Geography Reference
In-Depth Information
possible to retrace the concealed links in the infringement chain, rather than to
determine the extent of the prejudice suffered by the victim of the infringe-
ment.'
28
7.34
The second paragraph of Art 7(1) of the Enforcement Directive provides that
where measures to preserve evidence are adopted without the other party
having been heard, the parties affected shall be given notice, without delay after
the execution of the measures at the latest. A review, including a right to be
heard, shall take place upon request of the parties affected with a view to
deciding, within a reasonable period after the notification of the measures,
whether the measures shall be modified, revoked or confirmed.
7.35
Article 7(1) of the Enforcement Directive replicates Art 50.2 of TRIPS, which
provides for applications for provisional measures to be made on the application
of a single party. This procedure is available, 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. In cases of copyright piracy or
trade mark counterfeiting, the defendant, who will often be involved in serious
criminality, will not usually remain available to answer interrogatories or to
discover documents. Indeed, on detection, relevant evidence will immediately
be removed or destroyed. To deal with this situation the Court of Appeal of
England and Wales in
Anton Piller v Manufacturing Processes
29
approved a
procedure whereby on an
ex parte
application in camera, an order would be
granted to an applicant that the defendant, advised by his legal representative,
grant access to the applicant to inspect the defendant's premises to seize, copy or
photograph material which may be used as evidence of the alleged infringe-
ment. The defendant may be obliged to deliver up infringing goods and tooling
and may also be obliged to provide information about sources of supply and
about the destination of infringing products.
7.36
A similar procedure, the
saisie-contrefaçon
, has been developed by the French
courts. Because of the exceptional nature of these orders, in their impact upon
an individual's civil rights, after the demonstration that there is a very strong
prima facie case of infringement, the courts have insisted upon proof that there
is a strong possibility that evidence in the possession of a defendant is likely to
be destroyed before an application
inter partes
can be made. Additionally, the
British courts have insisted upon the safeguards of the attendance upon a
search, conducted in business hours, by both parties' legal representatives,
sometimes with a neutral supervising solicitor who has experience in the
28
Ibid, at 533.
29
[1976] RPC 719.
