Recall and destruction of infringing products

The recall of infringing products and their destruction are the corrective measures that follow a finding of infringement. Article L. 615-7-1 of the Intellectual Property Code allows the court, at the injured party's request, to order recall from the channels of commerce, definitive removal, destruction or confiscation for the benefit of the claimant, at the infringer's expense. These measures transpose Article 10 of Directive 2004/48 of 29 April 2004.

Conditions for recalling infringing products

The measure requires a decision finding infringement, an express request and a proportionality review. The court takes into account the seriousness of the infringement, the interests of third-party holders and whether the infringing element can be removed without destroying the whole product. The operative part specifies the references concerned, the recipients of the recall, the time allowed for compliance and, usually, a penalty payment for each day of delay.

Enforcing the measure

Recall requires the customers to be identified, which links it to the right of information and to the documents obtained through a saisie-contrefaçon. Destruction is recorded by a judicial officer or entrusted to a service provider at the infringer's expense, and its cost is added to the damages awarded. These measures are frequently carried out while an appeal is pending, which puts provisional enforcement at the centre of the debate, as for a preliminary injunction.

Corrective measures before the UPC

Article 64 of the Agreement on a Unified Patent Court provides for the same measures (recall from the channels of commerce, definitive removal, destruction) for all the territories covered by the decision. Article 80 adds publication of the decision at the infringer's expense. The geographical reach makes the recall of infringing products far heavier than before a national court, particularly for a unitary patent.

Key points

These measures reach the distribution chain, and therefore the commercial relationship, well beyond the amount of the damages. They are requested with a precise operative part and identified references. For the defendant, negotiation often concerns the scope and timing rather than the principle.

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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. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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