Evidence of Trademark Infringement in France

Why evidence comes first in France

Two features of French law make evidence the center of gravity of any infringement matter.

First, there is no US-style discovery. No document requests, no interrogatories, no depositions. You cannot file first and build the record later out of the defendant’s files. With narrow exceptions, the record the court sees is the record the trademark owner assembled on its own initiative, before and during the proceedings.

Second, French law compensates only the harm the trademark owner actually suffered and managed to prove. There are no statutory damages to fall back on and no punitive multipliers. If the owner cannot prove its harm, it will recover no damages — and without proof of the infringing acts themselves, it will not even obtain an injunction against use of the sign.

So for a US team, the sequencing is the reverse of the domestic reflex: in France, the proof package is largely built before the complaint, not after it. That is also why evidence work should usually precede even a cease-and-desist letter — the letter is more credible, and nothing is lost if the matter later goes to court.

What evidence carries weight in a French court?

In trademark infringement matters, proof is free: any type of evidence is admissible. But for the courts, not all evidence carries the same weight, and the gap is wide.

Self-made evidence — a screenshot taken by the client, a printout, a saved web page — is admissible but easy to challenge and often the subject of intense debate before the judge. The general rule of thumb: evidence must be clear and easily interpretable by the court. A judge should be able to see the infringement without expert glasses on.

That is why French practice has developed a hierarchy of instruments, described below, with the bailiff report and the saisie-contrefaçon at the top.

The bailiff report (constat d’huissier)

The preferred evidentiary tool, particularly for online infringement, is the constat d’huissier — a findings report drawn up by a French bailiff (now formally titled commissaire de justice), a public legal officer whose factual observations carry strong weight before French courts.

For online matters, validity is technical: the Cour de cassation — France’s highest civil court — has laid down rules the bailiff must follow for an internet report to hold up. The report must comply with specific technical protocols, and it must also make it possible to identify with certainty the entities responsible for the acts observed — the operator behind the website or listing, not just the page itself. A report that skips these steps invites exactly the evidentiary debate you were paying to avoid.

For US counsel, the closest functional analogy is a notarized, forensically documented observation — but performed by a court officer whose reports enjoy a standing that no party-generated affidavit matches. When a client first reports an infringement in France, ordering a proper constat is typically the first concrete step: it freezes the facts at a date certain, before the other side receives any warning and cleans up.

What is a saisie-contrefaçon (infringement seizure)?

The owner of a registered trademark has access to a procedure with no direct US equivalent: the saisie-contrefaçon, a special judicially authorized seizure procedure through which the rights holder obtains proof of the infringement itself. It is one of the concrete privileges that come with registration — French law reserves it to holders of registered rights, which is one more reason registering in France and at EU level matters before trouble starts.

In a system without discovery, the saisie-contrefaçon is the mechanism that lets a plaintiff reach evidence located at the alleged infringer’s premises — the kind of material a US litigator would expect to obtain in discovery, secured here at the very outset and under court control. It is generally authorized on an ex parte petition and executed by a commissaire de justice (judicial officer), who may either draw up a detailed description of the suspected infringing goods or services — with or without taking samples — or carry out an actual seizure of those goods and any related documents (invoices, records, and the like). The trade-off is the deadline that follows: the seizing party must sue on the merits within 20 working days, or 31 calendar days if that is longer, from the seizure, failing which the whole seizure is annulled at the seized party’s request (Article L716-4-7 of the Intellectual Property Code, transposing Article 7 of EU Directive 2004/48).

Deciding between a discreet bailiff report and a saisie-contrefaçon — or sequencing one after the other — is a strategic call that depends on the risk of evidence disappearing, the strength of the file, and the endgame: settlement leverage or full litigation.

How to prove online trademark infringement

Proof of trademark infringement on the internet is a specific question of its own. The infringing content is volatile, hosted anywhere, and often operated through layers of intermediaries. Two requirements dominate:

• Technical compliance. The bailiff’s internet report must respect the technical rules developed by French case law; an observation made like an ordinary browsing session can be challenged.
• Attribution. The evidence must identify, with certainty, the entities responsible for the acts observed — who operates the site, who sells the product, who registered the domain. Establishing the infringement without establishing the infringer wins nothing.

Evidence of online infringement can be made by any means, but these proofs are often the subject of significant debate before the judge — which is precisely why the work should be done to a litigation standard from day one, even if the file is currently headed for an amicable settlement. A settlement negotiated on the strength of a court-proof file is a different negotiation.

Customs measures against counterfeits

Border detention by French and EU customs can be a further source of both enforcement and evidence against counterfeit imports. The mechanism is the application for action (AFA) under Regulation (EU) No 608/2013: a rights holder files a request with customs — national, or Union-wide to cover several member states — valid for up to a year and renewable. When customs detain suspected goods, they notify the holder, who then has a short window — 10 working days, or 3 for perishable goods, extendable once — to confirm the infringement and elect how to proceed. Where the holder and the declarant agree, the goods can be destroyed under a simplified procedure without any court ruling; if destruction is contested, the holder must start infringement proceedings within that same short deadline, failing which the goods are released. Customs detention therefore dovetails with the court route: it can both stop a shipment and surface evidence — quantities, sources, importers — that feeds an infringement action.

Practical checklist for US counsel

When a French or EU infringement surfaces:

1. Do not tip off the target. Preserve the element of surprise until the evidence is secured.
2. Avoid relying on in-house screenshots as the primary record; capture what you can for internal purposes, but treat it as provisional.
3. Instruct French counsel early to commission a compliant bailiff report and to assess whether a saisie-contrefaçon is warranted.
4. Think damages from the start. Because recovery is limited to proven harm, evidence of the scale of the infringement — volumes, prices, duration — matters as much as evidence of the act.
5. Watch the clock. Evidence gathering feeds directly into limitation and strategy questions covered in our infringement overview.

A trademark watch shortens the time between the start of an infringement and the moment you can prove it — often the cheapest evidence decision a rights holder makes.

Need French evidence secured before the other side knows you are looking? Contact us.