Geography Reference
In-Depth Information
infringements of copyright or related rights that have no direct or indirect
motivation of financial gain, as well as (ii) willful infringements for purposes of
commercial advantage or financial gain'.
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The confidentiality concern mirrors Art 42 of TRIPS, which requires that
making available to right holders of civil judicial enforcement procedures, 'a
means' shall be provided 'to identify and protect confidential information,
unless this would be contrary to existing constitutional requirements'.
7.31
ii. Measures for preserving evidence
Seizure order
Article 7(1) of the Enforcement Directive provides that Member States shall
ensure that, even before the commencement of proceedings on the merits of the
case, the competent judicial authorities may, on application by a party who has
presented reasonably available evidence to support his/her claims that his/her
IPR has been infringed or is about to be infringed, order prompt and effective
provisional measures to preserve relevant evidence in respect of the alleged
infringement, subject to the protection of confidential information. Such
measures may include the detailed description, with or without the taking of
samples, or the physical seizure of the infringing goods,' and, in appropriate
cases, 'the materials and implements used in the production and/or distribution
of these goods and the documents relating thereto'. Those measures shall be
taken, if necessary without the other party having been heard, in particular
where any delay is likely to cause irreparable harm to the right holder or where
there is a demonstrable risk of evidence being destroyed.
7.32
A question raised by Cottier and Veron (2011 at 531-2) is whether 'documents
relating thereto' means 'documents relating to the evidence of the reality of the
infringement or the disclosure of all the commercial information by which it
would be possible to determine the distribution network and the extent of the
prejudice suffered by the victim of the infringement'. They mention that the
French case law is divided on this point However, the Paris Court of Appeal in a
decision of 16 June 2010 considered that the wording was not intended solely to
remove the obstacle of confidentiality but, on the contrary, to allow the seizure
of any document with evidential value, without making any distinction between
measures to establish the actual physical reality of the infringement and to
establish the total infringing sales ('masse contrefaisante'). 'The Court consid-
ered that the primary purpose of the right of information was to make it
7.33
27
US-Australia FTA, Art 26; US-Peru FTA, Art 26; US-Singapore FTA, Art 21.
