RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q4/FRA/1
20 August 1998
(98-3267)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  French
REVIEW OF LEGISLATION ON ENFORCEMENT
FRANCE1
This document contains the introductory statement presented by the French delegation, the
questions put to it and the responses given during the review of legislation on enforcement at the
Council meeting of 17-21 November 1997.2
_______________
I. INTRODUCTORY STATEMENT
Even before the TRIPS Agreement came into force, French legislation and regulations
complied with all the international instruments adopted on intellectual property.
This system, which already provided a high level of protection for intellectual property rights,
was further strengthened by Law No. 94-102 of 5 February 1994 which steps up the powers of the
customs administration and the police and constabulary and imposes harsher penalties in relation to
copyright, marks and industrial designs.
Holders of intellectual property rights may choose to initiate civil or criminal proceedings to
safeguard their rights.  In accordance with the TRIPS Agreements they may also take administrative
action by bringing cases before the customs administration.
These procedures are described in detail in reply to the questions put by the United States and
Japan.  The following is a brief review of certain specific provisions that are intended to provide
holders of intellectual property rights with simple, rapid and effective protection.
Measures relating to the gathering of evidence: Article 50:1(b) of the TRIPS Agreement
The judge may, at the simple request of the holder of a right or of a licence, empower any
bailiff to carry out, at any place, a detailed description of the allegedly infringing articles or even to
effect their seizure.
The order is rendered immediately on sight of the plaintiff’s title.
                                                     
1For details of the laws and regulations relating to the examination fields notified by France under
Article 63:2 of the Agreement, reference should be made to document IP/N/6/FRA/1.
2Minutes of the meeting are contained in document IP/C/M/16.IP/Q4/FRA/1
Page 2
This measure is therefore possible in the case of marks, patents and industrial designs
(Articles L.615-5 and L.716-7 of the Intellectual Prope rty Code ("CPI")) and in the case of copyright
where judges may also order seizure and even suspensive measures.
Regarding patents, the new Article L.615-5-1 of the CPI (Law No. 96-1006 of
18 December 1996) specifies, in accordance with Article 34 of the Agreement, that when the subjectmatter of the patent is a process, the court may order the defendant to prove that the process to obtain
an identical product is different from the patented process.
Provisional remedies
In addition to action through the normal channels of law, the holder of a right may initiate
urgent proceedings (proceedings in chambers) before the judge of the court in order to apply for aprovisional prohibition order that is immediately enforceable (Article L.615-3 of the CPI for patents,
Article L.716-6 of the CPI for marks).   The judge may order any prohibition measures, accompanied
by a fine, or may even make the continuation of the litigation subject to the furnishing of security.
There are two limits on such proceedings:  they must be initiated within a short period and there must
appear to be serious grounds for action on the merits of the case.
Remedial action
Civil judges weighing the merits of the case, in addition to ordering prohibition measures,
may order publication of the judgement and confiscation of goods and their destruction.   They alsoaward damages.
Criminal judges may order the same measures and impose deterrent fines (up to F 1,000,000)
and terms of imprisonment.
II. REPLIES TO THE QUESTIONS PUT BY JAPAN
1. Please indicate the "competent authoritie s" stipulated in Article 51 of the TRIPS
Agreement.
Under Articles L.335-10, L.521-7 and L.716-8 of the CPI, the customs administration may, at
the written request of the holder of a copyright or a related right, the owner of a deposited industrial
design or a registered mark, or the beneficiary of an exclusive right of exploitation, withhold in the
course of its inspections goods alleged by that holder, owner or beneficiary to be infringing that
copyright or related right, industrial design or mark for which he has obtained registration or with
regard to which he enjoys an exclusive right of use.
Patents are clearly excluded, however, from this type of measure and no such provision is
made for new plant variety certificates or for semi-conductor layout designs.
The authority competent to order such measures is the customs administration, one of whose
services, the Direction nationale du renseignement et des enquêtes douanières (DNRED) (National
Directorate of Customs Information and Enquiries), receives and examines applications.
2. Please explain whether "proceedings leading to a decision on the merits of the case"
stipulated in Article 55 of the TRIPS Agreement, are judicial or administrative.
Proceedings leading to a decision on the merits of the case as stipulated in Article 55 of the
TRIPS Agreement cannot be other than judicial.IP/Q4/FRA/1
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Article L.335-10 of the CPI on artistic and literary property states in this respect that:
"The withholding measure shall be lifted as of right where the plaintiff fails, within
ten working days following notification of the withholding of the goods, to prove to the
customs services:
- Either that interim measures have been decided by the President of the Court of First
Instance;
- or that he has instituted proceedings before the civil court or the court of
misdemeanours and has provided the necessary guarantees to cover his liability in the
event of the infringement claim subsequently being considered unfounded. "
Identical measures are set out for industrial designs in Article L.521-7 of the CPI and for
marks in Article L.716-7 of the CPI.
3. Are there any ways other than  the application stipulated in Articles 51 and 52 of the
TRIPS Agreement (hereafter referred to as "t he Application") which enable a right holder to
request the competent authorities to suspend th e release of the goods which infringe IPRs or
which are suspected to infringe IPRs?
In the case of marks, Law No. 94-102 of 5 February 1994 establishes a total ban on imports or
exports of goods bearing an infringing mark (Article L.716-8 to 12 of the CPI).  Article L.716-9 of theCPI sets out this ban, Article 428 of the Customs Code defines the criteria for accusations of customs
offences (under this Article, any violation of the provisions on prohibited imports under all customs
regimes is deemed to be import or export of banned goods) and Article 414 of the aforementioned
Code establishes the penalty for this offence.
In the case of artistic and literary property, the third paragraph of Article L.335-2 of the CPI
prohibits the import or export of counterfeit works.
Article L.335-4 of the CPI punishes any import or export of phonograms or videograms that
infringe the rights of the producer or performer.
There is no such express provision in the case of industrial designs.In accordance with the principle of artistic unity, however, industrial designs may benefit
from the protection accorded to artistic and literary property.
4. Please explain what term your country regards  as "a reasonable period within which the
competent authorities shall inform the applic ant whether or not they have accepted the
Application" stipulated in Article 52 of the TRIPS Agreement.
The reasonable period stipulated in Article 52 is assessed in concreto.
Article 3.5 of Council Regulation No. 3295/94 of 22 December 1994, directly applicable in
the Member States of the European Union, states that:
"The competent customs service with which an application drawn up pursuant to paragraph 2
has been lodged shall deal with the application and shall forthwith notify the applicant inwriting of its decision.IP/Q4/FRA/1
Page 4
Where that service grants the application, the service shall specify the period during which the
customs authorities shall take action.   That period may, upon application by the holder of the
right, be extended by the service which took the initial decision."
Pursuant to this Regulation, Article 4 of the Order of 6 February 1995 empowers the
Direction nationale du renseignement et des enquêtes douanières (National Directorate of Customs
Information and Enquiries) to examine applications and to inform applicants or their agents of the
action that is to be taken.
5. Please explain the term during which the Application is effective.
Pursuant to Article 5 of the Order, an applicat ion to withhold goods is valid for one year, and
can be extended following a letter from the applicant or his agent.
6. Please explain whether a right holder is obliged to pay any fees to lodge the Application.
Article 3.6 of the above-mentioned Regulation states in particular that:
"Member States may require the holder of the right, where his application has been granted or
where action … has been taken pursuant to Article 6(1), to provide a security … to ensure
payment of the costs incurred in accordance with this Regulation, in keeping the goods under
customs control pursuant to Article 6."
In domestic law, there is no provision under which it is mandatory for applicants to provide
security prior to any customs withholding operation.
In France, applications for action by the holder of the right can in, in practice, be lodged free
of charge.
The applicant must, however, initiate proceedings before the civil or criminal courts within
ten days in order to maintain withholding operations in force.
These courts have the power to order the applicant to provide security in order to cover any
injury to the alleged infringer.
7. Please indicate provisions of laws and ordinances which prescribe the "proceedings
leading to a decision on the merits of the case " stipulated in Article 55 of the TRIPS Agreement.
And please summarize their contents.
The rules applicable here are those of general law as set out in the New Code of Civil
Procedure for civil actions and in the Code of Criminal Procedure for criminal actions.
Proceedings before the Court of First Instance, which is the only court competent to hear
disputes concerning patents and marks, are governed by Articles 750 et seq.  of the New Code of Civil
Procedure.
8. Please explain the specific procedure, if any, to be applied to the goods which are not
evident whether or not they infringe IP Rs, in Article 55 of the TRIPS Agreement.
Article L.335-10 of the CPI, like Articles L.521-7 and L.716-8 of the CPI, states that
withholding measures are lifted as of right where the plaintiff fails, within ten working days following
notification of the withholding of goods, to prove to the customs services:IP/Q4/FRA/1
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- Either that interim measures have been decided by the President of the Court of First
Instance;
- or that he has instituted proceedings before the civil court or the court of
misdemeanours and has provided the necessary guarantees to cover his liability in the
event of the infringement claim subsequently being considered unfounded.
Failure by the applicant to initiate proceedin gs within a short period provides grounds for
considering that the allegations are not entirely serious.
Regarding industrial designs in particular, the second paragraph of Article 7 of the
EC Regulation, in accordance with the Article 53:2 of the TRIPS Agreement, states that:
"In the case of goods suspected of infringing design rights, the owner, the importer or the
consignee of the goods shall be able to have the goods in question released or their detention
revoked against provision of a security, provided that:
- The customs service or office … has been informed, within the time-limit referred to,
that the matter has been referred to the authority competent to take a substantive
decision;
- on expiry of the time-limit, the authority empowered for this purpose has not imposed
interim measures;
- all the customs formalities have been completed."In this case, however, the holder of the allegedly infringing goods must provide security in
order to cover any injury that might be suffered by the petitioner.
9. Please explain the responsibility that th e competent authorities and other related
authorities take to the right holders when they fail to suspend the release into free circulation of
goods which infringe IPRs with regard to the suspension based on the Application or the
Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
It should firstly be noted that the customs administration does not have powers to assess what
action should be taken in respect of the application lodged by the right holder.
Once the necessary documents have been supplied by the applicant, the customs
administration carries out the withholding operations (see the reply to question 21).
The courts then decide whether or not there has been infringement.
If the customs administration were to refuse, however, the applicant could possibly lodge an
appeal to a higher authority (the Minister) or an appeal to the administrative court for enforcement.
In this latter case, the only appeal to the administrative court that it would seem possible to
envisage would be an appeal on the grounds of a manifest error of assessment.
Bearing in mind, however, that customs withho lding operations are always urgent, these
appeals are no more than theoretical.
The right of the customs administration to seize goods at its own initiative is recognized by
Article 4 of the above-mentioned EC Regulation:IP/Q4/FRA/1
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"Where, in the course of checks made under the customs procedures … and before an
application by the holder of the right has been lodged or approved, it appears evident to the
Customs Office that goods are counterfeit or pirated, the customs authority may, in
accordance with the rules in force in the Member States concerned, notify the holder of the
right, where known, of a possible infringement thereof.  The customs authority shall be
authorized to suspend release of the goods or detain them for a period of three working days
to enable the holder of the right to lodge an application for action in accordance with
Article 3."
As this Article provides the customs administration with no more than an opportunity to
withhold goods, it would not seem possible to envisage holding it liable.
10. Please explain the responsibility that th e competent authorities and other related
authorities take to the right holders when they examine goods which infringe IPRs and
nevertheless release them into free circulation with regard to the su spension based on the
Application or the Ex Officio Action stipul ated in Article 58 of the TRIPS Agreement.
As the customs administration does not have sole powers to decide which withholding
measures to order, it could be held liable only in the case of a manifest error of assessment.
The administration could be held liable, however, if it were to accept an application to
withhold goods and then released them or took no action to withhold them (Article 9.1 of the
EC Regulation).
11. Please explain the responsibility that th e competent authorities and other related
authorities take to the importer s when they suspend the release into free circulation of goods
which do not infringe IPRs with regard to the suspension based on the Application or the
Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Article 9.2 of the EC Regulation states that the customs administration is liable only if goods
that prove not to be counterfeit have been unduly withheld.
Here again, however, the holder of the withheld  goods must provide proof of a manifest error
by the customs services.
In order to preclude such prejudice, moreover, the customs administration may require the
right holder to provide security to cover cases where the courts find that the goods are not counterfeit
(Article 3.6 of the above-mentioned EC Regulation).
In any event, only the administrative courts are competent to assess whether or not the
administration is liable.
12. Is the right holder informed of identities  of the importers and consignors when the
competent authorities "suspend" the goods which infringe on IPRs or which are suspected to
infringe IPRs, as well as the case where the ri ght holder is informed of identities of the
importers and consignors stipulated in Article 57 of the TRIPS Agreement?
Articles 6.1(2) and 8.3 of the EC Regulation authorize the Customs Office to inform the
holder of the right, upon request, of the names and addresses of the consignor, of the importer or
exporter and of the manufacturer of the goods found to be counterfeit or pirated and of the quantity ofthe goods in question.
In domestic law, Articles L.335-10, L.521-7 and L.716-8 of the CPI all state that:IP/Q4/FRA/1
Page 7
"For the purpose of the institution of the legal proceedings referred to in the foregoing
paragraph, the plaintiff may require the customs administration to communicate the names
and addresses of the sender, the importer and the consignee of the goods withheld, or of the
holder thereof, and also the quantity thereof, notwithstanding the provisions of Article 59 bis
of the Customs Code concerning the professional secrecy to which officials of the customsadministration are bound."
Under Article 4 of the above-mentioned EC Regulation, the Customs Office may act as of
right, regarding both copyright and related rights and marks and industrial designs, when it is evident
to this office that the goods are counterfeit or pirated.
In such cases, the customs administration notifies  the holder of the right, where known, of a
possible infringement of this right.
The customs administration may detain the goods for a period of three days to enable the
holder of the right to lodge an application for action with this administration (Article 4 of the
EC Regulation).
In domestic law, the customs administration may act on its own initiative solely in respect of
marks (Article L.716-9 b of the CPI), either in the context of customs controls throughout France or
when verifying goods subject to restrictions on circulation within the European Community
(Article 38.4 of the Customs Code).
In such cases, the owners of the marks are informed only of the total volumes of each article
seized (Circular of 21 March 1995, No. CRIM-95-9, from the Minister of Justice concerning the
prevention of infringement of marks).
Article L.521-7 and the final paragraph of Article L.716-8 of the CPI contain the same
provision for industrial designs and marks respectively.
13. Please explain the measures to protect conf idential information in the course of the
inspection stipulated in Article 57 of the TRIPS Agreement.  And please indicate provisions of
laws and ordinances which prescribe such measures.
Reference needs to be made here to the legislative and regulatory rules applicable to customs
matters.
Customs officers are bound by Article 59 bis of the Customs Code to professional secrecy.
Articles L.335-10, L.521-7 and L.716-8 of the CPI make provision for a partial lifting of
professional secrecy in the case of suspension of the release of allegedly infringing goods.
The right holder may be informed only of the names and address of the consignor, the
importer, the holder and consignee of the goods withheld and of their quantity.
14. Please explain the procedures of detentions and seizures to be ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
If the application lodged by the right holder is accepted, the customs administration takes the
necessary steps to withhold the allegedly infringing goods and immediately notifies both the applicant
and the holder of these goods thereof (Article L.335- 10 of the CPI for literary and artistic property,
Article L.521-7 of the CPI for industrial desi gns, Article L.716-8 of the CPI for marks).IP/Q4/FRA/1
Page 8
The applicant then has ten working days from notification of the withholding of the goods to
prove to the customs services:
- Either that interim measures have been decided by the President of the Court of First
Instance;
- or that he has instituted proceedings before the civil court or the court of
misdemeanours and has provided the necessary guarantees to cover his liability in the
event of the infringement claim subsequently being considered unfounded.
15. Please explain the procedures to appeal aga inst any decisions ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
Appeals against rejection of the withholding application
If the service of the customs administration that  is examining the application from the right
holder considers that the application must be refused, grounds must be given for this adverse decision.
The applicant may appeal to the administrative courts.
Appeals against the withholding decision
Depending on the procedure used, the holder of the goods seized may appeal against the
measures ordered against him to the civil or criminal court before which the case was brought.
16. Please explain the basis for calculating the s ecurity or equivalent assurance stipulated in
Article 53 of the TRIPS Agreement that the competent authorities may require an applicant
when they suspend the relea se into free circulation.
The security that may be claimed from the applicant must be enough to cover the prejudice
suffered by the holder of the goods seized, in accordance with the terms of Article 1382 and 1383 of
the Civil Code.
This is set out in Article 3.6 of the EC Regulation.
The latter states that Member States may require the holder of a right to provide a security to
cover any liability on his part vis-à-vis  the persons involved in a suspension of the release of goods
where the procedure is discontinued owing to an act or omission by the holder of the right or where
the goods in question are subsequently found not to be counterfeit.
Articles L.335-10, L.521-7 and L.716-8 of the CPI state, moreover, that the holder must, if
withholding of the goods is to be continued:
"prove to the customs services either that interim measures have been decided or that he has
instituted proceedings before the civil court or the court of misdemeanours and has provided
the necessary guarantees to cover his liabil ity in the event of the infringement claim
subsequently being considered unfounded".
This security does not have to be deposited with the customs administration, but when
proceedings are brought before the civil or criminal court (during the proceedings described in reply
to question 14).IP/Q4/FRA/1
Page 9
17. Please explain who shall pay the cost of detentions based on Article 51 of the TRIPS
Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
The costs of destroying infringing goods (Article 8.1 of the Regulation) can in no case be
borne by the exchequer and therefore have to borne by the infringer and, failing him, by the applicant.
18. Please explain what kind of cases are regar ded as "the exceptional circumstances" in
which the competent authorities may allow re-exportation of counterfeit trademark goods
stipulated in Article 59 of the TRIPS Agreement.
This eventuality is not envisaged as such in the above-mentioned EC Regulation and has not
been incorporated into French law.
19. Please indicate names of laws and ordinances and their provisions in which the
suspension of the release of goods which infringe  IPRs or which are suspected to infringe IPRs
is prescribed, as stipulated in Article 51 of the TRIPS Agreement.
Council Regulation No. 3295/94 of 22 December 1994, enacted by Commission Regulation
No. 1367/95 of 16 June 1995, sets out the rules applicable within the European Union to the
withholding of counterfeit or allegedly infringing goods.
In domestic law, this procedure is set out in Articles L.335-10 and R.335-1 of the CPI for
copyright, Articles L.521-7 and R.521-1 of the CPI for industrial designs and Articles L.716-8 andR.716-1 of the CPI for marks.
Mention should also be made of the Order of 6 February 1995 setting out the form in which
the written application for action from the holder of an intellectual property right is to be presented to
the customs administration.
Patents are clearly excluded from this type of measure and there is no such provision for new
plant variety certificates or for semi-conductor layout designs.
Articles 215 (applicable to goods from third countries) and 38.4 and 215 bis of the Customs
Code (concerning Community goods) allow suspensi on of the marketing of infringing goods within
the customs territory.
French legislation does not exclude any customs regime from this provision, not even
infringing goods imported in travellers’ luggage.  Persons in possession of goods of French,
Community or third country origin presumed to be infringing goods must prove that they are
authentic.
The exhaustion of rights within the European Union invalidates the application of measures to
suspend marketing provided that the goods for which such an application has been made are not
infringing goods or have been put up for sale on the Community market with the consent of the owner
of the rights.
20. Please indicate which IPRs are protected based on the Application by a right holder.
The procedure to withhold allegedly infringing goods may be used for copyright and related
rights, industrial designs and marks.
Officers of the Direction générale de la concurrence, consommation et répression des fraudes
(DGCCRF) (Directorate-General of Competition, Consumer Protection and the Repression of Fraud)IP/Q4/FRA/1
Page 10
are authorized to report and investigate mark infringement offences (Article 9 of Law No. 89-1008 of
31 December 1989).  The DGCCRF cannot take action in respect of infringements of patents and
industrial designs, unless the nature of this infringement means that it can be punished on other
grounds, such as fraud or misleading publicity, discovered by the investigators.
Patents are clearly excluded from this type of measure.
21. Please explain kinds and contents of documents which shall be provided by the
applicant to lodge the Application.
In order to establish a presumption of infringement to the customs administration, the holder
of the intellectual property right must provide:
- in the case of artistic and literary property , a written application by the holder of a
copyright or a related right, together with proof of his right and a description of the
allegedly infringing goods (Articles L.335-10 and R.335-1 of the CPI).  In the case of
copyright or related rights: "the application may be made prior to the import into
France of the allegedly infringing goods.  In this case it is valid for one year and maybe extended";
- in the case of industrial designs , the object and national number of the industrial
design concerned, together with an identity certificate issued by the National Institute
of Industrial Property and a description of the allegedly infringing goods to which the
withholding application relates (Article R.521-1 of the CPI);
- in the case of marks , the designation and registration number of the mark concerned
and a description of the allegedly infringing goods to which the withholding
application relates (Article R.716-1 of the CPI).
The Order of 6 February 1995 also states that:
"The application to the said administration must include … :
(b) A description of the authentic goods, accompanied by the following:
- A photograph of the products and/or any other graphical reproduction of
protected elements;
- where possible, a sample of the product(s);- details of the place(s) of manufacture of the goods;- the names of companies authorized to import the goods.
(c) A description of the allegedly infringing goods accompanied, where possible, by the
following:
- A photograph or any other graphical reproduction;- a sample of the product(s);- the country or countries of origin and/or provenance;IP/Q4/FRA/1
Page 11
- the name and address of manufacturers, distributors, consignees or importers;
- the mode of transport used;- where appropriate, a copy of legal rulings already given in respect of the right
infringement cited by the holder."
The information requested is not exhaustive.  The applicant may attach any supplementary
information in support of his application (for instance copies of prior legal rulings in respect of similar
cases).
The customs directorate will then have evidence enabling it to rule whether or not there has
been infringement.
22. Please explain the remedies which the judicial authorities order regarding a copyright
and other related rights, patents, industrial designs, trademarks and layout-designs
(topographies) of integrated circuits, including injunctions, damages, expenses, destruction or
other disposal of infringing goods and ma terials/implements for their production.
(a) Penalties ordered by courts weighing the merits of the case
Courts may order the following penalties:
(i) Injunctions
The purpose of remedies or civil penalties is to end the infringement and compensate
for the prejudice caused.  The judge must first of all prohibit any continuation of the
infringing acts.  Judges may add injunctions to their prohibition measures in order to
ensure that their decisions are carried out.
Fines, which are a special form of injunction, are much more commonly used as a
provisional measure .
There are no special provisions on intellectual property rights.  Consequently, the
general rules of law on injunctions apply: Chapter I of Title IV of the NCPC dealswith injunction procedures, in particular mandatory injunctions, in Articles 1425-1 to
1425-9.
Article 1425-4 states in particular that:
"Where the judge considers that, on the basis of the documents produced, there are
grounds for the demand, he shall issue an order of mandatory injunction that is notsubject to appeal.  He shall define the purpose of the obligation and the time-limit and
conditions within which it must be carried out.  Moreover, the order shall specify the
place, date and time of the hearing at which the case will be considered, unless the
plaintiff states that the injunction order has been carried out."
According to Article 1425-7 of the NCPC:
"Where the mandatory injunction has been carried out within the time-limits set, the
plaintiff shall inform the clerk of the court accordingly.  The case shall then be
withdrawn.  In the absence of such information and if the plaintiff is not present at theIP/Q4/FRA/1
Page 12
hearing without justifying his absence, the court shall declare the mandatory
injunction to be null and void ...".
In the case of geographical indications and designations of origin, Article 421-3 of the
Consumer Code allows a criminal court hearing a case brought by a consumers’
association, after having declared the defendant guilty:
"to postpone sentencing and to call on the person convicted, on pain of a fine if need
be, to comply with the terms established by the court for the purpose of terminating
the unlawful action, within the time-limit set ...".
(ii) Damages
Please see the reply to the following questions.
(iii) Destruction or other disposal of infringing goods and materials/implements for their
production
Case law in the Court of Cassation (First Civil Chamber, 3 November 1988,
No. 86-16.538) reaffirms that a confiscation measure "can be ordered only in the
cases prescribed by law."
In the case of patents, Article L.615-7 of the CPI, included in section 1 on civil
penalties, states that:
"At the request of the injured party, and where such measure is necessary to prevent
continuing infringement, the Court may order the confiscation, in favour of the
petitioner, of the articles recognized as constituting an infringement, which are the
property of the infringer, on the date of entry into force of the prohibition and, where
appropriate, of the devices or means used  specifically for the purpose of committing
the infringement.  The value of the articles confiscated shall be taken into account
when computing the compensation to be aw arded to the beneficiary of the decision."
In the case of artistic and literary property, judges are empowered, pursuant to the
general rules of law, to order all appropriate compensation measures in kind.  Theymay therefore order the destruction or disposal of the goods or any other measure
such as the publication of sentences.
Under Article L.335-6 of the CPI, civil courts may, moreover, order the seizure
provided for in criminal law.  According to legal precedents, this measure may be
ordered by the civil courts separately from any criminal penalties.  Civil courts may
therefore order the confiscation of all or part of the proceeds obtained by reason of theinfringement, as well as the confiscation of all phonograms, videograms, articles and
copies that are infringing or have been unlawfully reproduced and of the equipment
specifically installed for the purpose of committing the offence.
(iv) All other remedies
Publication of sentences may be ordered according to ordinary procedural rules.
The decision is published in a newspaper with broad circulation or in the professional
press.  Publication costs are borne by the infringer.IP/Q4/FRA/1
Page 13
In the case of geographical indications and designations of origin, Article L.421-9 of
the Consumer Code states that:
"The competent court may order that the verdict pronounced should be
disseminated to the public by all appropriate means ... .
The cost of dissemination shall be borne by the losing party, the party
convicted or the association that instituted the civil action if the proceedings
that they instituted have been dismissed."
(b) Provisional measures
Industrial designs, geographical indications and designations of origin, layout designs, new
plant variety certificates
There is no special prohibition measure.  Nevertheless, the general powers of judges in
chambers to take injunction measures apply.
In the case of an ordinary law action in chambers, a judge sitting in chambers is competent to
order any preventive measures necessary to prevent imminent injury that may be caused to the owner
of the right.
Patents
There is no confiscation measure in respect of patents.  Article L.615-3 of the CPI provides
for a provisional prohibition measure, under penalty of a daily fine, or the furnishing of security to
indemnify the patent owner.
Marks
Both prohibition and confiscation may be ordered.  Regarding the former, Article L.716-6 of
the CPI is based on Article L.615-3 of the CPI; Article L.716-8-1 provides for seizure after the
infringement caused by the infringing goods and any material and equipment used to manufacture
them has been recorded.
Disclosure of trade secrets
A judge sitting in chambers may not take any measures in this particular case (although he
may be able to do so in the context of other types of unfair competition proceedings where the offence
consists in producing objects).
Literary and artistic property
Provisional measures may be ordered in respect of artistic and literary property in the context
of an infringement seizure procedure.
In relation to copyright:
The first paragraph of Article L.332-1 of the CPI allows police officers to seize:
"copies constituting an unlawful reproduction of the work".IP/Q4/FRA/1
Page 14
The second paragraph of this Article also states that:
"If seizure will have the effect of delaying or suspending public performances which
are in progress or which have already been announced, special authorization must be
obtained from the President of the Court of First Instance, in an ex parte  order.  The
President of the Court of First Instance may also order, in the same form:
1. Suspension of all manufacture in progress serving the unlawful reproduction
of a work;
 
2. seizure, whatever the day or time, of the copies constituting an unlawful
reproduction of a work, whether already manufactured or in the process of
manufacture, of the proceeds obtained and of copies unlawfully used;
 
3. seizure of receipts from any reproduction, performance or dissemination, by
any means whatsoever, of a work of the mind, carried out in violation of the
author’s rights."
In relation to software:
The first paragraph of Article L.332-4 of the CPI provides that infringement seizure:
"shall be carried out under an ex parte  order by the President of the Court of First
Instance.  The President shall authorize distraint where appropriate." The third
paragraph allows police officers, at the request of any author of protected software or
his successors in title, to conduct a descriptive seizure of the infringing software.
In connection with related rights:Article L.335-1 of the CPI provides that:
"As soon as offences under Article L.335-4 ... have been established, the competent
police officers may effect seizure of the unlawfully reproduced phonograms andvideograms, of the copies and articles manufactured or imported unlawfully and of
the equipment specially installed for the purpose of such acts."
In the case of an ordinary law action in chambers, the judge sitting in chambers is competent
to order any preventive measures necessary to pr event imminent injury that may be caused to the
author.
French legislation also includes a range of criminal measures that will be examined in
question 26.
23. Please explain whether the amount of da mages which judicial authorities order the
person who infringes IPRs to pay the right holder is adequate compensation for the injury theright holder has suffered, and what criteria and the way for calculation to decide the amount for
compensation.
The compensation that French courts award for infringement is governed by the provisions of
Articles 1382 and 1383 of the Civil Code.IP/Q4/FRA/1
Page 15
The philosophy and case law both confirm that the indemnity must compensate for the whole
of the prejudice suffered, but only the prejudice suffered and not profits unlawfully earned which
cannot be confiscated for the benefit of the victim of the infringement.
As legal precedents show, evaluating the indemnity comprises two elements: determination of
the volume of infringement and assessment of the injury caused.
The judge weighing the merits of the case has sole power to make this assessment within the
limit of the amount set out in the application lodged by the parties.
It should be noted that damages do not constitute fines.In the case of artistic and literary property, confiscation has to be taken into account when
computing the damages to be awarded to the victim of the infringement.  Article L.335-7 of the CPI
states, in the case of an infringement offence, that:
"... the equipment, the infringing articles and the receipts that have been confiscated shall be
handed to the victim or his successors in title to compensate them for the prejudice they havesuffered; the remaining indemnity, or the entire indemnity if there is no confiscation of
equipment, infringing articles or of receipts,  shall be settled through ordinary channels."
The Government does not at present conduct a statistical survey from which figures can be
drawn.
[Follow-up question from Japan]
With respect to France’s response to question 23 from Japan, France states that
indemnity must compensate for the prejudice su ffered but only the prejudice suffered and not
profits unlawfully earned in the answer to the Checklist IP/N/6/FRA/1 No. 5 for damages in
respect of the infringement of IPRs.  Please describe the principle and the way in which the
prejudice suffered is calculated, and please explain whether or not the damages include the
holder’s lost profits, the infringer’s profits from the unlawful utilisation of the IPR or
reasonable royalty for utilisation of the IPR.
The judge is responsible for setting the amount of damages.  He has to compensate the whole
of the prejudice suffered, assessed, on a case-by-case basis, from the documents produced by the
parties.  If he finds these documents to be insufficient, the judge may also order an expert report in
order to obtain accurate information on the extent of the infringement and on the profits that the
infringer has obtained from it.
In awarding compensation for prejudice suffered as a result of infringement, the French courts
therefore take account of these elements.
24. Please explain whether the amount of da mages which judicial authorities order the
person who infringes IPRs to pay the right holder includes investigations expense andappropriate attorney’s fees.
Title XVIII of the NCPC (Articles 695 to 725-1) concerns costs.  In general, the losing party
must pay costs, unless the judge decides otherwise.  In the absence of any special regulation to the
contrary, payment of legal officials (lawyers, bailiffs) is not included in the costs.
According to Article 700 of the NCPC, however:IP/Q4/FRA/1
Page 16
"The judge shall sentence the party liable for costs or, failing him, the losing party to pay to
the other party a sum that he shall determine in respect of the expenses incurred and not
included in the costs.  The judge shall take account of fairness or of the financial situation of
the party against whom costs are awarded.  He may, even ex officio, for reasons based on the
same considerations, decide that this sentence is not warranted."
The courts may therefore sentence the infringer to pay the plaintiff all or part of the
procedural expenses that the latter has incurred and that are not included in the costs.
25. Please describe to what extent the amount of damages have been estimated by courts
since 1 January 1996.  Please explain whether th e amount of damages is adequate compensation
for the injury the right holder has suffered, and how such civil procedures are consistent with
Article 45 of the TRIPS Agreement.
Please see the reply to question 23.
26. Please explain the kinds and amounts of penalties (imprisonment or fines) in criminal
cases.  Please also explain whether these penalties are consistent with Article 61 of the TRIPSAgreement which requires provisions for a sufficient deterrent, consistently with the level of
penalties applied for crimes of a corresponding gravity.
(a) Penalties applicable
(i) Literary and artistic property rights
Article L.335-2 of the CPI makes "the infringement in France of works published in
France or abroad" punishable by imprisonment of two years and a fine of
F 1,000,000.
The provisions defining infringements of copyright are set out in the first paragraph of
Article L.335-2 and in Article L.335-3 of the CPI.
In the case of related rights, paragraphs 1 and 2 of Article L.335-4 of the CPI impose
the same penalties for:
"any fixation, reproduction, communication or making available to the public,
on payment or free of charge, or any telediffusion of a performance, a
phonogram, a videogram, or a program made without authorization, where
such is required, of the performer, the phonogram or videogram producer or
the audiovisual communication enterprise."
Under paragraph 4 of Article L.335-4 of the CPI, a fine of F 1,000,000 is imposed for:
"failure to pay the remuneration due to the author, the performer or the
phonogram or videogram producer in respect of private copying or public
communication or of the telediffusion of phonograms."
Article L.335-9 of the CPI doubles the penalties that can be imposed if the offences
defined in Articles L.335-2 to L.335-4 are repeated or if the offender has been
contractually bound to the injured party.
Article L.335-8 provides for the criminal liability of legal persons for the above-
mentioned offences and sets out two types of penalty:IP/Q4/FRA/1
Page 17
(1) A fine based on Article L.131-38 of the New Criminal Code which provides
that the maximum fine imposed on legal persons is an amount corresponding
to "five times that specified for natural persons under the law that punishes
the offence", i.e. F 5,000,000 in this particular case;
(2) the penalties set out in Article L.131-39 of the New Criminal Code.In addition, Article L.335-5 provides that, when acts of infringement have been
committed, the establishments that have served for the commission of such offences
may be closed.
In the case of infringements of artistic and literary property rights, the first paragraph
of Article L.335-6 provides for the confiscation "of all or part of the proceedsobtained by reason of the infringement and the confiscation of all phonograms,
videograms, articles and copies that are infringing or have been unlawfully
reproduced and of the equipment specifically installed for the purpose of committing
the offence" and paragraph 2 of the same Article states that the court may order, at the
cost of the person convicted, the posting of the judgement pronouncing the sentence(under the conditions set out in Article L.131-35 of the NPC) and its publication in
full or as extracts in such newspapers that it may designate … .
Lastly, regarding copyright, the third paragraph of Article L.335-2 of the CPI makes
"the sale, export and import of infringing works" into an offence separate frominfringement and punishes them by imprisonment of two years and a fine of
F 1,000,000; the same penalties are imposed for the import or export of phonograms
or videograms infringing the rights of producers or performers (the second paragraph
of Article L.335-4).
Complicity in an infringement and concealment of an infringement are, moreover,
punished in accordance with the general principles of criminal law.
(ii) Industrial designs
Articles L.521-4 and L.521-6 of the CPI provide for imprisonment of two years,
which is doubled if the offence is repeated or if the offender is or has been bound to
the injured party.
Articles L.521-4 to L.521-6 of the CPI provide for a fine of F 1,000,000, which is
doubled if the offence is repeated of if the offender is or has been bound to the injured
party.
The second and third paragraphs of Article L.521-4 provide, when acts of
infringement have been committed, that the establishments that have served for the
commission of such offences may be closed.
If the offence is repeated, in addition to doubling the penalties, the second paragraph
of Article 521-6 of the CPI provides that:
"The guilty parties may be deprived, for a period not exceeding five years, of
the right to elect and be elected to commercial courts, chambers of commerce
and industry and professional chambers and to industrial tribunals."IP/Q4/FRA/1
Page 18
Articles L.521-3 and L.521-3-1 of the CPI provide that, even if the defendant is
released, the articles infringing rights may be confiscated and, in the event of
conviction, also the instruments having served specifically to manufacture the
incriminated articles.
Under Article L.521-5, legal persons may also be found liable for acts of
infringement.  The fines imposed on such persons are five times higher than the fines
imposed on natural persons.
(iii) Marks
Articles L.716-9 et seq.  of the CPI repeat, for marks, all the provisions described
above for industrial designs in respect of imprisonment, fines, closure of
establishments and repeated offences.
Moreover, Article L.716-13 of CPI gives the court the possibility of ordering the
posting and publication of the judgement.
Under Article L.716-8-1 of the CPI:
"Officers of the judicial police may, as soon as offences under
Articles L.716-9 and L.716-10 have been reported, effect the seizure of goods
unlawfully manufactured, imported, stoc ked, placed on sale, delivered or
supplied, and of any material and equipment specially installed for thepurposes of such unlawful acts."  Moreover, Article L.716-14 of the CPI
authorizes the court to order the confiscated goods to be delivered to the
owner of the mark that has been infringed, without prejudice to any damages,
or to order their destruction.
Article L.716-11-2 repeats the provisions of Article L.521-5 relating to the liability of
legal persons for acts of infringement.
(iv) Patents
Infringement is punishable by imprisonment of two years pursuant to
Article L.615-14 of the CPI.  If the offence is repeated, or if the offender is or has
been contractually bound to the injured party, the penalties are doubled
(Article L.615-14-1).
If a patent application has been made public before the Ministry of Defence has
authorized it or before the expiry of a period of five months from the date of filing ofthe application and if this procedural violation has prejudiced national defence,
imprisonment of five years may be ordered (Article L.615-13 of the CPI).
Violation of this procedure in relation to international patent applications or
applications for European patents is subject to the same penalty (Articles L.615-15and L.615-16 of the CPI).
A fine of F 1,000,000 may be imposed and may be doubled in the case of repeated
offences.IP/Q4/FRA/1
Page 19
Any person improperly claiming to be the owner of a patent or of a patent application
is liable to a fine of F 50,000 which may be doubled if the offence is repeated within
five years (Article L.615-12 of the CPI).
Violation of the procedure set out in Articles L.612-9 and L.612-10 of the CPI
(protecting the interests of national defence) is liable to a fine of F 30,000 even if theviolation has not prejudiced national defence.
Violation of this procedure in connection with international patent applications or
applications for European patents is punishable by a fine of F 40,000
(Articles L.615-15 and 615-16 of the CPI).
(v) New plant variety certificates
According to Article L.623-32 of the CPI, if there is repeated infringement of a plant
variety certificate, imprisonment of six months may be ordered in addition to the fine
specified below.
Imprisonment of five years may also be ordered if a new plant variety that is the
subject of an application for a certificate is made public or exploited before the
Ministry of Defence has authorized it or be fore the expiry of a period of five months
from the date of filing of the application and if this procedural violation has
prejudiced national defence (Article L.623-35 of the CPI).
Article L.623-4 of the CPI states that:
"any person improperly claiming to be the owner of a new plant variety
certificate or of an application for such a certificate shall be punished by a
fine of F 10,000.  The fine may be doubled if the offence is repeated (within
five years)."
In addition, Article L.623-35 of the CPI provides that violation of the procedure at a
stage that concerns protection of the interests of national defence is punishable by a
fine of F 30,000 (which is not combined with the term of imprisonment mentionedabove unless the violation has prejudiced the interests of national defence).
Geographical indications and designations of origin
Article L.213-1 provides that any person, wh ether or not party to the contract, who
has misled or attempted to mislead the co-contractor, by whatever means, even
through the agency of a third party, about the nature, species, origin, substantive
qualities, composition or content of active principles of any goods is punishable byimprisonment of two years and by a fine of F 25,000 or by one of these penalties
alone.
Article L.213-5 states that any person having been sentenced to criminal penalties
pursuant to Chapters II to VI of this Ti tle or to the following provisions and who,
within five years of the date on which this sentence became final, has committed a
new offence falling within the scope of application of Chapters II to VII of this Title
or of the following provisions: Book II and the regulatory part of the Consumer Code
(in particular Article R.215-2 governing reports by officials), shall be deemed to be a
re-offender.IP/Q4/FRA/1
Page 20
Violations of invoicing rules or acts of misleading publicity or fraud that have been
reported may be mentioned in support of an infringement case.
(b) Notion of "fines sufficient to be a deterrent"
This latter point has more to do with the foundations of criminal law.It should be noted, however, that an infringer pursued on criminal grounds cannot be
dispensed from appearing at the hearing of the court by producing a letter of representation.  Such
letters are possible, pursuant to the first paragraph of Article 411 of the Code of Criminal Procedure,
solely when the penalty than can be imposed is st rictly less than imprisonment of two years, which is
not the case for industrial property.
The Law of 5 February 1994 incorporated into the Intellectual Property Code raises,
moreover, the fines that can be imposed in respect of all intellectual property rights to F 1,000,000
(prior to this, the fine in respect of industrial designs was F 500,000).
This penalty seems to be effective as a deterrent: the amount chosen is halfway between the
amounts set out in the Criminal Code for simple la rceny, on the one hand (Article 311-3 of the New
Criminal Code: F 300,000), and simple concealment or abuse of trust, on the other hand
(Articles 311-1 and 321-5 of the Criminal Code: F 2,500,000).
Under French law, infringement of a mark al so constitutes a customs offence (Articles 38.1
and 38.4 of the Customs Code).  The fine that can be imposed on the offender may be between one to
two times the value of the infringing g oods (Article 414 of the Customs Code).
III. REPLIES TO THE QUESTIONS PUT BY THE UNITED STATES
General obligations
There is no regional or federal level in France.  Any judgement rendered is enforceable
throughout France.
1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for
the effective enforcement of the intellectual prop erty rights covered by the Agreement.  Please
describe the structure of the judicial and administrative
3 procedures in France in which parties
can enforce their intellectual property rights, at local, provincial and national levels, indicating
the jurisdiction of each type of court or  administrative body and explaining the
interrelationships, if any, of the various types of courts and administrative bodies.  Cite the laws
or other authorities establishing the structure, including each type of court and administrative
body.
I. JUDICIAL PROCEDURES
1. Actions on the merits
Owners of inte llectual property rights may choose between civil and criminal proceedings.
                                                     
3These questions apply to both judicial and administrative enforcement of intellectual property rights
because of Article 49 of the TRIPS Agreement.IP/Q4/FRA/1
Page 21
The owner of an intellectual property right is understood as the natural or legal person who
has standing to assert his rights before the courts.  The word "owner" includes successors in title (i.e.
heirs or assignees in particular), authors or applicants for intellectual property rights.
A. C IVIL COURTS
(a) Jurisdiction ratione loci
Article 46 of the New Code of Civil Procedure states that:
"The plaintiff may choose to bring proceedings not just before the court of the place
of residence of the defendant but, in matters of tort, before the court of the place of
the injurious act or the court within whose competence the injury has been suffered."
(b) Jurisdiction ratione materiae
(i) Artistic and literary property
The first paragraph of Article L.331-1 of the CPI provides that:
"All disputes relative to the application of the provisions of Part One of this Code
which are within the jurisdiction of the civil courts shall be submitted to the
competent courts, without prejudice to the right of the injured party to institute
criminal proceedings under the general rules of law."
A plaintiff whose literary and artistic rights have been infringed may choose to institute civil
or criminal proceedings.  The first paragraph of Article L.331-1 of the CPI refers, moreover, to thegeneral rules of law governing the sharing of jurisdiction between courts.
The general rules of law concerning the sharing of jurisdiction and geographical competence
therefore apply, subject to the following provisions:
- The second paragraph of Article L.113-9 of the CPI which gives sole competence to
the Court of First Instance of the registered place of business of the employer to hear
cases relating to economic rights in software and its documentation created by
employees in the exercise of their duties;
- Article L.122-9 of the CPI which provides that Courts of First Instance should hear
cases of manifest abuse in the exercise or non-exercise of rights of exploitation by a
deceased author’s representatives and any dispute between such representatives or if
there is no known successor in title.
Moreover, only the President of a Court of First Instance can decide upon matters of
infringement seizure in the cases specified in the second paragraph of Article L.332.1 and the firstparagraph of Article L.332-4 of the CPI.
Articles L.332-1 to L.332-4 of the CPI also establish a preventive procedure specific to
artistic and literary property: infringement seizure.
This is intended:
- Either to provide the owners of rights with evidence that will enable them to initiate
infringement proceedings on the merits;IP/Q4/FRA/1
Page 22
- or to end the manufacture and marketing of infringing articles and to have them and
any operating profits confiscated while awaiting proceedings on the merits.
In the case of copyright, the first paragraph of Article L.332-1 of the CPI gives police
inspectors or, failing them, the competent judge, power s to order, at the request of any author or his
successors in title, the seizure of copies constitu ting an unlawful reproduction of the work.  These
powers apply only when rights of reproduction are infringed.  A special authorization must be
obtained from the President of the Court of First Instance, in an ex parte  order, for the other cases
covered by this Article.
In the case of software, the first paragraph of Article L.332-4 of the CPI states that an
infringement seizure is to be carried out under an ex parte  order by the President of the Court of First
Instance.  The third paragraph of Article L.332-4 of the CPI, however, allows police inspectors to
carry out a descriptive seizure of the infringing software, which may take the form of a copy, at the
request of any author of protected software or his successors in title.
In the case of related rights, the law does not establish a specific procedure for infringement
seizure.  Article L.335-1 allows judicial police offi cers, when offences as mentioned in Article L.335-
4 of the CPI are reported, to effect the seizure of unlawfully reproduced phonograms and videograms,
copies and articles manufactured or imported unlawfully, and the equipment specifically installed for
the purpose of committing such offences.
Owners of artistic and literary property rights may also take action under the channels of
general law and request provisional protection measures from judges in chambers.
In the case of literary and artistic property rights, the following persons are empowered to
assert their rights:
(1) Owners of  rights but only to the extent that they have not been deprived of their
economic rights.
(2) Assignees of rights may assert their literary and artistic property rights as far as the
economic rights transferred to them permit.
(3) According to Article L.331-1 of the CPI, regularly constituted bodies for professional
defence are entitled to institute legal proceedings to defend the interests entrusted to
them under their statutes.  The same applies to civil companies for the collection and
distribution of royalties in respect of copyright and related rights (Article L.321-1 of
the CPI).
(4) The Minister responsible for culture may refer a matter to the courts in the cases set
out in Article L.122-9 of the CPI.
(5) According to Article L.331-3 of the CPI, the National Centre for Cinematography
may exercise the rights acknowledged for the civil party with respect to the offence of
infringement of an audiovisual work where the public proceedings have been initiated
by the public prosecutor or by the injured party.IP/Q4/FRA/1
Page 23
(ii) Marks
With regard to marks, Article L.716-3 of the CPI provides that:
"Civil proceedings relating to marks as well as any proceedings involving both a
matter of marks and a related matter of industrial designs or unfair competition shall
be heard by the Courts of First Instance."
This Article gives sole competence to the Courts  of First Instance with the result that the
lower courts and commercial courts are not competent.
Article L.716-5 of the CPI provides that:
"Civil infringement proceedings shall be instituted by the owner of the mark.
However, the beneficiary of an exclusive right of exploitation may institute
infringement proceedings, unless otherwise laid down in the contract, if, after formal
notice, the owner does not exercise such right …".
Furthermore, under Article L.714-7 of the CPI, assignees or beneficiaries of an exclusive
right of exploitation must register their marks in the National Register of Marks in order to rely upon
them as against third parties.
(iii) Industrial designs
There are no special regulations on industrial designs.  The general rules of civil procedure
therefore apply.
- When the parties are traders, the Commercial Court has jurisdiction.- When only the defendant is a trader, the plaintiff may choose to bring proceedings
either before the Commercial Courts or before the Civil Courts.
- When none of the parties are traders, only the Civil Courts then have jurisdiction.
Article R. 321-1 of the Code of Organiza tion of Justice, however, provides that:
"In civil proceedings, a Court of Instance has jurisdiction over all actions to enforce a
right in personam  or actions related to moveable assets up to the amount of F 13,000
in the first instance and on appeal up to the amount of F 30,000."
As most cases are in practice for an amount greater than F 30,000, the Courts of First Instance
will therefore hear civil disputes between two parties.
Only the owner of the right has standing to assert his legal rights.  Licensees do not have such
standing.
The assignee of an industrial design must register it in the National Register of Industrial
Designs in order to rely upon it as against a third party (Article L.512-4 of the CPI).IP/Q4/FRA/1
Page 24
(iv) Patents
Regarding patents, Article L.615-17 of the CPI states that:
"All litigation under this Title shall fall with in the jurisdiction of the Courts of First
Instance Courts and of the relevant Courts of Appeal ... ."
Article R.631-1 of the CPI refers back to Ar ticle R.312-2 of the Code of Organization of
Justice and establishes the list of Courts of First Instance that have jurisdiction (numbering ten).
Courts Competent to Hear Actions in Resp ect of Inventions and Technical Knowledge
Courts of First
InstanceGeographical jurisdiction covering the Departments included within the
jurisdiction of the Courts of Appeal of:
Marseilles Aix:  Aix-en-Provence, Bastia, Nîmes
Bordeaux Bordeaux:  Agen, Bordeaux, Poitiers
Strasbourg Colmar:  Colmar, Metz
Lille Douai:  Amiens, Douai
Limoges Limoges:  Bourges, Limoges, Riom
Lyons Lyons:  Chambéry, Lyons, Grenoble
Nancy Nancy:  Besançon, Dijon, Nancy
Paris Paris:  Orléans, Paris, Reims, Rouen, Versailles, Basse-Terre, Fort-de-France,
Saint Denis de la Réunion, Nouméa, Papeete, Mamoudzou andSaint-Pierre-et-Miquelon
Rennes Rennes:  Angers, Caen, Rennes
Toulouse Toulouse:  Pau, Montpellier, Toulouse
Regarding patents, only the ten Courts of First Instance listed above have jurisdiction and all
other courts do not (Commercial Court, lower courts and Courts of First Instance not listed in
Article R.631-1 of the CPI).
In addition, Article L.615-19 of the CPI provides that:
"Patent infringement proceedings shall be heard exclusively by the Court of First
Instance.
All proceedings involving infringement of a patent and a related act of unfair
competition shall be heard exclusively by the Court of First Instance."
Article L.615-2 of the CPI provides that:IP/Q4/FRA/1
Page 25
"Infringement proceedings shall be instituted by the owner of the patent.  However,
the beneficiary of an exclusive right of exploitation may, unless otherwise stipulated
in the licensing contract, institute infringement proceedings if, after formal notice, the
owner of the patent does not institute such proceedings."
The same applies to holders of licences, compulsory licences or ex officio licences.Furthermore, an assignee or a beneficiary of an exclusive licence in respect of a patent must
register it in the National Patents Register in order to rely on it as against third parties (Article L.613-9
of the CPI).
(v) New plant variety certificates
In the case of new plant variety certificates, the first paragraph of Article L.623-31 of the CPI
gives jurisdiction to those courts appointed to hear patent disputes.
Article L.623-25 of the CPI gives the owner of the certificate the right to institute civil
liability proceedings and gives the same right to beneficiaries of exclusive rights of exploitation or
holders of ex officio licences if, after formal notice, the owner of the certificate fails to exercise thisright.  The owner of the certificate is entitled to take part in proceedings brought by the licensee and
vice versa.  For this purpose, the exclusive licence must have been registered in the National Register
of New Plant Variety Certificates.
(vi) Layout designs
In the case of layout designs, Article L.622-7 refers to Article L.615-17 of the CPI on patents.
There are no particular provisions on civil proceedings.  Under general law, creators and their
successors in title are entitled to assert their rights, whereas licensees may not do so.
(vii) Trade secrets
In the case of disclosure of trade secrets, the injured party may bring an action for unfair
competition before the Court of First Instance or before the Commercial Court if both parties are
traders.  If the disclosure has been made by a person previously or currently employed by the
company suffering the injury, the case may be brought before an industrial tribunal (Article L.152-7of the Labour Code, repeated in Article L.621-1 of the CPI).
An action for unfair competition (based in tort: Articles 1382 and 1383 of the Civil Code)
may be brought by the professional suffering injury.
(viii) Designations of origin
In the case of geographical indications and designations of origin, Article L.115-10 of the
Consumer Code states that "proceedings shall be brought before the Court of First Instance of the
place of origin whose designation is contested …".
The provisions of the Consumer Code on civil proceedings do not apply, however, to
agricultural products or foodstuffs that have been given exclusive use of a registered designation oforigin (Article L.115-5 of the Consumer Code).  The criminal courts have jurisdiction according to the
general rules of law (see point B of this reply).IP/Q4/FRA/1
Page 26
2. Provisional measures
The French legal system also allows for accelerated procedures, known as référé proceedings
(proceedings in chambers), enabling the Presiden ts of the various competent courts to order
provisional measures to forestall or stop any infringement of the rights of the applicant (Articles 808
and 809 of the NCPC for Courts of First Instance , 848 and 849 of the NCPC for lower courts, and 872
and 873 of the NCPC for the Commercial Court).
Special proceedings in chambers have been established for artistic and literary property,
patents and marks (see the replies to questions 25 et seq.).
B.C RIMINAL COURTS
Plaintiffs may choose between civil or criminal proceedings in the event of offences against
intellectual property rights .
When they may be deemed to be offences of infringement, the acts committed may lead to
criminal proceedings.
Proceedings are brought by the public prosecutor or by the owner of the intellectual property
right that has been prejudiced acting as a civil party (Article 2 of the Code of Criminal Procedure
(CPP).
In the case of an offence, criminal infringement proceedings must be brought before the Court
of Misdemeanours of the place of the offence, of the residence of the perpetrator of the offence or ofthe place of arrest of the latter (Articles 381 et seq. of the CPP).
Criminal infringement proceedings are governed by the general rules of criminal procedure.
The victim of the infringement may take part in the proceedings as a civil party.
It should be borne in mind, however, that in the case of patents , proceedings may be initiated
only before the examining judge or the Criminal Court of one of the courts with jurisdiction over
patents, pursuant to the second paragraph of Article L.615-17 of the CPI.
In the case of geographical indications and designations of origin , Articles L.115-16 and
L.115-18 (Consumer Code) provide that the misuse of  an incorrect designation of origin, on the one
hand, or affixing it or causing it to appear by removal, addition or alteration, on the other hand, on
natural or manufactured products offered for sale or to be offered for sale, are offences in respect of
designations of origin.  The sale, offer for sale or circulation of such products is liable to the same
penalties (Articles L.115-16 and L.115-18 of the Consumer Code).  Under Article L.115-17,
individuals, groups or associations may act as civil parties if they claim to be injured by such
offences.
In general, geographical indications and designations of origin are subject to the general
requirement of conformity laid down in Articles L.212-1 et seq.  of the Consumer Code.  For example,
fraud concerning the nature, composition or orig in of a product (Article L.217-6 of the Consumer
Code), as well as the possession, display, offer for sale or sale of such products are punishable.IP/Q4/FRA/1
Page 27
II. ADMINISTRATIVE MEASURES
Council Regulation (EC) No. 3295/94 of 22 December 1994, enacted by Regulation (EC)
No. 1367/95 of the European Commission of 16 June 1995, sets out the rules applicable within the
European Union to the withholding of infringing or allegedly infringing goods.
In domestic law, this procedure is set out in Articles L.521-7 and R.521-1 of the CPI for
industrial designs and in Articles L.716-8 and R.716-1 of the CPI for marks.  In the case of artistic
and literary property, the provisions governing this procedure are set out in Articles L.335-10 and
R.335-1 of the CPI.
Mention should also be made of the Order of 6 February 1995 setting out the form in which
the written request for action from the owner of an intellectual property right (copyright and related
rights, industrial designs, marks) is to be presented to the customs administration.
In the case of infringement, moreover, the Direction générale de la concurrence,
consommation et répression des fraudes (DGCCRF) (Directorate-General of Competition, Consumer
Protection and the Repression of Fraud) has jurisdiction only in respect of mark infringements.  It may
not act in the case of infringements of patents and industrial designs, unless the infringement recordedby its investigators is deemed to be an offence of infringement.
2. Please describe briefly the procedure that mu st be followed by a foreign party to initiate
an enforcement procedure in each of the courts and administrative bodies identified in response
to question 1 and cite the legal authorities establishing those procedures.
Any foreigner owning intellectual property rights protected in France may assert them before
any court, in accordance with the rules on the sharing of jurisdiction described in reply to question 1.
3. Please identify any requirement that a foreign party must meet to initiate a proceeding
in the courts and administrative bodies identified in answer to question 1 that is not required of
a national or resident of France and cite the legal authorities providing for those differences.
Please see the reply to question 2.
4. Articles 41.1 and 48 of the TRIPS Agreement require establishment of safeguards
against abuse of judicial and administrative en forcement procedures, including provision for
adequate compensation for injury  suffered because of such abuse.  Please describe the means
available under the law of France to prevent abuse of judicial and administrative procedures or
to remedy damages suffered as a result of such abuse and cite the legal authorities for those
means.
The general rules of law apply in this case.
Article 32-1 of the NCPC thus provides that:
"A person instituting dilatory or abusive proceedings may be sentenced to a civil fine
of F 100 to F 10,000 without prejudice to any damages that may be claimed."
This provision means that a party that has suffered a manifest abuse may claim damages.In all cases, the judge may award the damages that he deems necessary to compensate the
prejudice (see the reply to question 20), but always within the limits of what the parties have claimed.IP/Q4/FRA/1
Page 28
Before the Court of Cassation (see the reply to question 11), the fine may be F 20,000
(Article 628 of the NCPC).
Case law shows that proceedings wrongfully instituted in bad faith may give rise to counter-
claims on the basis of Article 1382 of the Civil Code.  The courts may then order the payment of
damages to the defendant and the publication of extracts from the sentence at the expense of theplaintiff.
In order to remedy proceedings wrongfully instituted by the holder of an intellectual property
right, the Code of Criminal Procedure sets out preventive and compensatory measures:
(a) Preventive measures
The public prosecutor may decide not to pursue the action if it is deemed to be
insufficiently founded.
An action brought by the holder of the property right as a civil party that leads to
proceedings entails the deposit of a sum of money evaluated by the examining judge
(Article 88 of the CPP).  This deposit acts as a guarantee against the payment of anyfine that may be ordered by the criminal court in the event of an action by the plaintiff
being found to be wrongfully instituted.
(b) Remedial measures
- The plaintiff has civil liability for wrongfully instituted actions.
In the event of dismissal after opening of an investigation when the plaintiff is
acting as a civil party, the defendant may claim damages from the plaintiff
(Article 91 of the CPP).
Similarly, the public prosecutor may, at his own initiative, summon the
plaintiff before the criminal court which, if it considers the action brought by
the plaintiff to be wrongfully instituted or dilatory, may impose a civil fine of
a maximum amount of F 100,000 (Article 91 of the CPP).
- The plaintiff may also have criminal liability for wrongfully instituted
actions:
A plaintiff who falsely reports an offence to the judicial authorities may be
found guilty of the offence of malicious accusation (Article 226-10 of the
Criminal Code (CP): a maximum term of imprisonment of five years and a
maximum fine of F 300,000).
5. Article 41.2 addresses, among other things, the cost of judicial and administrative
enforcement proceedings.  Please describe any fees charged by judicial or administrative
officials for filing legal actions involving intell ectual property or for pursuing such actions once
initiated, cite the legal authorities for such f ees, and provide copies of the documents used to
inform the public of such fees.
The cost of proceedings includes legal costs, mainly allowances paid to witnesses, payment of
technicians, salaries of prosecuting officials and attorneys’ fees.IP/Q4/FRA/1
Page 29
The cost therefore varies greatly depending on whether or not technical expertise is required
and the amount of the fee paid by the client to his attorney.  The court may order the losing party to
pay the attorney’s fee up to an amount that it determines.
Attorneys’ fees are not fixed and cannot depend solely on the outcome.  The fees of bailiffs
and lawyers (see the reply to question 12) are laid down by the public authorities (bailiffs: Decree of12 December 1996, lawyers: Decree No. 80-608 of 30 July 1980).
France has no statistics or official surveys on this matter.  It is not therefore possible to
provide more accurate details of the actual costs of such proceedings.
6. Article 41.2 also addresses the timeliness of judicial and administrative enforcement
proceedings.  Please cite to the legal authoritie s establishing any time-limits for judicial and
administrative proceedings and, if it has not al ready been done, provide copies of the laws or
regulations in question.
There are no special provisions on the cost and duration of proceedings.
The duration depends on the complexity of the case, the efforts of the parties and the court’s
workload.  The channels of appeal used by the parties (appeal, cassation) also have a significant
impact on the overall duration of proceedings.
There is no detailed official survey from which the duration of such judicial proceedings can
be assessed.
However, the report of Group Q134B of th e AIPPI (International Association for the
Protection of Industrial Property) (meeting of the Executive Committee, Vienna, 1997) states, as
regards industrial property in France, that:
"The average duration of first instance mark infringement proceedings is one year.The average duration of first instance patent infringement proceedings is two years.
First instance judgements can be appealed and the average duration of proceedings before the
Court of Appeal is two years."
It should also be borne in mind that the lack of a federal or regional level also helps to reduce
the length of judicial proceedings in France.
7. Please explain any provisions in the en forcement system in France that ensure
expeditious remedies.  In addition, please explain what provisions are available to prevent
deliberate delays by the parties to a proceeding and indicate the circumstances in which such
provisions will be applied.
Reference should be made to previous replies, in particular to question 1 and question 6.
Article 32-1 of the NCPC (mentioned above und er question 4) effectively punishes any
dilatory manoeuvres by a party.
When proceedings on the merits have been brought, only the judge responsible for preparing
the case may rule on dilatory pleas entered by the parties, pursuant to Article 771 of the NCPC.IP/Q4/FRA/1
Page 30
Similarly, in order to prevent any abusive action by the plaintiff, the provisional enforcement
of a judgement "may be made subject to the deposit of a real or personal security sufficient to cover
all restitutions or damages" (Article 517 of the NCPC).
The preventive and remedial measures set out under question 4 also apply in criminal law.
8. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case
preferably be in writing, the better to determin e the reasoning on which the decision is based.
Please state, with regard to each type of court and administrative body identified in question 1,
whether judges or administrative officials must  render their decisions in writing and cite the
legal authorities requiring such written opinions.
Decisions on intellectual property are all given in writing in accordance with the general rules
of law.
The rules applicable to the reasoning on which decisions are based are set out in
Articles 454 et seq. of the NCPC.
The reasoning on which decisions are based takes account of the facts of the case, the
applicable rules of law and therefore the circumstances under which the rules of law apply to the
facts.
All decisions are in writing before the criminal courts and must set out the grounds and the
provisions on which the legal decision is based (Article 485 of the CPP).
9. Article 41.3 also requires that decisions on the merits of a case be based only on evidence
in respect of which parties had an opportunity to be heard.  Please state, with regard to each
type of court and administrative body identifi ed in question 1, what factors may be considered
by a judge or administrative official in rende ring a decision and cite the legal authorities
establishing the basis on which judges and administrative officials may reach decisions.
The provisions of Title I of Book I of the NCPC law down the rules applicable to litigation
proceedings (Articles 1 to 29 of the NCPC).
Any infringement of intellectual property rights is a legally relevant fact.  Proof may be
provided by any kind of evidence (Articles 1315 et seq. of the Civil Code and in particular
Article 1341).  In civil proceedings, the burden of proving allegations lies with the parties.
Articles 9 to 11 of the NCPC govern the rules on the production of exhibits.
Pursuant to Article 7 of the NCPC, moreover, the judge may take account of facts that the
parties have not specifically cited but that have emerged during the hearings.
In the case of literary and artistic property, Article L.331-2 of the CPI also states that: "proof
of the existence of any infringement of the provisions of Books I, II and III of the CPI may beprovided by the statement of a sworn agent designated, as appropriate, by the National Centre for
Cinematography, by the professional bodies of authors or by the societies for the collection and
distribution of royalties".
However, this is in no way an exception to the general principle that proof may be provided
by any kind of evidence, since proof of the infringement may be adduced by any means of general
law.IP/Q4/FRA/1
Page 31
In criminal law, offences may be proven by any kind of evidence and the judge rules on the
basis of reasonable certainty (Article 427 of the CPP).
10. Article 41.4 obligates WTO Members to provid e for judicial review of certain judicial
and administrative decisions in intellectual property enforcement proceedings.  Please describe
what legal limitations, if any, are placed upon the ability of a party to an intellectual propertyenforcement proceeding to have both procedural rulings and final decisions reviewed by a
separate judicial authority, and cite the le gal authorities providing for such reviews.
(a) Judicial decisions
Any party to proceedings in connection with the respect of intellectual property rights may in
principle initiate appeal proceedings.
In civil proceedings, the Court of Appeal with  geographical jurisdiction hears appeals against
decisions given by first instance courts.
In the case of patents, only ten Courts of Appeal are competent to hear disputes between
parties, pursuant to Article R.631-1 of the CPI (see the reply to question 1).
Appeal proceedings may also be instituted before  the Court of Cassation if the grounds raised
before this court are points of law.
Appeals against judicial decisions are lik ewise possible under the Code of Criminal
Procedure.
The civil party may thus appeal against the first instance judgement given by the criminal
court (Article 496 of the CPP) under the conditions set out in Article 498 of the CPP (the appeal mustbe lodged within 10 days of the judgement given in the presence of the parties or its notification in the
case of a judgement deemed to be given in the presence of the parties or a judgement in absentia).
As in civil law, appeals to the Court of Cassation are possible against the sentences given by
second instance judges (Article 567 of the CPP).
(b) Administrative decisions
The Direction nationale du renseignement et des enquêtes douanières (DNRED) (National
Directorate of Customs Information and Enquiries) may, at the request of the owner of an intellectual
property right, seize any goods presenting infringing characteristics.
The decision may be upheld, amended or overturned by the courts, in accordance with a
procedure described in reply to questions 37 et seq.
The same applies to the checks carried out by the Direction générale de la concurrence de la
consommation et de la répression des fraudes (DGCCRF) (Directorate-General of Competition,
Consumer Protection and the Repression of Fraud) which are subject to retrospective review by the
judicial authorities.IP/Q4/FRA/1
Page 32
Civil and Administrative Procedures and Remedies
11. Article 42 requires that defendants be notified of judicial and administrative intellectual
property enforcement proceedings brought against them.  Please describe the procedures
followed by each type of court and administrative body identified in question 1 for notifying
defending parties regarding proceedings that have been initiated against them, indicate theinformation provided regarding the proceeding and cite the legal authorities establishing these
procedures.
Pursuant to Article 54 of the NCPC, judicial proceedings are initiated by service of a writ
(Article 54 of the NCPC).
The writ must be served by a bailiff if it is to be relied upon against the defendant.The rules on the service of process regarding intellectual property do not differ from those of
general law which are set out in Articles 655 et seq. of the NCPC.
Mention should also be made of the specific rules on preliminary applications that will be
examined in detail below (procedures set out in Articles L.521-1 for industrial designs, L.615-5 for
patents and L.716-7 for marks).
In criminal law, the rules on the service of process regarding intellectual property rights do
not differ from those governing civil proceedings (Articles 500 et seq. of the CPP).
12. Article 42 also requires that parties to intellectual property enforcement proceedings
must be able to be represented by counsel and must not be subject to overly burdensome
requirements to appear personally.  Please describe any limitations under France’s laws on the
ability of a party in such a proceeding to be  represented by independent legal counsel and any
requirements imposed on the party to appear personally in a proceeding.  Please cite the legal
authorities providing such limitati ons and imposing such requirements.
The rules of general law that apply in respect of representation are also applicable to
intellectual property litigation.
It is compulsory for the parties to be represented by an attorney when the dispute comes
before the Court of First Instance (Court of Major Jurisdiction), pursuant to Articles 751 of the New
Code of Civil Procedure.
All disputes in connection with marks, patents, new plant varieties and layout designs must be
brought before this court.
Litigation in connection with literary and artistic property and industrial designs may,
however, be brought before the Court of Instance or the Commercial Court, where representation by
an attorney is not mandatory.
Representation by an attorney is always possible, however, before all courts.
In addition, the parties to appeal proceedings (see the reply to question 11) are represented by
a lawyer registered with the court (Article 899 of the NCPC).
The law applicable to the personal appearance of a party is that of general law.IP/Q4/FRA/1
Page 33
This law is to be found in Article 184 et seq. of Chapter III of the New Code of Civil
Procedure.
Article 184 of the NCPC provides in this respect that:
"The judge may, in all matters, order the parties or one of them, to appear in person."
Article 184 is a procedural measure.  If the party fails to appear when the judge has ordered
his appearance, the judge may then take any legal steps.
In criminal law, when a judicial investigation is opened, the parties may at any time inform
the examining judge of the name of the attorney that they have chosen (Article 115 of the CPP).
13. Under Article 42, parties are to be entitled to substantiate claims and present relevant
evidence.  Please describe any limitations under the law of France on a party’s ability to
substantiate a claim or to present relevant evid ence and cite the legal authority providing such
limitations.
Civil and criminal proceedings in France are adversarial.
Article 14 of the NCPC therefore states that:
"No party may be judged without being heard or summoned."Reference should be made in this respect to the principles set out in reply to
question 9.
A party can and must provide any relevant evidence.Limits on the principle of the presence of the parties are possible, however, in relation
to the ex parte  order set out in Article 493 et seq. of the NCPC.
Such measures may be ordered only in cases "where the petitioner is justified in not
summoning the opposing party".
Criminal proceedings are governed by the principle of the freedom of evidence which must be
debated in the presence of the parties.
14. Article 42 requires, with one narrow exception , that there be a means to identify and
protect confidential information during judicial and administrative intellectual propertyenforcement proceedings.  Please describe the means provided under the law of France for
parties to identify and have protected confidential information required to be presented in
order to prove their claims and cite the legal au thorities providing for su ch identification and
protection.
There are no general provisions on the protection of confidential information in France.
Judges in chambers or judges directing the preparation of the trial (whose powers are broader and who
acts when investigation is required before sending the case to trial) have general powers under which
the measures requested by the parties in this respect can be taken.
Article 435 of the NCPC allows a judge, moreover, to decide that, under certain
circumstances, the hearings should be held or should continue in chambers.IP/Q4/FRA/1
Page 34
Pursuant to this Article, hearings are held in camera , i.e. with no public presence.
15. Article 43.1 of the TRIPS Agreement requires that judicial and administrative officials
be able to order a party to an intellectual prop erty enforcement proceeding to produce relevant
evidence in that party’s contro l identified by the opposing party when the latter party has
presented reasonably available evidence in support of its claims.  Please describe how and inwhat circumstances judges and administrative officials may order production of relevant
evidence in intellectual property enforcement proceedings and cite the legal authorities
providing for such orders.
The second paragraph of Article 11 of Book I of the NCPC, which sets out provisions
common to all courts, states that:
"If one party possesses an item of evidence, the judge may, at the request of the other party,
require him to produce it, if need be under penalty of a fine .  He may, at the request of one of
the parties, demand or order, if need be under the same penalty, the production of all
documents in the possession of third parties where there is no lawful impediment."
Subtitle I of Title VII of Book I of the NCPC deals with documents and their exchange
(Articles 132 to 142).
Lastly, Article 145 of the NCPC, included in the chapter on investigation measures, allows
the petitioner, under certain conditions, "to preserve or establish, before any proceedings, the meansof proving facts upon which the resolution of a suit might depend".
In the case of industrial property, with the exception of geographical indications and
designations of origin, the owner of a right may request the descriptive seizure and distraint measures
described in reply to questions 25 et seq.
In the case of literary and artistic property, the owner of the right may also request the
infringement seizure procedures set out in Arti cles L.332-1 of the CPI (copyright), L.334-4 CPI
(software) and L.335-1 (related rights) of the CPI.
The Law of 18 December 1996 incorporated a new Article L.615-5-1 into the CPI.
Under this Article:
"Where the subject matter of the patent is a process for obtaining a product, the court
may order the defendant to prove that the process to obtain an identical product is
different from the patented process.  If the defendant is unable to furnish such proof,any identical product produced without the c onsent of the owner of the patent shall be
deemed to have been obtained by the pa tented process in the following two cases:
(a) The product obtained by the patented process is new;
(b) there is a substantial likelihood that the identical product has been produced
by the patented process and the owner has been unable through reasonable
efforts to determine the process actually used … ."
Such provisions therefore exist only with regard to patents and in two specific cases:IP/Q4/FRA/1
Page 35
- The plaintiff is exonerated from the burden of proof when he has simply verified that
the alleged infringer is manufacturing or importing the product in question and that
the latter is identical to the product obtain ed by the patented process.  The petitioner
does not then have to apply for any infringement seizure procedures, allowing him to
make substantial savings.
- When the product is not new, the owner of the patent will probably have had recourse
to infringement seizure.  The term "reasonable efforts" then has to be understood as
the fact that it has been impossible for the owner of the patent clearly to identify the
process used by the alleged infringer at the time of such seizure.
16. Information ordered to be produced, referred to in question 15, must be protected if it is
confidential.  Please describe the means provi ded under the law of France for protecting such
information and cite the legal authority providing for such protection, if those means differ
from those described in answer to question 14.
In the case of patents, the final paragraph of Article L.615-5-1 of the CPI adds:
"In the adduction of proof to the contrary, the legitimate interests of the defendant in
protecting his manufacturing or trade secrets shall be taken into account."
The only limit on proof to the contrary to be adduced by the defendant lies in the protection of
his manufacturing and trade secrets.
Diverging interests need, nevertheless to be reconciled:  the petitioner’s need to be able to end
an unlawful event and the no less legitimate fear of the alleged infringer that his confidential
information will be passed on to a competitor.
In order to protect the higher interests of the nation, if a patent is worked by the State or one
of its co-contractors for the purposes of national defence, civil proceedings take place in the chambers
of the Court of First Instance (Article L.615-10 of  the CPI), i.e. the hearings are not public, in
accordance with Article 22 of the NCPC which states that "hearings are public, except where the law
requires or permits them to take place in chambers".
17. Article 43.2 provides that, in the event a party refuses to provide information ordered
by the judicial or administrative officials, thos e officials may be authorized to make preliminary
and final determinations adverse to that party.  Please describe what sanctions may be imposed
on a party that refused to provide ordered information and under what circumstances those
sanctions are imposed, citing the legal authority for those sanctions.
If the defendant fails to adduce the documents requested from him, the judge may take any
appropriate steps in respect of this refusal.
Pursuant to the second paragraph of Article 11 of the NCPC (see the reply to question 15), the
judge also has the power to order documents to be adduced under penalty of a fine.
In criminal proceedings, a refusal to adduce documents may be overcome by a search and
seizure.  At the request of the public prosecutor or the examining judge, moreover, police action may
be taken against persons refusing to give evidence.IP/Q4/FRA/1
Page 36
18. Article 44.1 requires that judicial and administrative officials be able to enjoin or
otherwise prevent infringing activity by a party, including by preventing the entry of infringing
goods into the channels of commerce in their juri sdiction.  Please describe authority of the
judges and administrative officials identified in question 1 to order parties to stop infringements
and to prevent infringing goods from entering the channels of commerce in their jurisdiction
immediately after clearance of such goods throug h customs.  In addition, please cite the legal
authorities authoriz ing such actions.
(a) Injunctions
The purpose of remedies or civil penalties is to end the infringement and compensate for the
prejudice caused .  The judge must first of all prohibit any continuation of the infringing acts .  Judges
may add injunctions to prohibition measures in order to ensure that their decisions are carried out.
However, fines, which are a special form of injunction, are much more commonly used as a
provisional measure.
There are no special provisions on intellectual property rights .  Consequently, the general
rules of law on injunctions apply: Chapter I of Title IV of the NCPC deals with injunction procedures,
and particularly mandatory injunctions, in Articles 1425-1 to 1425-9 of the NCPC.
In particular, Article 1425-1 of the NCPC states that:
"Where the judge considers that, on the basis of the documents produced, there are
grounds for the demand, he shall issue an order of mandatory injunction that is not
subject to appeal .  He shall define the purpose of the obligation and the time-limit and
conditions within which it must be carried out .  Moreover, the order shall specify the
place, date and time of the hearing at which the case will be considered, unless theplaintiff states that the injunction order has been carried out."
According to Article 1425-7 of the NCPC:
"Where the mandatory injunction has been carried out within the time-limits set, the
plaintiff shall inform the clerk of the court accordingly .  The case shall then be
withdrawn .  In the absence of such information and if the plaintiff is not present at the
hearing without justifying his absence, the court shall declare the mandatory
injunction to be null and void ... ."
In the case of geographical indications and designations of origin, Article 421-3 of the
Consumer Code allows a criminal court hearing a case brought by a consumers’ association, afterhaving declared the defendant guilty:
"to postpone sentencing and to call on the person convicted, on pain of a fine if need
be, to comply with the terms established by the court for the purpose of terminating
the unlawful action, within the time-limit set ...".
There are also provisional measures intended to suspend infringements of intellectual
property rights which will be examined in detail in the reply to question 25.
(b) Measures opposing the import of infringing goods
Any person owning rights in respect of indu strial designs or marks and any person owning
artistic and literary property rights may request the DNRED to withhold allegedly infringing goods.IP/Q4/FRA/1
Page 37
In the case of copyright, Article L.335-2 of the CPI prohibits the export and import of
counterfeit works.  Similarly, Article L.335-4 of the CPI states that it is an offence to import and
export phonograms and videograms produced without the authorization of the producer and
performer.
Moreover, Law No. 94-102 of 5 February 1994 (partly repeated in Articles L.716-8 to
L.716-12 of the CPI) establishes an absolute ban on the import and export of goods presented under
an infringing mark.
The judicial authorities are then responsible for ruling on the advisability of and grounds for
such measures.
19. Article 44.2 provides an exception to the requirement in paragraph 1 for government
use or use by third parties authorized by the Government, limiting the remedy for infringement
to payment of adequate remuneration as provided  in Article 31(h).  Please describe any such
limitations on remedies in the laws of France and cite the legal authorities providing for those
limitations.
Such provisions exist only for patents.
Article L.615-10 of the CPI states that:
"When an invention that is the subject matter of a patent application or a patent is
worked for the purposes of national defence by the State or its suppliers,
subcontractors and possessors of suborders, without a licence of exploitation having
been granted to them, civil proceedings take place in the chambers of the Court of
First Instance.  The court may not order the cessation or discontinuation ofexploitation or the confiscation set out in Article L.615-7... ."
20. Article 45.1 requires that judicial and admi nistrative officials be able to order an
infringer to pay the right holder damages adequate  to compensate for the injury caused by the
infringement.  Please describe the authority of the judges and administrative officials identifiedin question 1 to order a party found to be infringing to pay the right holder damages adequate
to compensate for the injury ca used by the infringement.  Please explain the factors considered
in establishing the amount of the compensation and cite the legal authorities authorizing such
compensation orders.
The same courts are competent to assess whether or not there has been infringement and to
evaluate the injury caused.
There are no provisions specific to intellectual  property rights.  Compensation for the injury
caused by the infringement of intellectual property  rights is assessed in accordance with the rules on
civil liability laid down in Articles 1382 and 1383 of the Civil Code.
The philosophy and the case law both confirm that the indemnity must compensate for the
prejudice suffered, but only the prejudice suffered and not profits unlawfully earned which cannot be
confiscated for the benefit of the victim of the infringement.
As legal precedents show, evaluation of the indemnity comprises two elements: determination
of the volume of infringement and assessment of the injury caused.IP/Q4/FRA/1
Page 38
The judge weighing the merits of the case has sole power to make this assessment.  Damages
cannot, however, exceed the amount claimed by the parties.
In the case of artistic and literary property, the confiscation has to be taken into account when
computing the damages to be awarded to the victim of the infringement.  Article L.335-7 of the CPI
provides that, if there has been infringement, "... the equipment, the infringing articles and the receiptsthat have been confiscated shall be handed to the victim or his successors in title to compensate them
for the prejudice they have suffered; the remaining indemnity, or the entire indemnity if there is no
confiscation of equipment, infringing articles or of receipts, shall be settled through ordinary
channels".
In the case of geographical indications and designations of origin, Article L.421-7 of the
Consumer Code allows a party to initiate proceedings before the civil courts in order to obtaincompensation for the injury suffered.
21. Article 45.2 requires that judges and administ rative officials be authorized to order
payment of a right holder’s expenses, including legal fees.  Please describe the authority of the
judges and administrative officials identified in question 1 to order payment of right holders’
expenses, the circumstances under which such an order will be given, the factors considered in
establishing the expenses, and cite the le gal authorities authorizing such payments.
Title XVIII of the NCPC (Articles 695 to 725-1) concerns costs.  In general, the losing party
must pay costs, unless the judge decides otherwise in a decision on special grounds.  In the absence ofany special regulations to the contrary, payment of le gal officials (bailiffs, lawyers) is not included in
the costs.
Pursuant to Article 700 of the NCPC, however:
"The judge shall sentence the party liable for costs or, failing him, the losing party to
pay to the other party a sum that he shall determine in respect of the expenses
incurred and not included in the costs.  The judge shall take account of fairness or of
the financial situation of the party against whom costs are awarded.  He may, even ex
officio, for reasons based on the same considerations, decide that this sentence is notwarranted."
The courts may therefore sentence the infringer to pay the plaintiff all or part of the
procedural expenses that the latter has incurred and that are not included in the costs.
22. Article 46 requires that judges and administrative officials be authorized to order, in
certain circumstances, other remedies, including disposal of goods outside commercial channelsor destruction of goods and destruction of ma terials and implements the predominant use of
which is the creation of infringing goods.  Plea se describe the additional remedies available
under the laws of France, the circumstances in  which such authority will be exercised, the
factors considered in determining the nature of  the remedies provided, and cite the legal
authorities providing for such remedies.
(a) Confiscation
A judgement of the First Civil Chamber of the Court of Cassation of 3 November 1987
reaffirms that a confiscation measure "can be ordered only in the cases prescribed by the law".
In the case of patents, Article L.615-7 of the CPI, included in the section on civil penalties,
states that:IP/Q4/FRA/1
Page 39
"At the request of the injured party, and where such measure is necessary to prevent
continuing infringement, the courts may order confiscation, in favour of the
petitioner, of the articles recognized as constituting an infringement, which are the
property of the infringer on the date of entry into force of the prohibition and, where
appropriate, of the devices or means specifically intended for committing theinfringement.
The value of the articles confiscated shall be taken into account when computing the
compensation to be awarded to the beneficiary of the decision."
In relation to new plant variety certificates, Article L.623-28 of the CPI provides that:
"At the request of the injured party, the C ourt may order confiscation on behalf of the
injured party of any plants or parts of plants or of any elements of reproduction or
vegetative propagation obtained in violation of the rights of the owner of a new plant
variety certificate and, where appropriate, of the instruments specifically intended for
use in the reproductive cycle."
In the case of industrial designs (Article L.521-3 and L.523-1-1 of the CPI) and marks
(Articles L.716-8-1 and L.716-14 of the CPI) these measures constitute criminal penalties.
Legal precedent would seem to accept, however, that civil courts may order such measures in
the case of both industrial designs and marks.
In the case of artistic and literary property, the judge is empowered, pursuant to the general
rules of law, to order all appropriate measures for compensation in kind and may therefore order the
destruction or disposal of the goods or any other measure such as the publication of judgements.
Civil courts may also order the seizure provided for in criminal law under Article L.335-6 of
the CPI.  According to legal precedent, this measure may be ordered by the civil courts separately
from any criminal penalties.  Civil courts may therefore order the confiscation of all or part of the
proceeds obtained by reason of the infringement and of all phonograms, videograms, articles andcopies that are infringing or have been unlawfully reproduced and of the equipment specifically
installed for the purpose of committing the offence.
(b) Destruction
No express provision is made for the destruction of allegedly infringing goods in the case of
industrial designs, marks and patents.
In the case of marks, however, the third paragraph of Article L.761-15 states that:
"It (the court) may also order their destruction."
23. Article 47 provides that WTO Members may authorize judges and administrative
officials to order infringers to identify for right holders third parties involved in the production
and distribution of infringing goods or services and their channels of distribution.  Please
describe any authority judges and administrative officials have under the laws of France to
order infringers to identify for right holders third parties involved in the production anddistribution of infringing goods or services and their channels of distribution and describe the
circumstances in which this authority would be exercised.  Please cite the legal authorities
providing for such remedies.IP/Q4/FRA/1
Page 40
There are no specific provisions in the field of intellectual property.
Such measures could not be ordered at this stage of proceedings since they would be contrary
to the presumption of innocence.
The judge responsible for settling the dispute has, however, very broad powers to obtain such
information while keeping it confidential.
24. Article 48.2 permits WTO Members to exempt public authorities and officials from
liability from remedies only where their actions were taken or intended in good faith in carrying
out their responsibilities under the law.  Please explain any exemption provided public
authorities and officials from liability for abuse of enforcement procedures, describe thecircumstances in which such limitations would no t apply, and cite the legal authorities granting
such exemptions.
It should firstly be noted that no public authority is authorized to infringe intellectual property
rights.
A public authority or its officials guilty of acts of infringement are therefore subject to the
general rules of law.
No special remedies are applicable to public officials in cases where infringement
proceedings are dismissed.  Public officials acting upon orders issued by the competent courts and
public officials collecting evidence can be held liable only in exceptional cases of misconduct (either
personal or in carrying out their tasks) according to well-established legal precedent.
The judicial authorities cannot be held liable unless they refuse to grant justice or commit
serious misconduct.  When the substance of a decision rendered is contested, the authority of res
judicata  nullifies any liability, but opens the door to appeals.
In the case of industrial designs, Article L.521-1 of the CPI states that a bailiff carrying out a
detailed description, with or without seizure, of the incriminated articles or instruments, under anorder issued by the President of the Court of First Instance, shall give a copy both of the order and of
the instrument recording deposit to the holders of the articles described on pain of nullity and
damages awarded against the bailiff.  The injured petitioner may claim these damages if the bailiff
fails to respect the procedural rules.
In the case of patents, the second paragraph of Article L.615-10 of the CPI states that:
"Where the President of the Court orders an expert opinion or a description with or
without effective seizure, as provided for in Article L.615-5, the appointed law officer
shall refrain from proceeding with seizure, description and any investigation into the
archives and documents of the business if the contract for research or manufacture
comprises a defence security classification."
A similar provision in Article L.623-30 of the CPI applies mutatis mutandis to new plant
varieties.IP/Q4/FRA/1
Page 41
Provisional measures
25. Articles 50.1 and 50.8 require that judicial and administrative authorities have the
authority to order prompt and effective provisiona l remedies to prevent an infringement of any
intellectual property right.  With respect to each intellectual proper ty right identified in
Article 1.2 of the TRIPS Agreement, please identify the provisional measures available toprotect intellectual property rights.  Please ci te the relevant legal authority establishing those
provisional remedies.
(a) Artistic and literary property
In the case of artistic and literary property, provisional measures may be ordered in the
framework of the infringement seizure procedure.
- For copyright:
The first paragraph of Article L.332-1 of the CPI allows police inspectors or
examining judges to seize "copies constituting an unlawful reproduction of the work".
The second paragraph of Article 332-1 of the CPI also states that:
"If seizure will have the effect of delaying or suspending public performances
which are in progress or which have already been announced, a specialauthorization must be obtained from the President of the Court of First
Instance, in an ex parte order .  The President of the Court of First Instance
may also order, in the same form:
1. suspension of all manufacture in progress serving the unlawful
reproduction of a work;
2. seizure, whatever the day or time, of the copies constituting an
unlawful reproduction of a work, whether already manufactured or in
the process of manufacture, of the receipts obtained and of copiesunlawfully used;
3. seizure of receipts from any reproduction, performance or
dissemination, by any means whatsoever, of a work of the mind,
carried out in violation of the author’s rights."
- In relation to software:
The first paragraph of Article L.332-4 of the CPI provides that infringement seizure
"shall be carried out under an ex parte  order by the President of the Court of First
Instance .  The President shall authorize distraint where appropriate".  The third
paragraph allows police inspectors, at the request of any author of protected softwareor of his successors in title, to undertake a descriptive seizure of the infringing
software.
- In connection with related rights:
Article L.335-1 of the CPI provides that "A s soon as offences under Article L.335-4
... have been established, the competent judicial police officers may effect seizure of
the unlawfully reproduced phonograms and videograms, of the copies and articlesIP/Q4/FRA/1
Page 42
manufactured or imported unlawfully and of the equipment specially installed for the
purpose of such acts."
In the case of an ordinary law action in chambers, the judge sitting in chambers is
competent to order any preventive measures necessary to prevent any imminent injury
that may be caused to the author.
(b) Industrial designs, layout designs, new plant variety certificates
There is no special prohibition measure.  The general powers of the judge in chambers to take
injunction measures nevertheless apply in these cases.
In all urgent cases, the President of the Court may therefore:
- Order any measures that are not contested on serious grounds;
- even when such measures are contested on serious grounds, a judge sitting in
chambers may order any prevention or restitution measures needed to prevent either
imminent injury or to stop a manifestly unlawful action.
(Articles 808 and 809 of the NCPC, for the President of the Court of First Instance,
Articles 848 and 849 for the President of the Court of Instance and Articles 872 and 873 for the
President of the Commercial Court).
(c) Patents
There are no provisional seizure measures for patents.
Article L.615-3 of the CPI sets out provisional prohibition measures, subject to a fine or the
furnishing of security to ensure the indemnification of the patentee, if the allegedly infringing activity
is continued.
These are measures in the form of orders given in chambers that depart from the general rules
of law.
(d) Marks
Both prohibition and seizure measures may be ordered:- Provisional prohibition measures are set out  in Article L.716-6 of the CPI and repeat,
mutatis mutandis, the provisions of Article L.615-3 of the CPI on patents;
- seizure measures: Article L.716-8-1 of the CPI provides for seizure by judicial police
officers after the infringement caused by the infringing goods and any material and
equipment used to manufacture them has been recorded.
Moreover, in the case of marks, geographical indications and designations of origin, the
judicial impoundment or seizure of goods set out in Articles L.215-5, 215-6, 216-7 and 215-8 of theConsumer Code are provisional measures.IP/Q4/FRA/1
Page 43
26. Articles 50.1 and 50.8 require that judicial and administrative authorities have the
authority to order prompt and effective provis ional remedies to preserve relevant evidence in
regard to an alleged infringement.  Please identify the provisional measures available to
preserve relevant evidence in regard to an al leged infringement and cite the relevant legal
authority.
There is a special procedure for administration of the means of proof in relation to intellectual
property, namely infringement seizure.  The Presiden t of the Court of First Instance authorizes such a
procedure through an ex parte  order.
In the case of literary and artistic property, infringement seizure (described in questions 1 and
25) is used chiefly to safeguard the means of proof.   Article L.331-2 of the CPI provides that proof of
the existence of any infringement of an artistic or literary property right may be provided not just bythe statements of judicial police officers or agents but also by the statements of sworn agents
designated, as appropriate, by the National Centre for Cinematography, by the professional bodies of
authors or by the societies for the collection and distribution of authors’ royalties.
In the case of industrial property, infringement seizure takes the form either of an actual
seizure of samples or of a descriptive seizure (Article L.521-1 of the CPI for industrial designs,
Article L.716-7 of the CPI for marks, Article L.615-5 for patents and Article L.623-27 for new plant
varieties).
The President of the Court of First Instance may authorize seizure subject to the prior deposit
of security by the plaintiff and unfounded seizure may give rise to damages in favour of the
defendant.
In the case of geographical indications and designations of origin, Article L.215-8 of the
Consumer Code allows goods to be impounded.
27. Articles 50.2 and 50.8 require Members to authorize judicial and administrative
authorities to adopt provisional measures inaudita altera parte .  With respect to each intellectual
property right identified in Article 1.2 of the TRIPS Agreement, please describe briefly the
circumstances in which the judicial and admini strative authorities are empowered to adopt
provisional measures inaudita altera parte  and cite the relevant legal authority.
The President of the Court of First Instance may order an infringement seizure simply at the
request of the owner of the right.
The judge’s decision is based on the facts and the means of proof furnished by the plaintiff.
In this respect, the defendant’s absence is a prerequisite for the success of the measure
requested; this is manifestly the case in relation to a descriptive seizure or an actual seizure.
28. Articles 50.2 and 50.8 require that judicial authorities and administrative bodies be
authorized to grant provisional remedies when a delay is likely to cause "irreparable harm" to
the right holder.  Please describe briefly what  is required by the authorities identified in
answers to questions 25, 26 and 27 to establish "irreparable harm" to the right holder.
In order to establish the imminent prejudice alleged by the owner of the right, the President of
the Court of First Instance before whom an application for a provisional measure has been brought,merely requires the owner of the right to provide proof of his title.IP/Q4/FRA/1
Page 44
29. Articles 50.2 and 50.8 also require that judicial authorities and administrative bodies be
authorized to grant provisional remedies when th ere is a "demonstrable risk of evidence being
destroyed".  Please describe briefly what factor s are considered by the competent authorities in
determining when there is a "demonstrabl e risk of evidence being destroyed".
The "demonstrable risk of evidence being destroyed" is not explicitly mentioned as regards
the preservation of evidence.
Reference therefore needs to be made to the general provisions set out in Article 145 of the
NCPC which empowers the respective Presidents of the various courts to have the proof of facts
established or preserved prior to any proceedings, if there are legitimate grounds.
In the case of patents, therefore, it has been adjudged that the plaintiff must have access to all
documents that may help to provide proof of the infringement, but only to those documents (Court of
First Instance of PARIS (sitting in chambers), 22 December 1989, Annales 90, p. 62).
30. Articles 50.3 and 50.8 require that judicial a nd administrative authorities be authorized
to require an applicant to provid e evidence to establish with a sufficient degree of certainty that
the applicant is the right holder and that infr ingement has occurred or is imminent.  With
respect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, please
describe the evidence required by right holders to establish ownership.
In the case of patents , paragraphs 2 and 3 of Article R.615-1 of the CPI state that:
"The order shall be given by simple request and on the production either of the patent,
the supplementary protection certificate, the certificate of utility or the certificate of
addition, or, in the case set out in the first paragraph of Article L.615-4, of a certified
true copy of the patent application, the supplementary protection certificate, the
certificate of utility or the certificate of addition.  In this latter case, the applicant shall
further prove that the conditions set out in the said Article L.615-4 are satisfied.
If the application is presented by the holder of an exclusive right of exploitation or by
the holder of a licence of exploitation or by the holder of a licence granted pursuant toArticles L.613-10, L.613-11 or L.613-15, the applicant must further prove that the
condition laid down in the second paragraph of Article L.615-2 is satisfied."
In the case of industrial designs , the applicant must produce his certificate of deposit
(paragraph 1 of Article L.521-2 of the CPI).
No provision is made, however, for marks, geographical indications and designations of
origin.
The same type of information will be re quired prior to the commencement of any
proceedings.
Reference should also be made to the provisions on the customs withholding of goods and in
particular to the documents required from the applicant (see question 41).
Lastly, the Registrar of industrial designs, patents or marks must have been notified of any
assignment of rights or grant of licences if they are to be relied upon as against third parties.
If such registration cannot be proven, the assignee or licensee will not be able to initiate legal
proceedings.IP/Q4/FRA/1
Page 45
In the case of copyright , Article L.113-1 of the CPI states that "unless proven to the contrary,
the person or persons under whose name the work is published shall be deemed to be the author".
This provision establishes a simple presumption of the status of author for both natural and legal
persons.  There is no specific provision in this respect regarding infringement seizure procedures.
However, in the case where they are competent, police inspectors or judges must verify the ostensibleregularity of the title produced by the applicant.  The same applies in cases where such a procedure is
ordered by the President of the Court of First Inst ance who, by virtue of his discretionary powers, may
verify whether the application is lawful.
31. Articles 50.3 and 50.8 require that judicial a nd administrative authorities be authorized
to provide a security or equivalent assurance to  protect the defendant.  With respect to each
intellectual property right identifi ed in Article 1.2 of the TRIPS Agreement, please cite the legal
authority establishing a security or equivalent assurance.
In the case of copyright, the third paragraph of Article L.332.1 of the CPI provides that:
"when issuing the orders referred to above [see the cases mentioned in the reply to question 25], the
President of the Court of First Instance may order the person requesting seizure to provide prioradequate security".
In the case of industrial property, only the President of the Court of First Instance is
competent to order infringement seizure and may make this measure subject to the furnishing of
security: Articles L.521-1 of the CPI for industr ial designs, L.615-5 and R.615-1 of the CPI for
patents, and L.716-7 of the CPI for marks.
32. Article 50.4 requires that parties be notified when provisional measures have been
adopted inaudita altera parte .  Please describe briefly the procedures followed by each authority
able to adopt such measures for notifying affected parties and state the time within which suchnotice must take place.
In the case of industrial designs, paragraph 4 of Article L.521-2 of the CPI states that:
"A copy both of the order and of the instrument recording the deposit of security shall
be given to the holders of the articles described on pain of nullity and damages
awarded against the bailiff."
Consequently, on pain of nullity, infringement seizure instruments must be served
immediately on the defendant.
Paragraph 2 of Article R.615-2 of the CPI states, as regards patents, that:
"On pain of nullity and damages awarded ag ainst the bailiff, the latter must, prior to
the seizure, furnish the holders of the articles seized or described with a copy of the
order and, where appropriate, the instrument recording the deposit of security.  A
copy of the order and, where appropriate, of the instrument recording the deposit ofsecurity, must also be left with the holders of the objects seized or described.  A copy
of the seizure report must also be left with the said holders."
However, failure to furnish the order in advance is a formal rather than a substantive ground
for nullity;  such nullity will therefore be upheld only if a prejudice to the defendant is established.
No provision is made for marks or for designations of origin and geographical indications.
The general provisions apply in these cases.IP/Q4/FRA/1
Page 46
33. Article 50.4 also requires that defendants be afforded a review process to determine
whether provisional measures should be modifi ed, confirmed, or revoked.  Please describe
briefly the procedures a defendant must follow to initiate review proceedings in each of the
authorities able to adopt such measures and id entify the period within  which such proceedings
must be initiated.
In the case of copyright, it is possible, under the first paragraph of Article L.332-2 of the CPI,
for the distrainee or the garnishee to request the President of the Court of First Instance, within
30 days of the report of seizure or of the date of the order referred to in Article L.332-1, "to order the
lifting of the seizure or to limit its effects or to authorize resumption of manufacture or of the public
performance, under the authority of an administrato r, appointed as receiver, to hold the proceeds from
such manufacture or performance on behalf of the person to whom the work belongs".  If he allowsthe application of the distrainee or the garnishee, the President of the Court of First Instance, acting in
chambers, may order the applicant to deposit a sum as a guarantee in respect of any damages to which
the author might be entitled (second paragraph of Article L.332.2 of the CPI).
There are no rules specific to industrial property.Reference therefore needs be made to the rules of general law set out in the NCPC, the second
paragraph of Article 496 of which states:
"If the application is allowed, any interested party may submit it to the judge who has issued
the order."
In practice, the defendant must bring proceedings before the judge who issued the ex parte
order and request him to revoke it.  It is only subsequently that the defendant can bring proceedings
before the Court of Appeal.
Article 496 does not set a deadline for submission to the judge issuing the order, who is
entitled to amend or to revoke it even if the case has been brought before the judge weighing the
merits of the case (Court of Cassation, Second Civil Chamber, 26 November 1990, Bull 11, No. 247).
34. Article 50.5 requires that competent authorit ies be authorized to require applicants to
supply other information necessary for the identi fication of goods concerned by the authority
that will execute the provisional measures.  Please describe briefly what other information may
be required by the authorities and cite the le gal authority establishing the basis for this
supplemental information.
No provision is made for industrial designs and marks.
In the case of patents, however, the President of the Court of First Instance may, in the event
of a seizure or description of infringing goods or services, order additional measures to be executed by
the bailiff designated in the ex parte  order.
The second sentence of the second paragraph of Article L.615-5 states that:
"In the same order, the President of the Court may authorize the bailiff to carry out
any steps useful in establishing the origin, nature and extent of the infringement."IP/Q4/FRA/1
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35. Articles 50.6 and 50.8 provide that if proceedings leading to a decision on the merits are
not initiated within a reasonable time, provisional remedies granted by competent authorities
shall be revoked or otherwise cease to have effect, at the request of the defendant.  Please
identify the relevant provisions in the law of France authorizing the revocation or cessation of
provisional measures if review proceedings are not initiated within a reasonable time and
specify what constitutes a "reasonable time period" to initiate proceedings.
(a) Artistic and literary property
In the case of copyright, Article L.332-3 of the CPI states that:
"If the distrainer fails to submit the matter to the competent court within 30 days of
seizure, the distrainee or the garnishee may request the President of the Court of FirstInstance, acting in chambers, to lift the seizure."
In the case of software, Article L.332-4 of the CPI provides that infringement seizure
becomes null and void if no writ or summons is issued within two weeks of the seizure.
(b) Industrial designs
(i) Preliminary application
The final paragraph of Article L.521-1 of the CPI states that:
"If the applicant has failed to institute proceedings before the civil court or
before the court of misdemeanours within  two weeks, the description shall be
null and void as of right, without prejudice to damages."
(ii) Order in chambers
There are no specific rules.  Reference therefore needs to be made to the rules of
general law.
(c) Patents
(i) Preliminary application
The final paragraph of Article L.615-5 of the CPI states:
"If the applicant has failed to institute proceedings before the court within
two weeks, the seizure shall be null and void as of right, without prejudice to
damages."
(ii) Provisional prohibition in chambers
Under the second paragraph of Article L.615-3:
"The application for prohibition or for the deposit of security shall be
admissible only if there appear to be serious grounds for action on the merits
of the case and such action has been initiated within a short period from thedate on which the patentee became aware of the facts constituting the
grounds for the proceedings."IP/Q4/FRA/1
Page 48
It is established legal precedent that the short period referred to in this Article cannot
be less than a few months since the patentee must be able to verify the features of the
allegedly infringing products if he is to initiate serious action.  A period of three
months between the time when the patentee became aware of the infringement and the
date of his writ in respect of proceedings on the merits should not therefore be
considered excessive (PARIS, 25 October 1994, PIBD  95, III, p. 27).
Under Article L.615-3 of the CPI, provis ional prohibition proceedings are opened
"when an infringement action is brought before the court".
The case needs to be brought as promptly as possible before the judge weighing the
merits of the case in order to respect the right of defence and the adversarial principle.
By making the action on the merits into a preliminary, French law therefore goesfurther than the reasonable time mentioned in Article 50:6 of the TRIPS Agreement.
(d) Marks
(i) Preliminary application
The final paragraph of Article L.716-7 of the CPI states that:
"If the applicant has failed to initiate proceedings before the civil court or the
court of misdemeanours within two weeks, the seizure shall be null and voidas of right, without prejudice to damages that may be claimed."
(ii) Provisional prohibition in chambers
Paragraph 2 of Article L.716-6 of the CPI states that:
"The application for prohibition or for the deposit of security shall be
admissible only if there appear to be serious grounds for action on the merits
of the case and such action has been initiated within a short period from the
date on which the beneficiary of the exclusive right of exploitation becameaware of the facts constituting the grounds for the proceedings."
Here again, the short period is understood as a reasonable time that allows the
beneficiary of the exclusive right of exploitation to verify whether or not there has
been infringement.  This period is obviously shorter than the period for patents.
As in the case of patents, provisional prohibition proceedings in chambers can be
opened only when the applicant has initiated proceedings before the court weighing
the merits.
(e) Geographical indications and designations of origin
Lifting of the impoundment set out in Article L.215-8 of the Consumer Code is at the
discretion of the judicial authority.IP/Q4/FRA/1
Page 49
36. Articles 50.7 and 50.8 provide that judicial a nd administrative authorities shall have the
authority to order the applican t to provide the defendant appropriate compensation for any
injury caused by the adoption of provisional measures when said measures are revoked, have
lapsed, or when it has been determined that  there has been no infringement or threat of
infringement.  Please describe how the competent authorities determine "appropriate
compensation".
The general rules of law establishing prejudice apply in this respect and are based on
Articles 1382 and 1383 of the Civil Code.
The whole of the prejudice suffered has to be assessed and must therefore include profits lost
as a result of seizures or confiscations.
In the case of patents, the second paragraph of Article L.615-7 of the CPI states:
"The value of the articles confiscated shall be taken into account when computing the
compensation to be awarded to the beneficiary of the decision."
Special requirements related to border measures
37. Article 51 of the TRIPS Agreement requires th at countries adopt procedures that enable
right holders to request suspension of the importation of counterfeit trademarked goods and
pirated copyrighted works.  Please identify the competent authority in France authorized to
accept applications for a request to suspend release of suspected infringing goods and cite the
relevant law or regulation governing such authority.
Under Articles L.521-7 and L.716-8 of the CPI, the customs administration may, at the
written request of the owner of a deposited industrial  design or a registered mark or the beneficiary of
an exclusive right of exploitation, lodged at the Direction nationale du renseignement et des enquêtes
douanières (DNRED) (National Directorate of Customs In formation and Enquiries), withhold in the
course of its inspections goods that the persons listed above allege to be infringing the said industrial
designs or marks for which they have obtained registration or with regard to which they enjoy an
exclusive right of use.
Likewise, Article L.335-10 of the CPI allows th e DNRED, at the written request of the owner
of copyright or of related rights, to withhold in the course of its inspections goods that the latter
alleges to be infringing.
Articles R.335-1, R.521-1, R.716-1 of the CPI speci fy, moreover, in identical terms, that this
application may be lodged prior to the entry of the allegedly infringing goods into France.  In this caseit is valid for one year and may be extended.
Patents are clearly excluded from this type of measure and there is no such provision either
for new plant variety certificates or for layout designs for semi-conductors.
38. Please describe the procedures a right holder must follow to obtain border protection by
the competent authorities, e.g., if there is a form al application that must be submitted to the
competent authority, judicial or administrative, and the information required in the request for
suspension and cite the law or regulations providing such procedures.
In order to establish a presumption of infringement to the customs administration, the owner
of the intellectual property right must furnish:IP/Q4/FRA/1
Page 50
- in the case of artistic and literary property:  any information by which the
infringing work or service can be identified, as well as a description of the allegedly
infringing goods to which the withholding application relates (Article R.335-1 of the
CPI);
- in the case of marks:  the designation and registration number of the mark concerned,
and a description of the allegedly infringing goods to which the withholdingapplication relates (Article R.716-1 of the CPI);
- in the case of industrial designs:  the subject matter and national number of the
industrial design concerned, together with an identity certificate issued by the
National Institute of Industrial Property and a description of the allegedly infringing
goods to which the withholding application relates (Article R.521-1 of the CPI).
The Order of 6 February 1995 also states that:
"The application submitted to the said administration must include: …(b) A description of the authentic goods, accompanied by the following:
- A photograph of the products and/or any other graphical reproduction
of protected elements;
- where possible, a sample of the product(s);- details of the place(s) of manufacture of the goods;- the names of companies authorized to import the goods.
(c) A description of the allegedly infringing goods accompanied, where possible,
by the following:
- A photograph or any other graphical reproduction;
- a sample of the product(s);
- the country or countries of origin and/or provenance;- the name and address of manufacturers, distributors, consignees or
importers;
- the mode of transport used;
- where appropriate, a copy of legal rulings already given in respect of
the right infringement cited by the holder."
39. Please explain whether procedures, permissible under Article 51 of the TRIPS
Agreement, are available to stop the export of goods suspected of infringing copyrights and/or
trademarks.
In the case of marks, Law No. 94-102 of 5 February 1994 introduces an absolute ban on the
import or export of goods bearing an infringing mark (Articles L.716-8 to 12 of the CPI).IP/Q4/FRA/1
Page 51
In the case of artistic and literary property, the third paragraph of Article L.335-2 of the CPI
likewise prohibits the import or export of counterfeit works.
Article L.335-4 of the CPI punishes any import or export of phonograms or videograms that
infringe the rights of the producer or performer.
There is no such express provision in the case of industrial designs.
In accordance with the principle of artistic unity, however, industrial designs may benefit
from the protection accorded to artistic and literary property.
40. Article 52 of the TRIPS Agreement require s that rights holders wishing to stop
importation of counterfeit trademarked goods or pirated copyrighted works present evidence tothe competent authorities that there is prim a facie infringement of their trademark or
copyright.  Please explain what evidence will constitute prima facie infringement in France.
It is in the applicant’s interest to provide as much information as possible to enable infringing
goods rapidly to be identified:
- Commercial designation of the authentic goods, description of the right, place of
manufacture of the goods and companies authorized to manufacture, import and
market them.  Photographs, plates, catalogues or samples of the authentic goods and
the allegedly infringing goods should also be attached where possible;
- information on the allegedly infringing goods so that they can be compared with the
authentic goods.
This information is not exhaustive.The DNRED will then have evidence enabling it to rule whether or not there has been
infringement.
41. Article 52 also requires that the right holder provide a "sufficiently detailed description
of the goods" to be stopped.  Please explain what is required of the right holder in France for a
description to be "sufficiently detailed".
See the reply to question 40.
42. Article 52 requires that the competent auth orities notify the right holder that his
application is accepted within a reasonable time.  Please explain within what period of time thecompetent authority responds to a request for suspension of release of goods and, if the
application is accepted, the length of time during which enforcement action will be taken.
The reasonable time set out in Article 52 is assessed in concreto .
Article 3.5 of Council Regulation No. 3295/94 of 22 December 1994, directly applicable in
the Member States of the European Union, states that:
"The competent customs service with which an application drawn up pursuant to paragraph 2
has been lodged shall deal with the application and shall forthwith notify the applicant in
writing of its decision.IP/Q4/FRA/1
Page 52
Where that service grants the application, the service shall specify the period during which the
customs authorities shall take action.  That period may, upon application by the holder of the
right, be extended by the service which took the initial decision."
Pursuant to this Regulation, Article 4 of the Order of 6 February 1995 states that the DNRED
examines the application and informs the applicant or his agent of the action to be taken.
In practice, the withholding application must be in writing and lodged with the specialist
service (DNRED).
This service must check that the owner’s application is accompanied by all the documents
that it is compulsory to attach, and an undertaking by the applicant to notify the service of any change
in the grounds on which his application is based, in particular the loss of his right.
The DNRED then investigates the case and inform s the applicant forthwith in writing of the
action to be taken.
Under Article 5 of the same Order, an applicati on to withhold goods is valid for one year and
can be extended following a letter from the applicant or his agent.
43. Article 53.1 requires that the competent author ities have the authority to secure from an
applicant a security or equivalent assurance suff icient to protect a defendant and to prevent
abuse.  Please verify that the competent auth orities identified above are empowered to require
security or equivalent assurance and provide cita tions to the provisions of law or regulation that
grant them that authority.
Article 3.6 of the above-mentioned Regulation states that:
"Member States may require the holder of the right, where his application has been
granted or where action … has been taken pursuant to Article 6 (1), to provide a
security:
- To cover any liability on his part vis-à-vis  the persons involved in one of the
operations referred to in Article 1(1)(a) where the procedure initiated
pursuant to Article 6(1) is discontinued owing to an act or omission by the
holder of the right of where the goods in question are subsequently found to
be counterfeit or pirated;
- to ensure payment of the costs incurred in accordance with this Regulation, in
keeping the goods under customs control pursuant to Article 6."
In domestic law, there is no provision under which it is mandatory for applicants to provide
security prior to any customs withholding operation.
The applicant must, however, initiate proceedings before the civil or criminal courts within
ten days in order to maintain withholding operations in force.
These courts have the power to order the applicant to provide security in order to cover any
injury to the alleged infringer.IP/Q4/FRA/1
Page 53
44. Article 53.2 provides that the owner, importer, or consignee of goods involving
industrial designs, patents, layout-designs or undisclosed information that have been suspended
by customs authorities should be able, in certa in circumstances, to have such goods released on
payment of security sufficient to protect the right holder from infringement.  Please identify
what forms of intellectual property, if any, are subject to provisions of Article 53.2 and cite to
the relevant provisions of law or regulations.
Paragraph 2 of Article 7 of the Regulation states that:
"In the case of goods suspected of infringing design rights, the owner, the importer or
the consignee of the goods shall be able to have the goods in question released or
their detention revoked against provision of a security, provided that:
- The customs service or office ... has been informed, within the time-limit
referred to, that the matter has been referred to the authority competent to
take a substantive decision;
- on expiry of the time-limit, the authority empowered for this purpose has not
imposed interim measures;
- all the customs formalities have been completed."
The persons covered by this Article must, however, provide a security or an equivalent
guarantee in order to cover any prejudice that the applicant might suffer as a result of the release of
the allegedly infringing goods.
45. Article 54 requires that the importer and th e applicant be notified promptly of the
suspension or release of goods.  Please specify the period within which the competent authority
to issue a notice that the release of goods has been suspended.
Under Articles L.335-10, L.521-7 and L.716-8 of the CPI, the applicant, as well as the
declarer or holder of goods, has to be informed  immediately by the customs administration of the
withholding operations that they have undertaken.
When the customs administration withholds contentious goods, it must therefore:- Officially notify the applicant that withholding has taken place;- simultaneously inform the public prosecutor with geographical jurisdiction and the
declarer or the holder of the goods of this operation.
This information must be forwarded as rapidly as possible by mail or fax.
46. Article 55 makes it clear that the right ho lder applying for suspension of infringing
goods must initiate a proceeding on the merits in an appropriate forum within a reasonable
period of time or the goods will be released.  Plea se identify the fora in which an applicant/party
may initiate proceedings on the merits that will allow customs authorities to hold the goods
beyond ten working days.
Articles L.335-10, L.521-7 and L.716-8 of the CP I provide that withholding measures are
lifted as of right where the applicant fails, within ten working days of notification of the withholding
of the goods, to prove to the customs services:IP/Q4/FRA/1
Page 54
- Either that interim measures have been decided by the President of the Court of First
Instance;
- or that he has instituted proceedings before the civil court or the court of
misdemeanours and has provided the necessary guarantees to cover his liability in the
event of the infringement subsequently being considered unfounded.
47. Article 55 provides that a review is to take place within a reasonable time at the request
of the defending party to determine if the susp ension measures should be modified, revoked or
confirmed pending the outcome of the proceeding on  the merits.  Please identify the forum that
is authorized to conduct such a review and describe the procedure and cite the applicable law or
regulations.
Depending on the type of proceedings, the holder of the goods seized may then appeal against
the measures ordered against him before the civil court (bench or President of the Court of First
Instance) or criminal court that has given the decision.
48. Article 56 requires that the authorities be able to require the applicant to compensate
the defending party for any injury caused if  the detention of goods was unfounded.  Please
identify the authorities that can order the appl icant to pay the importer, consignee or owner
compensation for injury caused by wrongful detention or through the detention of goods
released pursuant to Article 55 and cite to the applicable law or regulations.
The judge weighing the merits of the case decides on the amount of the injury suffered by the
holder of the allegedly infringing goods.
There are no specific provisions on intellectual property rights.  Compensation for the injury
caused by the infringement is assessed in accord ance with the rules on civil liability laid down in
Articles 1382 and 1383 of the Civil Code.
Provision is nevertheless made for the President of the Court of First Instance ordering the
infringement seizure to order the person requesting such seizure to provide adequate security
(Article L.332-1 of the CPI) or to require the appl icant (Article L.521-1 of the CPI) to compensate a
defendant who is wrongfully enjoined.
Article L.716-5 of the CPI contains similar provisions for marks.A judge sitting in chambers is not competent, however, to order a final measure such as a
measure establishing the amount of the prejudice (only a provision whose principle or amount can be
reviewed could be ordered by such a judge: the second paragraph of Article 809 of the NCPC;reference should be made to the second paragraph of Article 849 and the second paragraph of
Article 873 of the NCPC for the specific case of industrial designs).
49. Article 57 requires that the competent author ities be able to authorize the right holder
to inspect the detained goods in order to substantiate the claims.  Please explain how right
holders are provided an opportunity to insp ect suspect goods that have been detained by
customs authorities.
The final paragraph of Article 6.2 of the EC Regulation empowers the Customs Office to
grant the applicant and the persons concerned by the withholding operation leave to inspect the goods
withheld.IP/Q4/FRA/1
Page 55
Under French law, the owner of an intellectual property right can always request the President
of the Court of First Instance to designate a bailiff to carry out the description and seizure operations
set out in Articles L.521-1, L.615-5 and L.716-7.
In practice, the Customs Office grants the applicant or his representative leave to inspect the
goods that have been withheld.
The service may take samples of contentious goods in order to facilitate further proceedings,
at the request of the right holder’s representative.
50. Article 57 also requires that, where the decisi on on the merits favours the right holder,
the competent authorities also may be given au thority to give the right holder information
regarding the importer, consignee or consignor.  If competent authorities in France can provide
information regarding the importer, consignee or consignor to the right holder, please explain
how information regarding names and addresses of consignors, importers and consignees and
quantities of goods are provided to the applicant after a positive decision of infringement is
made, e.g., authorities automatically providing information or by submission of a written
request from the right holder, etc.  Please cite to the law or regulations providing suchauthority.
Article 8.3 of the European Council Regulation authorizes the Customs Office to inform the
holder of the intellectual property right, upon request, of the names and addresses of the consignor, of
the importer or exporter and of the manufacturer of the goods found to be counterfeit or pirated and ofthe quantity of the goods in question.
In domestic law, Article L.335-10 of the CPI,  and Articles L.521-7 and L.716-8 of the CPI all
state:
"For the purpose of the institution of the legal proceedings referred to in the foregoing
paragraph, the plaintiff may require the customs administration to communicate the names
and addresses of the sender, the importer and the consignee of the goods withheld or of the
holder thereof, and also the quantity thereof, notwithstanding the provisions of Article 59 bis
of the Customs Code concerning the professional secrecy to which all officials of the customsadministration are bound."
51. Article 58 specifies procedures to be followed where the competent authorities can act
ex officio.  Please explain whether the competent authorities in France are empowered to act
ex officio and, if so, please identify the intellectual property areas subject to ex officio action.
Pursuant to the EC Regulation, the customs service may, in the case of marks, act ex officio
when it is evident that the goods are counterfeit or pirated.
In such cases, the customs administration informs the owner of the right, where known, of its
possible infringement.
The customs administration then has a period of three days during which the goods can be
withheld in order to enable the owner of the right to lodge an application for action with this
administration (Article 4 of the Regulation).
In domestic law, the customs administration may act ex officio only in respect of marks
(Article L.715-9 b of the CPI) either in the co ntext of customs controls within France or when
verifying goods subject to restrictions on circula tion within the European Community (Article 38.4 of
the Customs Code).IP/Q4/FRA/1
Page 56
The powers conferred as regards provisional measures should also be explained.
Partial lifting of the professional secrecy to which customs officials are bound, with reference
to the information given in reply to question 50, does not apply when the customs administration acts
on its own initiative.
In this case, the owner of the mark is informed  only of the total volume of each article seized
(Circular of 21 March 1995, No. CRIM-95-9 from the Minister of Justice concerning the prevention
of infringement of marks).  Similarly, Law No. 89-1008 of 31 December 1989 empowers the
DGCCRF to act on its own initiative in the case of trade mark rights.
Moreover, in cases of non-conformity and falsification or fraud concerning the nature,
composition … or origin of products, Article L.215- 1 of the Consumer Code empowers officials of
the DGCCRF, police officers and approved and authorized State officials to carry out investigations
and report offences in this respect.
52. Article 59 identifies the remedies that are to be available, including destruction or
disposal of infringing goods outside the stream of commerce.  Please explain what the law in
France permits regarding the disposition of in fringing goods, i.e., does the law allow for
destruction, disposal or both.  Please cite to  the law or regulations providing such authority.
Article 8.1 of the EC Regulation empowers member States to destroy goods found to be
counterfeit or pirated or to dispose of them outside commercial channels in such a way as to preclude
injury to the owner of the right and at no cost to the exchequer.
53. Please identify:
(a) The competent authority that decides th e disposition of the goods, i.e., whether
the goods will be destroyed or disposed of outside the stream of commerce;  and
(b) the competent authority that carries ou t the destruction or disposal of the goods.
The courts deciding whether or not goods are infringing may order their destruction or their
disposal and designate the authority that will carry out such action.
54. Article 60 permits Members to exclude from the provisions for border enforcement
small quantities of goods of a non-commercial nature carried by passengers or sent in small
consignments.  Please describe what constitutes a de minimis  import that is excluded from the
border measures under the law of France.
Article 10 of the EC Regulation excludes goods of a non-commercial nature contained in
travellers’ personal luggage from its scope of application, within the limits laid down in respect of
relief from customs duty.
Law No. 94-102 of 5 February 1994 excludes any " de minimis " notion as regards the offence
of mark infringement.
The French criminal system does not therefore set any limits on the application of the law that
depend on the status of the person involved, or the quantity, value and destination of the goods thatthey are carrying.IP/Q4/FRA/1
Page 57
Small quantities of counterfeit goods contained in traveller’s personal luggage, used for non-
commercial purposes, may therefore be subject, depending on the right involved, to withholding
procedures on the basis of Articles L.335-10, L.521-7 or L.716-8 of the CPI.
Criminal procedures
55. Article 61 of the TRIPS Agreement requires that Members have criminal procedures
and penalties, including imprisonment and/or mone tary fines sufficient to act as a deterrent, at
least for cases of wilful trademark counterfeiti ng and copyright infringement on a commercial
scale.  Please describe the provisions in the la w of France that fulfil that obligation and provide
legal citations.
(a) Artistic and literary property rights
Under Article L.335-2 of the CPI, "the infringe ment in France of works published in France
or abroad" is punishable by imprisonment of two years and a fine of F 1,000,000.
The provisions defining infringement of copyright are set out in the first paragraph of
Article L.335-2 and in Article L.335-3 of the CPI.
In the case of related rights, the first and second paragraphs of Article L.335-4 of the CPI
impose the same penalties for "any fixation, reproduction, communication or making available to the
public, on payment or free of charge, or any telediffusion of a performance, a phonogram, avideogram or a program made without authorization, where such is required, of the performer, the
producer of the phonogram or videogram or the audiovisual communication enterprise".
The fourth paragraph of Article L.335-4 of the CPI punishes "failure to pay the remuneration
due to the author, the performer or the producer of the phonogram or videogram in respect of privatecopying or public communication or of the tele diffusion of phonograms" by a fine of F 1,000,000.
Article L.335-9 of the CPI doubles the penalties if the offences set out in Articles L.335.2 to
L.335.4 of the CPI are repeated or if the offender has been contractually bound to the injured party.
Article L.335-8 of the CPI provides for the criminal liability of legal persons for the above-
mentioned offences and establishes two types of penalty:
- A fine, with reference to Article L.131-38 of the New Criminal Code which provides
that the maximum fine imposed on legal persons is an amount corresponding to "five
times that specified for natural persons under the law that punishes the offence", i.e.
F 5,000,000 in this particular case;
- the penalties set out in Article L.131-39 of the NCP.Moreover, Article L.335-5 provides, when acts of infringement have been committed, that
establishments that have served for the commission of such offences may be closed.
(b) Industrial designs
Articles L.521-4 and L.521-6 of the CPI provid e for imprisonment of two years, which is
doubled if the offence if repeated or if the offender is or has been contractually bound to the injuredparty.IP/Q4/FRA/1
Page 58
Articles L.521-4 to L.521-6 of the CPI provid e for a fine of F 1,000,000, which is doubled if
the offence is repeated or if the offender is or has been contractually bound to the injured party.
Paragraphs 2 and 3 of Article L.521-4 of the CPI provide, when acts of infringement have
been committed, that establishments that have served for the commission of such offences may be
closed.
If the offence is repeated, in addition to doubling the penalties, paragraph 2 of Article L.521-6
of the CPI provides that "the guilty parties may be deprived, for a period not exceeding five years, of
the right to elect and be elected to commercial courts, chambers of commerce and industry and
professional chambers and to industrial tribunals".
Under Article L.521-5 of the CPI, legal persons may be held liable for acts of infringement.
The fines imposed upon them are five times greater than those imposed on natural persons.
(c) Marks
In the case of marks, Articles L.716-9 et seq. of the CPI, Book II and the whole regulatory
part of the Consumer Code repeat all the provisions  described above for industrial designs relating to
imprisonment, fines, closures of establishments and repeated offences.
In addition, Article L.716-13 of the CPI gives the court the possibility of ordering the posting
of its decision.
Article L.716-11-2 of the CPI repeats the provisions of Article L.521-5 in respect of the
liability of legal persons for acts of infringement.
(d) Patents
Infringement offences are punished by imprisonment of two years and/or a fine of
F 1,000,000 pursuant to Article L.615-14 of the CPI.  If the offence is repeated, or if the offender is or
has been contractually bound to the injured party, the penalties imposed are doubled
(Article L.615-14-1 of the CPI).
(e) New plant variety certificates
Under Article L.623-32 of the CPI, if there is repeated infringement of a new plant variety
certificate, imprisonment of six months can be ordered in addition to the fine specified below.
(f) Geographical indications and designations of origin
Under Article L.213-1 of the Consumer Code , any person, whether or not party to the
contract, who has misled or attempted to mislead the contractor by whatever means or process, even
through the agency of a third party, about the nature, species, origin, substantive qualities,
composition or content of active principles of any goods, is punished by imprisonment of two yearsand by a fine of a maximum of F 25,000 or by one of these two penalties alone.
Article L.213-5 of the Consumer Code states  that any person having been sentenced to
criminal penalties pursuant to Chapters II to VI of  this Title or to the following provisions and who,
within five years of the date on which this sentence became final, has committed a new offence fallingwithin the scope of application of Chapters II to VII of this Title or of the following provisions:
Book II and the regulatory part of the Consumer Code (in particular Article R.215-2 governing reports
by officials), is deemed to be a re-offender.IP/Q4/FRA/1
Page 59
Violations of invoicing rules or acts of misleading publicity or fraud that have been reported
may also be mentioned in support of an infringement case.
In addition, Article L.115-8 of the Consumer Code refers to "any person who claims that the
use of a designation of origin is directly or indirectly prejudicial to him and violates his rights … .
The same action may be brought by trade unions or associations that have been regularly constitutedfor at least six months, in relation to rights it is their duty to defend …". Article L.115-12 of the Code
states that "any person, trade union or association meeting the duration and interest requirements set
out in Article L.115-8 may join in the proceedings".
Article L.115-17 of the Consumer Code states that "the persons, trade unions and associations
listed in the first two paragraphs of Article L.115-8 who claim to be injured by the offence set out in
Article L.115-16 may institute civil proceedings in accordance with the provisions of the Code ofCriminal Procedure".
Article L.421-1 of the Consumer Code provides that "legally established associations whose
specific statutory objective is to protect the interests of consumers may, if they are approved for this
purpose, exercise the recognized rights of the civil party in respect of acts that directly or indirectlyprejudice the collective interests of consumers …" . Pursuant to Article L.421-7 of the Code, "the
associations referred to in Article L.421-1 may take part in proceedings before the civil courts …
where the purpose of the initial demand is to compensate for prejudice suffered by one or more
consumers due to acts that do not constitute a criminal offence".
56. Article 61 also requires that remedies in a ppropriate cases include the seizure, forfeiture
and destruction of infringing goods and any materials and implements the predominant use of
which has been the commission of the offence.  Please explain the provisions in the law of
France that provide for such remedies, describe the circumstances in which those remedies
would be imposed and provide legal citations.
(a) Artistic and literary property
In the case of infringements of literary and artistic property rights, paragraph 1 of Article
L.335-6 allows for the confiscation of all or part of the proceeds obtained by reason of theinfringement and the confiscation of all phonograms, videograms, articles and copies that are
infringing or have been unlawfully reproduced an d of the equipment specifically installed for the
purpose of committing the offence.
(b) Industrial designs
Articles L.521-3 and L.521-3-1 of the CPI provide that, even if the defendant is released, the
objects infringing rights may be confiscated and, in the event of  conviction, also "the instruments
having served specifically to manufacture the incriminated articles."
(c) Marks
Under Article L.716-8-1 of the CPI, "officers of  the judicial police may, as soon as offences
under Articles L.716-.9 and L.716-10 have been reported, effect the seizure of goods unlawfully
manufactured, imported, stocked, placed on sale, deli vered or supplied, and of any material and
equipment specially installed for the purpose of such unlawful acts." Article L.716-14 of the CPI
authorizes the court to order that the confiscated g oods be delivered to the owner of the mark that has
been infringed, without prejudice to any damages, or that the goods be destroyed.IP/Q4/FRA/1
Page 60
57. Article 61 also indicates that Members may provide for criminal procedures and
penalties in cases of wilful infringement of oth er forms of intellectual property.  Please describe
any provisions in the law of France that provide  for such procedures and remedies and provide
legal citations.
(a) Artistic and literary property
In the case of copyright, the third paragraph of Article L.335-2 of the CPI makes "the sale,
export and import of infringing works" into an offence separate from infringement and punishes them
by imprisonment of two years and a fine of F 1,000,000.  Any import or export of phonograms or
videograms that infringe the rights of producers or performers are punished by the same penalties (the
second paragraph of Article L.335-4 of the 2 CPI).
In addition, complicity in or concealment of an infringement are punished in accordance with
the general principles of criminal law.
(b) Patents
If a patent application has been made public before the Ministry of Defence has authorized it
or before the expiry of the period of five months from the date of filing of the application and if this
procedural violation has prejudiced national defe nce, imprisonment of five years may be ordered
(Article L.615-13 of the CPI).
Violation of this procedure in relation to international patent applications or applications for
European patents is subject to the same pena lty (Articles L.615-15 and L.616-16 of the CPI).
The fine that may be imposed is F 1,000,000 and may be doubled if the offence is repeated.
Any person improperly claiming to be the owner of a patent or of a patent application is liable
to a fine of F 50,000, which may be doubled if the offence is repeated within five years
(Article L.615-12 of the CPI).
Violation of the procedure set out in Articles L.612-9 and L.612-10 of the CPI (protecting the
interests of national defence) is liable to a fine of F 30,000 even if the violation has not prejudiced
national defence (Article L.615-13 of the CPI).
Violation of this same procedure in relation to international patent applications or applications
for European patents is punishable by a fine of F 40,000 (Articles L.615-15 and L.615-16 of the CPI).
(c) New plant variety certificates
Article L.623-34 of the CPI states that "any pe rson improperly claiming to be the owner of a
new plant variety certificate or an application for such certificate shall be liable to a fine of F 10,000.
If the offence is repeated (within a period of five years), the fine may be doubled …".
Imprisonment of five years may also be ordered if a new plant variety that is the subject of an
application for a certificate is made public or exploited before the expiry of period of five months
from the date of filing of the application and if this procedural violation has prejudiced national
defence (Article L.623-35 of the CPI).
Article L.623-35 of the CPI provides that violat ion of the procedure at a stage that concerns
protection of the interests of national defence, is punishable by a fine of F 30,000 (which is notIP/Q4/FRA/1
Page 61
combined with the prison term mentioned above unless the violation has prejudiced the interests of
national defence).
58. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least for
wilful trademark counterfeiting and copyright piracy.  Please explain how the penalties
provided under the laws of France comply with that obligation.
This latter point has more to do with the foundations of criminal law.
It should be noted, however, that an infringer pursued on criminal grounds cannot be
dispensed from appearing at the hearing of the court by producing a letter of representation.  Such
letters are possible, pursuant to the first paragraph of Article 411 of the Code of Criminal Procedure,
solely when the penalty than can be imposed is st rictly less than imprisonment of two years, which is
not the case for industrial property.
The Law of 5 February 1994 incorporated into the Intellectual Property Code raises,
moreover, the fines that can be imposed in respect of all intellectual property rights to F 1,000,000
(prior to this, the fine in respect of industrial designs was F 500,000).
This penalty seems to be effective as a deterrent: the amount chosen is halfway between the
amounts set out in the Criminal Code for simple la rceny, on the one hand (Article 311-3 of the New
Criminal Code: F 300,000), and simple concealment or abuse of trust, on the other hand
(Articles 311-1 and 321-5 of the Criminal Code: F 2,500,000).
Under French law, infringement of a mark al so constitutes a customs offence (Articles 38.1
and 38.4 of the Customs Code).  The fine that can be imposed on the offender may be between one to
two times the value of the infringing g oods (Article 414 of the Customs Code).
[Follow-up questions from the United States]
1. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, inte grated circuit layout-design and trade secret
enforcement for each of the years 1996 and 1997, including the number of cases filed;
injunctions issued; infringing products seized; infringing equipment seized; cases resolved(including settlement); and the amount of damages awarded.
The French authorities are obviously willing to provide statistical information concerning the
decisions of French courts in relation to intellectual property.
In order, however, to provide an accurate reply to the questions raised at the TRIPS Council,
the French authorities have started to consider the means and procedures needed successfully to
conduct a survey of this type.
The French authorities will keep the TRIPS Council informed of developments in this area.
2. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringement fo r each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions and the amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actu ally served or was suspended)
and any other information establishing that your criminal system operates effectively to deter
copyright piracy and trademark counterfeiting.
Please see the reply to follow-up question 1 from the United States.
__________