Evidence in French IP Infringement Proceedings: A Purchaser’s Lack of Independence No Longer Automatically Invalidates a Purchase Report
Evidence in French IP Infringement Proceedings: A Purchaser’s Lack of Independence No Longer Automatically Invalidates a Purchase Report
In French intellectual property infringement proceedings, a rights holder must be able to establish precisely which allegedly infringing product was offered for sale, by whom, where and on what date. One frequently used method of obtaining such evidence is a constat d’achat: a purchase made by a third party under the observation of a bailiff, who records the transaction in an official report.
In a landmark judgment of 12 May 2025, the Mixed Chamber of the French Court of Cassation clarified whether the purchaser must be independent of the rights holder requesting the report. The Court held that a lack of sufficient guarantees of independence does not, by itself, render the purchase report null and void. Instead, the trial judge must assess whether, in light of all the circumstances, the purchaser’s lack of independence affects the evidential value of the report.
The ruling is particularly important for intellectual property enforcement because it distinguishes an ordinary purchase report from an interim measure for collecting proof (saisie-contrefaçon), a court-authorised evidential seizure subject to stricter safeguards.
The role of a purchase report in IP infringement proceedings
Under French law, intellectual property infringement may generally be proved by any means, provided that the evidence has been obtained fairly. A purchase report is therefore commonly used to document the public marketing and sale of a product suspected of infringing a trade mark, design, copyright or other intellectual property right.
When acting at the request of a private party and without prior judicial authorisation, a bailiff cannot enter a shop and make a covert purchase personally. The bailiff may, however, ask a third-party purchaser to enter the premises, buy the product and hand it over immediately on leaving the shop. From a public place, the bailiff records what he or she directly observes, including the purchaser entering and leaving the premises and the immediate delivery of the product, receipt and payment documents.
This procedure can serve several purposes in an infringement strategy. It may:
- establish that the disputed product was offered for sale in France on a particular date;
- identify the seller and the relevant distribution channel;
- secure a sample of the allegedly infringing product and the corresponding invoice or receipt;
- provide evidence for the subsequent infringement action; and
- support an application for a saisie-contrefaçon where further evidence concerning the origin, quantities, supply chain or extent of the infringement is required.
Unlike a saisie-contrefaçon, a purchase report does not authorise entry into non-public premises, searches, compulsory disclosure or access to confidential documents. Its scope is limited to documenting a commercial transaction taking place in premises open to the public.
Background to the Rimowa dispute
Rimowa discovered that HP Design was offering for sale, under the “Bill Tornade” brand operated by Intersod, a suitcase reproducing the original features of Rimowa’s grooved polycarbonate “Limbo Multiwheel” suitcase.
Rimowa arranged for the alleged infringement to be documented by a bailiff through purchase reports dated 4 May and 16 June 2016. It subsequently carried out a saisie-contrefaçon and brought infringement proceedings against HP Design and Intersod.
The purchase recorded on 4 May 2016 was made by a trainee at the law firm representing Rimowa. The trainee entered the shop alone and returned a few minutes later with the allegedly infringing suitcase, an invoice and a card-payment receipt, all of which were immediately handed to the bailiff.
Intersod challenged the purchase report. It argued that the principles of fairness in the administration of evidence and the right to a fair trial required the person assisting the bailiff to be independent of the party seeking to prove the infringement. According to Intersod, the trainee’s connection with Rimowa’s counsel meant that the report should be declared void, without any need to establish an unfair stratagem or actual manipulation of the evidence.
The Paris Court of Appeal rejected that argument. It found that the purchaser’s identity and status had been expressly disclosed in the report and that no unfair stratagem had been demonstrated. Intersod appealed to the Court of Cassation.
The previous requirement of independence
In a judgment of 25 January 2017 (First Civil Chamber, No. 15-25.210), the Court of Cassation had held that the right to a fair trial required a bailiff drawing up a purchase report to be assisted by a third party independent of the requesting party. A trainee at the law firm acting for that party did not meet this requirement, and the resulting operations were liable to be annulled.
That approach transposed to purchase reports the rules developed for a saisie-contrefaçon. During a saisie-contrefaçon, a court may authorise a bailiff to enter premises, describe or seize allegedly infringing goods and obtain documents concerning the infringement. An expert may assist the bailiff with technical matters, but that expert must be independent of the party that obtained the order. An employee, agent or representative of the rights holder will generally not satisfy that requirement.
The 2017 decision applied the same independence requirement to a third party whose much narrower role was simply to purchase a product in a shop. This resulted in divergent decisions among the lower courts and was criticised as excessively formalistic.
The Court of Cassation’s new approach
In its judgment of 12 May 2025, the Mixed Chamber expressly reconsidered the 2017 position. The Court first emphasised the difference between the two methods of obtaining evidence in IP infringement proceedings. A saisie-contrefaçon is an intrusive measure authorised by a judge. It may lead to the search for and disclosure of confidential information or trade secrets. The independence of an expert assisting the bailiff is therefore an important procedural safeguard.
By contrast, the purchaser involved in a constat d’achat does not act as an expert and is not selected for any particular technical knowledge. The purchaser’s role is limited to entering premises open to the public, buying a product and handing the product and the related documents to the bailiff. The resulting report must then be disclosed in the proceedings and may be challenged by the alleged infringer.
The Court therefore held that the absence of sufficient guarantees of independence on the part of the purchaser is not a ground for automatically annulling the report. The issue is one of evidential weight: the trial judge must assess whether the connection between the purchaser and the requesting party undermines the reliability of the evidence in the particular circumstances.
The Court considered this solution consistent with Article 3 of Directive 2004/48/EC on the enforcement of intellectual property rights, which requires enforcement procedures not to be unnecessarily complicated. It also relied on Recital 20 of the Directive, which recognises the importance of ensuring that effective means of presenting, obtaining and preserving evidence are available to intellectual property rights holders.
Why the report remained reliable in this case
The Court identified several circumstances supporting the evidential value of Rimowa’s purchase report:
- the report expressly identified the purchaser and disclosed that he was a trainee at the law firm representing Rimowa;
- from the public highway, the bailiff observed the purchaser enter the shop without a bag and leave a few minutes later carrying a suitcase, an invoice and a card-payment receipt;
- the purchaser handed those items to the bailiff immediately;
- the photographs showed that the suitcase bore the “Bill Tornade” brand and that the same price appeared on the product label, the invoice and the payment receipt; and
- Intersod neither alleged nor demonstrated any stratagem by Rimowa, the purchaser or the bailiff.
In those circumstances, the Paris Court of Appeal was entitled to conclude that the purchaser’s connection with Rimowa’s counsel did not compromise the objectivity of the findings recorded in the report.
The Court of Cassation therefore upheld the Court of Appeal’s ruling on the purchase report and the evidence of infringement. It partially set aside the judgment only on a separate unfair competition issue: the Court of Appeal had not identified facts distinct from those already relied upon to establish infringement. That partial reversal does not affect the new rule governing purchase reports.
Practical consequences for IP rights holders
The judgment facilitates the use of purchase reports as evidence in French intellectual property infringement proceedings. A report will no longer be automatically annulled merely because the purchaser is connected with the rights holder or its counsel.
However, the decision does not mean that the purchaser’s independence has become irrelevant. A lack of independence may still reduce or even deprive the report of evidential weight if the circumstances create doubt about the origin of the product, the conditions of purchase or the accuracy of the bailiff’s observations.
Finally, the ruling must not be extended to a saisie-contrefaçon. The stricter independence requirements governing experts and other persons assisting the bailiff during that procedure remain in place because of its intrusive nature and the potential access it provides to confidential information and trade secrets.
The key development is therefore procedural but significant for IP enforcement: a purchaser’s connection with the rights holder no longer determines the validity of a purchase report. It is one factor in the court’s broader assessment of whether the report reliably proves the alleged acts of infringement.
