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FRENCH HIGH COURT ( Cour de Cassation, 2ndCiv. Chamber)19 october 2006 : Comité National contre les Maladies Respiratoires et la Tuberculose(CNMRT) versus /JT International and Japan Tobacco

A recent judgement of the Court of 1st Instance of Lille (TGI) of May 3rd, 2007 drew my attention. One company was suing another one for counterfeiting acts and a seizure was made on the premises of the second one with the judge’s authorization.

The judge’s order authorized the Complainant to proceed with a seizure of the accounting documents. The TGI of Lille cancels this seizure based on the fact that the seizure of the accounting documents goes against the rights of the Defendant as it is authorized continue with a unilateral request from the Complainant whereby the Defendant cannot interfere. It therefore may gain access to confidential documents without having the absolute garantie that the Complainant is moved by legitimate interests.

The cancellation of the seizure is thus justified for ethical reasons (rights of the Defendant) and we would like to think that it is now a definitive position from the judges. On our side, we have recently been made aware of an application of this position in two cases where an authorization of seizure was requested from the judge :

– in the first one the judge authorized except for the seizure of accounting documents

– in the second one the judge refused the seizure and requested that it be presented again without the application for access to accounting documents. Although this judicial position is of course understandable in the interest of protecting the rights of Defendant, the seizure of accounting documents was nonetheless a good way to get elements on the importance of counterfeiting acts and origin of the counterfeiting products before the counterfeiter is able to hide the relevant information. One can therefore fear that this judicial position weakens victims of counterfeiting acts and reduces the possibility to ask for damages.

What is your opinion? 

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