringer.
The absence of contradiction, which makes the procedure effective, is enshrined in the TRIPS Agreement (art. 50) and Directive 2004/48/EC of 29 April 2004. On the other hand, the procedure is strictly regulated. The Court of Cassation punishes «disguised counterfeit seizures» carried out outside the legal framework (Civ. 1re, 28 Nov. 2012, no. 11-20.531).
Who should the application be submitted to?
Exclusive jurisdiction of the courts
Only the president of the court may authorise an infringement seizure (Com. 14 Sept. 2010). Neither the commercial court (TGI Lyon, 20 March 1995), nor the pre-trial judge (Civ. 1re, 5 Feb. 2014, no. 12-25.492), nor the enforcement judge has such jurisdiction.
More specifically, the application must be submitted to the president of the chamber specialising in intellectual property, and not to the president of the court in his general capacity. The Court of Cassation stated this in an important decision: a motion for seizure of patent infringement must be submitted to the president of the chamber to which this matter is assigned (Com. 1 Feb. 2023, no. 21-22.225).
Territorial specialisation
For patents, utility certificates, supplementary protection certificates and semiconductor topographies, only the Paris court has jurisdiction (COJ, art. D. 211-6).
For trademarks, designs and geographical indications, ten courts are designated: Bordeaux, Lille, Lyon, Marseille, Nanterre, Nancy, Paris, Rennes, Strasbourg and Fort-de-France (COJ, art. D. 211-6-1).
An attachment ordered by a non-specialised court will be annulled (TGI Paris, 14 Oct. 2016).
Preparing and obtaining the prescription
The application and its compulsory information
The application must be submitted by a lawyer (C. pr. civ., art. 846). It must precisely identify the applicant and his or her standing to act, the intellectual property title claimed, the legal grounds, the places targeted, the allegedly infringing products or processes and the measures sought.
The Court of Cassation requires that «the precise indication of the documents relied on constitutes a condition for the admissibility of the application» (Civ. 1re, 20 Oct. 2011, no. 10-19.615). Applicants must show that their title is in force (Com. 29 Jan. 2008). They must also point out the existence of legal proceedings in progress with the garnishee (Paris, 17 Sept. 2019).
Descriptive seizure or seizure in rem: the judge's discretionary power
Two types of measures coexist. Descriptive seizure involves describing the suspected objects in detail - with or without taking samples - and photographing, filming or photocopying items (CPI, art. L. 615-5). The judge is obliged to authorise the seizure if the applicant proves his or her rights: «the judge has the power to set the conditions and scope of the seizure, but not the power to refuse authorisation» (Com. 22 June 1999).
Seizure in rem presupposes the physical apprehension of assets. The judge may refuse it if he considers that it exceeds the evidentiary purpose (Douai, 4 Feb. 2002). It must be expressly authorised by the order (TGI Paris, 1 Apr. 1993). Seized assets are kept under seal (Com. 19 Nov. 2002, no. 00-15.203).
Since 2007, seizure can also be made of the equipment and instruments used to manufacture or distribute the infringing products (CPI, art. L. 615-5). In copyright law, specific measures are provided for: suspension of public performances, seizure of exploitation revenues, handing over of illegal works to a receiver (CPI, art. L. 332-1).
To balance this non-adversarial procedure, the judge may require the applicant to provide guarantees - a bank guarantee, deposit or escrow (CPI, art. L. 615-5).
Execution of the seizure by the bailiff
The central role of the judicial officer
The bailiff plays a decisive role. By virtue of the order, only the bailiff may act (Com. 3 March 2009, no. 08-11.236). He must be clearly identified in the minutes. If only the professional partnership is mentioned, without mentioning the bailiff, the minutes will be null and void (Civ. 1re, 31 Oct. 2012).
The applicant or his agents may not be present during the operations (Com. 8 July 2008, no. 07-15.075), even if the order so authorises (Paris, 17 March 2017). Their presence could influence the findings and infringe business confidentiality.
Assistance from experts and others
The bailiff may call on the services of experts for technical aspects, provided that the order so authorises (TGI Paris, 28 May 1980). These experts are not required to be registered on a list of legal experts (Paris, 11 March 2005), but their independence is required under article 6-1 of the European Convention on Human Rights (Com. 28 Apr. 2004, no. 02-20.330). They must limit themselves to providing technical assistance (Paris, 5 Nov. 2002) and may not take hard disks with them for analysis (Aix-en-Provence, 3 Sept. 2009).
Industrial property attorneys benefit from a presumption of independence guaranteed by their ethical rules (Com. 8 March 2005). The police may provide assistance in the event of resistance, even if the order does not specify this (TGI Paris, 29 May 1987).
Service of the order and time limits
Before commencing operations, the bailiff must give the person from whom the seizure is sought a copy of the order and the attached petition (CPI, art. R. 521-3, R. 615-2-1). Respect for the adversarial process «requires that a copy of the request and the order be given to the person to whom it is opposed prior to the execution of the investigative measures that it orders» (Civ. 2e, 10 Feb. 2011, no. 10-13.894). Simply reading the order is not enough (TGI Paris, 11 Jan. 1995).
Seizure takes place between 6 a.m. and 9 p.m. (C. pr. civ., art. 664). A reasonable period of time must elapse between service and the start of operations. Case law sets very short time limits: fifteen minutes (TGI Paris, 19 May 2017), ten minutes (Paris, 8 Feb. 2013), or even four minutes (Rennes, 14 March 2017). A one-minute time limit has been deemed insufficient (Bordeaux, 5 May 2014).
Strict adherence to the authorised perimeter
The bailiff must follow the terms of the order. Any extension may render the order null and void. The bailiff may only intervene with the designated person (TGI Paris, 21 Jan. 1994), only on the premises in question (Paris, 29 Oct. 1984) and only for infringement relating to the titles in question (TGI Paris, 28 Nov. 1986). He may not extend his investigations to trademarks other than those mentioned in the order (Com. 3 July 2019, no. 16-28.543).
Procedures and minutes
Seizure behaviour
The garnishee must assist the court (C. civ., art. 10). He may not obstruct the proceedings - for example by switching off the electricity to prevent an appliance from being switched on (TGI Paris, 16 Jan. 1989). Documents submitted voluntarily may be appended to the official report, even if they are not on the list of items that may be seized (TGI Paris, 27 Jan. 2009).
The bailiff may ask useful questions and obtain explanations from the distrainee (Paris, 15 Jan. 1997), without these exchanges degenerating into interrogation. He may not use stratagems such as pretending to be a client (Paris, 25 Jan 2013; Civ. 1re, 20 March 2014, no. 12-18.518). The operations may last several days (Paris, 30 May 2001), but once the minutes have been closed, the bailiff may not return to complete his investigations (Paris, 28 Feb. 2001).
The minutes: content and formalities
The minutes comply with article 648 of the Code of Civil Procedure: date, identity of the claimant, surname, first names, address and signature of the bailiff, identity of the addressee. Failure to identify the claimant renders the report null and void (Paris, 27 Feb. 1989). The persons accompanying the bailiff must be included (Paris, 1 Feb. 2006).
The bailiff must give the distrainee a copy of the official report. This can be done within a few days (Paris, 14 March 1991). The irregularity of the official report constitutes a substantive defect - and not a mere formal defect - which exempts the person invoking it from having to prove a grievance (Civ. 1re, 9 Apr. 2015, no. 14-11.853).
The evidential value of the minutes
The minutes are authentic until a forgery is recorded (Com. 4 Jan. 1984), including when the bailiff is assisted by an expert (TGI Paris, 22 Nov. 1996). This evidential value does not extend to information provided by the expert that the bailiff simply transcribed (Paris, 1 July 1977). Attached photographs, films and photocopies have strong probative value, provided they bear the bailiff's seal (Paris, 28 May 1985).
Deadlines after seizure
The infringement seizure is only a probationary stage. The rights holder must bring an action on the merits within twenty working days or thirty-one calendar days (whichever is longer), from the date of the official report (CPI, art. L. 332-1, 4°). This period, resulting from the law of 11 March 2014, replaces the former fifteen-day period.
Failure to comply with this time limit will result in the seizure being released and the objects seized being returned, at the simple request of the person from whom the goods were seized. All of the findings then become unusable in support of any subsequent action.
Additional measures
The right to information
Introduced by the 2007 law, the right to information enables the plaintiff to obtain, by court order, documents and information held by the defendant or third parties (CPI, art. L. 331-1-2, L. 521-5, L. 615-5-2, L. 716-4-9). The Court of Cassation has endorsed a broad interpretation: the judge may order «the production of information and items, of a commercial or accounting nature, likely to make it possible to determine the origin and extent of the infringement» (Com. 8 Oct. 2013, no. 12-23.349).
Customs intervention
Customs detention is an effective complement. The law of 11 March 2014 strengthened the resources of customs: the possibility of a «coup d'achat» and access to the premises of postal service providers and express freight companies. If the customs detention is released, the information obtained can only be used in a counterfeit seizure if this was requested before the release (Com. 18 Dec. 2019, no. 18-10.272).
Sources
- Intellectual Property Code: articles L. 332-1 to L. 332-4, L. 521-4, L. 615-5, L. 623-27-1, L. 716-4-7, L. 722-4; articles R. 521-3, R. 615-2-1, R. 623-51-1, R. 722-3
- Code of Civil Procedure: articles 10, 145, 454, 456, 495, 496, 497, 648, 664, 846
- Code of judicial organisation: articles D. 211-6 and D. 211-6-1
- Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights
- TRIPS Agreement of 15 December 1993, Article 50
- Law no. 2007-1544 of 29 October 2007 to combat counterfeiting
- Law 2014-315 of 11 March 2014 strengthening the fight against counterfeiting
- Cour de cassation, commercial division: 4 January 1984; 22 June 1999; 19 November 2002 (no. 00-15.203); 1 July 2003 (no. 01-10.807); 28 April 2004 (no. 02-20.330); 8 March 2005; 8 July 2008 (no. 07-15.075); 29 January 2008; 3 March 2009 (no. 08-11.236); 14 September 2010; 8 October 2013 (no. 12-23.349); 14 December 2010 (no. 09-72.946); 3 July 2019 (no. 16-28.543); 18 December 2019 (no. 18-10.272); 1 February 2023 (no. 21-22.225).
- Court of Cassation, 1st Civil Division: 6 July 2000 (no. 97-21.404); 20 October 2011 (no. 10-19.615); 28 November 2012 (no. 11-20.531); 31 October 2012; 11 December 2013 (no. 12-14.030); 5 February 2014 (no. 12-25.492); 20 March 2014 (no. 12-18.518); 9 April 2015 (no. 14-11.853).
- Court of Cassation, 2nd Civil Division: 10 February 2011 (no. 10-13.894); 17 March 2005 (no. 02-14.514)
- Appeal courts: Paris, 31 March 1977; 1 July 1977; 29 January 1991; 14 March 1991; 29 October 1984; 23 September 1998; 11 March 2005; 5 November 2002; 1 February 2006; 8 February 2013; 12 April 2016; 25 January 2013; 17 March 2017; 28 February 2001; 30 May 2001; 27 February 1989; 28 May 1985; 15 January 1997; 5 July 2019; 17 September 2019 - Nancy, 12 March 1991 - Aix-en-Provence, 3 September 2009 - Bordeaux, 5 May 2014 - Rennes, 14 March 2017 - Douai, 4 February 2002
- Courts: TGI Paris, 28 May 1980; 30 January 1998; 29 May 1987; 12 February 2010; 11 January 1995; 21 January 1994; 28 November 1986; 16 January 1989; 27 January 2009; 7 May 1997; 22 November 1996; 7 December 1990; 12 September 1990; 19 May 2017; 14 October 2016; 8 December 2017; 1 April 1993 - TGI Lyon, 20 March 1995; 29 August 1994 - TGI Évreux, 19 June 1998
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