Bringing an infringement action
Industrial Property Attorneys play a key role in anti-infringement and infringement seizure operations. We fill the gap which may exist between the world of industry and technology and the legal and judicial world in order that all stakeholders are able to understand each other.
For better responsiveness and greater effectiveness in relation to disputes, we share our Paris offices with the law firm GREFFE. In addition, LE GUEN & ASSOCIÉS has an overseas network of colleagues and specialist lawyers, which means that arbitral or court proceedings can be brought before the competent local courts.
What is an infringement?
An infringement is the use of an intellectual property right (trademark, design, copyright, patent, software, integrated circuit or plant variety right) by producing copies without the authorisation of the owner of the right with a view to deceiving consumers by creating confusion between the original product and the infringing product.
For information:
contraventions of the rights of performing artists, of design creations and of computer software likewise constitute acts of infringement
The facts considered to constitute an infringement:
The following facts can be characterised as infringements (examples):
- Any reproduction, imitation, deletion or substitution of a trademark without the authorisation of the owner, as well as the possession, sale or importation of counterfeit products.
- The use of incorrect protected designations of origin or indications of geographical origin without being authorised to do so.
- The reproduction, representation or use of a work without the authorisation of its creator.
- The manufacture, sale or importation of patented products without authorisation.
- The manufacture, reproduction or importation of protected designs without authorisation.
How to protect against infringement?
To protect themselves and defend their creations against infringements, all creators must undertake the registration at the relevant offices of their creations – whether they be technical or artistic, commercial or non-commercial – by way of an Intellectual Property Attorney in order to be in the best possible position to bring actions before the competent courts.
However, it must be pointed out here that no formalities are provided in respect of copyrights: the mere fact of creating an original form confers copyright protection on its creator. The author will nevertheless need to provide proof of the existence of his or her right when seeking an infringement seizure.
How are contentious proceedings conducted?
In practice, to prove an infringement, a bailiff, equipped with his order, attends the premises in order to carry out an infringement seizure, accompanied by a relevant technical expert independent of the parties, a photographer and a representative of law enforcement.
The presence of a technical expert or of an Industrial Property expert is crucial for the purposes of the drafting of the written report of findings, a document which is essential in order to allow the judges to assess the infringement.
Overseas, our experience thus enables us to combat infringement, to bring court proceedings in the principal industrialised countries and to apply for customs seizures.
