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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
execution of these orders. Refusal to comply with an
Anton Piller
order will be a
contempt of court. On the other hand, the use of the order for abusive purposes
may result in the grant of substantial compensation to a defendant.
2.112
112 In the
Anton Piller
case itself the Court of Appeal predicted that such
orders would be extremely rare,
51
however with the burgeoning of the large-
scale copyright piracy and trade mark counterfeiting which precipitated the
adoption of trade-related intellectual property rights as a matter for GATT, the
use of this procedure has become increasingly common. Infringement of GIs
rights has not yet attracted the use of
Anton Piller
orders but with the increase,
in particular, of wine label counterfeiting, this may be a remedy for the future.
The
Anton Piller
order is adopted in the scheme which is provided in Art 50 of
the TRIPS Agreement for the making of 'provisional measures' by the judicial
authorities. Article 50.1 provides that the judicial authorities shall have the
authority 'to order prompt and effective provisional measures: … (b) to preserve
relevant evidence in regard to the alleged infringement'.
2.113
As with the
Anton Piller
order, Art 50.2 permits the judicial authorities 'to adopt
provisional measures
inaudita altera parte
where appropriate, … where there is a
demonstrable risk of evidence being destroyed'. Also the judicial authorities
may have authority pursuant to Art 50.3 'to require the applicant to provide any
reasonably available evidence in order to satisfy them with a sufficient degree of
certainty that the applicant is the right holder' and that an infringement has
occurred or is imminent. Additionally, Art 50.5 provides that to assist the
authority which will enforce the provisional measure, 'the applicant may be
required to supply other information necessary for the identification of the
goods concerned'.
2.114
As measures to prevent abuse and to protect a defendant's rights, Art 50.3
provides for an applicant to be ordered 'to provide a security or equivalent
assurance' and Art 50.4 provides that where provisional measures have been
adopted inaudita altera parte, notice must be provided to the affected parties
'without delay after the execution of the measures at the latest'. Paragraph 4 also
provides for 'a review, including a right to be heard' upon the request of the
2.115
51
Ibid, at 725, per Ormrod, LJ.
