Test purchase report (constat d’achat)

A test purchase report is the evidentiary procedure by which a judicial officer records the purchase of a disputed product, made by a third party in the officer’s presence or under the officer’s supervision, in order to establish the offer for sale and the marketing of a product alleged to be infringing. It rests on the principle that legal facts may be proved by any means (Article 1358 of the Civil Code) and on the statutory rules governing the judicial officer’s report. It allows evidence to be gathered before any trial without the court authorisation required for a saisie-contrefaçon.

Conduct of the operation

The judicial officer records the circumstances of the purchase: the place, the date, the identity of the third party purchaser, the product acquired, the price paid, the documents handed over, such as the till receipt or invoice, and the condition of the product. The officer then places the product under seal or photographs it so as to guarantee its integrity until the hearing. For online purchases, the officer describes the ordering process, confirmation and delivery, in compliance with the technical steps specific to online findings. The product acquired will then be compared with the patent claims, the trade mark or the work relied upon, where appropriate with the assistance of an expert.

Requirement of fairness and independence of the purchaser

The Court of Cassation holds that the third party purchaser must be independent of the applicant, a purchase made by an employee of the applicant, by a member of its counsel’s firm or by any person under its control tainting the report with unfairness and leading to its rejection. Nor may the judicial officer make the purchase personally, since the officer is prohibited from provoking the situation recorded. The operation must take place in premises open to the public or on an accessible website, without trickery or false identity and without inciting the seller to commit the act. Reports that disregard these rules are excluded from the proceedings, sometimes together with all the exhibits derived from them.

Usefulness in litigation

The test purchase report establishes the offer for sale, the sale and often the importation, acts which constitute trade mark infringement or patent infringement, and it identifies the seller, which facilitates service of the writ. It may serve as the basis for a formal notice, an application for a saisie-contrefaçon or an infringement action. It provides no information, however, on the volume of sales or the supply chain, which only a saisie-contrefaçon or the right of information can yield.

Key points

The test purchase report proves the offer and sale of a disputed product without court authorisation, provided the purchase is made by a third party independent of the applicant and its counsel, in the presence of a judicial officer who does not take part personally. Choose the purchaser with care, keep the product under seal and supplement the report with a saisie-contrefaçon where the extent of the acts has to be measured.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. When the question arises in a real case, the right moment is almost always before proceedings are issued.

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