Welcome reversal by the French Supreme Court on the requirement for independence of third-party purchasers assisting a bailiff
Cour de Cassation, Chambre Mixte, May 12, 2025, No. 22-20.739
Procedural aspects are often central to intellectual property disputes.
In an important ruling of May 12, 2025, the French Supreme Court made a long-awaited reversal of case law on the delicate issue of the validity of purchase reports drafted by a bailiff in the context of infringement actions.
Since a Judgment, the First Civil Chamber of the French Supreme Court dated January 25, 2017 (Cass. Civ. 1, January 25, 2017, No. 15-25.210), it was required, under sanction of nullity of the report, that the third party purchasing the alleged infringing product be independent of the applicant. This third party could not, therefore, be an intern or an employee of the applicant’s law firm, which considerably complicated the use of this means of evidence and called into question established practices in this area.
This strict interpretation has now been overturned.
Indeed, the French Supreme Court considered that the absence of guarantees regarding the independence of the third-party purchaser towards the claimant is not sufficient, in itself, to invalidate the evidentiary purchase report drawn up by a bailiff for the purpose of proving acts of infringement. In such cases, it is up to the judge to assess, in the light of all the facts of the case, whether this lack of independence actually affects the probative value of the report.
This reversal of former case law, awaited by practitioners, answers to numerous criticisms, both from doctrine and case law. In several Judgments, the Paris Court of Appeal had expressed its reluctance to apply the 2017 solution, emphasizing that the status of the third-party purchaser, as trainee lawyer of the claimant, did not affect the objectivity of the bailiff’s findings, in the absence of any proven stratagem or unfair maneuver during the investigation.
With this change of position, the French Supreme Court has overturned its position and strict interpretation of such purchase report, actually assimilated to a disguised infringement seizure. It thus clarifies the distinction between an evidentiary purchase report, where the bailiff merely observes the facts externally in a place open to the public, and an infringement seizure, which involves the intrusive intervention of a third party in the premises of the alleged infringer or of a third party. The solution seems close to the former case law of the Paris Court of Appeal, which rejected formal challenges in the absence of allegations of stratagem or unfair maneuvers.
In the context of an evidentiary purchase report, the role of the third-party purchaser is limited and supervised by the bailiff, which justifies the absence of a neutrality requirement.
This decision by the French Supreme Court is also in line with Article 3 of Directive 2004/48/EC of the European Parliament and of the Council of April 29, 2004, on the enforcement of intellectual property rights, which requires that the means of obtaining and preserving evidence be effective, proportionate, and not unnecessarily burdensome.
Beyond the specific issue of validity of evidentiary purchase reports, this decision is part of a broader effort by the French Supreme Court to clarify the rules applicable to practitioners in matters of evidence, in order to enhance legal certainty and facilitate access to evidence for rights owners. It could be related to the evolution of practices before the new Unified Patent Court, which takes a much more permissive approach to the admissibility of evidence in European patent litigation.