Saisie-contrefaçon with physical seizure (saisie réelle)

The saisie-contrefaçon réelle (with physical seizure) is the form of saisie-contrefaçon that authorises the judicial officer to physically take possession of products, documents or equipment. It differs from the descriptive saisie-contrefaçon, which is limited to a detailed description. In practice, the two forms are often combined in a single order.

What the saisie-contrefaçon réelle allows

Article L. 615-5 of the Intellectual Property Code authorises the physical seizure of the allegedly infringing products or processes, as well as of the equipment and instruments used to produce or distribute them. The judicial officer may thus take away samples, spare parts or computer media. However, physical seizure is not confiscation. Its purpose is to preserve evidence, not to punish.

The judge's authorisation

The saisie-contrefaçon réelle is ordered on an ex parte application, without adversarial debate. The judge nevertheless requires the application to justify the need for physical seizure. First, the applicant specifies the items targeted and their number. Second, it indicates what is to become of the seized items, generally sequestration. Third, the judge may make the measure conditional on the provision of security intended to compensate the seized party if the seizure is later held to be abusive.

Limits and challenges

The seized party may apply for the retraction of the order before the judge who issued it. Likewise, it may obtain the lifting of the physical seizure if it exceeds what was necessary for the evidence. In addition, the applicant must bring the action on the merits within the statutory period, failing which the seizure is automatically annulled. Litigation over physical seizure frequently concerns the scope of the items taken away and the protection of the seized party's trade secrets.

The firm prepares, executes and challenges saisies-contrefaçon, both physical and descriptive. See our page saisie-contrefaçon lawyer and the Intellectual Property Code on Légifrance.