Enforcement of IP rights in France
Trademark Infringement:
The trademark infringement cases are heard by the Commercial Chamber, since there is no jury and disputed issues are always decided by judges. Infringement proceedings are filed by the trademark owner. However, an exclusive licensee, except as otherwise stipulated in the licensing contract, can file infringement proceedings, if after notification, the trademark owner does not file such proceedings. A registered licensee is also entitled to participate in infringement proceedings filed by the trademark holder who has claimed compensation in respect of loss it has sustained on the grounds of unfair competition.
Discovery procedures do not exist in France. The parties are generally not required to provide evidence which might be detrimental to them. In order to help trademark right holder to prove infringement, the law provides for an efficient tool called an ex parte procedure through which the trademark owner request the court to appoint a bailiff for search and seizure of the samples of allegedly counterfeit items. The request is made by the trademark owner to the president of the civil courts of the first instance who may further permit the bailiff to search for any documents relating to the case. However, the defendant may petition to obtain the withdrawal of the bailiff if it has grounds to do so.
Once the trademark owner has acquired sufficient proof of the alleged infringement, it has two options to choose. The first to choose between court litigation and alternative dispute resolution such as arbitration or mediations and secondly to choose between civil and criminal proceedings provided the alleged infringer's bad faith is proven. However, criminal proceedings are initiated only where the infringement is blatant and the case clear cut i.e. where counterfeit goods are seized by the customs authorities. Usually, the trademark owner chooses to initiate civil proceedings in the court of the first instance which decides the course of action within 4-5 months keeping in view the urgency of the matter.
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