Report

The report is a legal act by which a judicial officer carries out a certain number of observations on a given place (the need to obtain a prior order from a judge may be compulsory in particular within the framework of the request 145).

In the field of intellectual property, findings are very frequently used:

• Upstream, to provide certain proof of a creation to a judge in the event of a dispute. Thus, many companies deposit their collections in order to date their creations in a certain way;

• When an infringement is established, to demonstrate proof of such infringement.

The effect of the report is to give a certain date to the findings made.

The recourse to the intervention of a judicial officer (which can be requested by a natural person or a legal entity), is a solution making it possible to offer to the litigants the means to prove a certain number of objective facts in a given situation, and in particular

• Non-performance or improper performance of an agreement;
• The existence of an infringement of copyright, trademark or design;
• Facts constituting unfair competition, (for example the use of a competitor’s advertising identifiers to promote a similar product line, or the sale of identical products at a lower price, etc.).

In order to demonstrate acts of counterfeiting, several types of findings can be made in practice:

• The purchase report in a store;
• The statement of offer for sale on the Internet;
• The Internet purchase statement;
• The statement of receipt of a purchase made on the Internet ;
• The observation of posts on social networks.

Although in law, the probative force of the statements of facts is extremely strong, the judicial officer must respect a certain number of prerequisites.

For example, in the area of Internet findings, case law frequently points out that :

“… ] the probative value of a bailiff’s report on the Internet presupposes the respect of a protocol allowing the authentication of the observations made;

That the judicial officer must describe the computer equipment used, the operating system, the Internet browser, the architecture of the local network (absence of connection to a proxy server, DNS servers used, IP address, firewall) as well as the elements relating to the Internet access provider;

That he/she must, prior to connection, specify the screen definition setting, synchronize the date and clock of the computer and delete the temporary files stored on it, the caches, the browsing history and the cookies, and then set the temporary files and the history so that the browser checks, if necessary, that the most recent page version is displayed;

That he must finally describe, list and record the content of his findings and, at the end of his findings, proceed to capture the information on the target. ” (Cass. crim., January 8, 2019, n°18-80.748; Paris Court of Appeal, January 12, 2016, n°14-14.431).

Thus, if the guarantees necessary for the reliability of the bailiff’s report are not provided, it is subject to annulment (Paris Court of Appeal, January 25, 2022, n°20-04.957).

As such, for purchase reports, the judicial officer must have recourse to a third party purchaser and this third party cannot be the trainee of the applicant’s law firm according to the Court of Cassation (Cass. civ.^1ère, 25 Jan. 2017, n°15-25.210).

This position of the Court of Cassation has been slightly softened by the lower courts, but remains fully applicable.

In any case, once the rules have been respected, it is important to have statements of facts when taking legal action for infringement.

Often, these findings will be the prerequisite to a seizure procedure.

The very strong growth in the number of counterfeit products, whether at the point of sale or on the Internet, means that we must be vigilant and reactive in order to deal effectively with this scourge.

Given the complexity of the matter (establishing the risk of confusion, proof of infringement, evaluation of moral and commercial prejudice, etc.), it is recommended to be accompanied by a specialized lawyer.

Point on the probative force of the reports

The judicial officer being a ministerial officer, he confers to the acts he establishes an authentic character.

The authentic instrument has the same probative and enforceable force as a court decision.

In this case, the law establishes a simple presumption of authenticity of the act, which can be overturned by the adversary by showing that it is a forgery.

In terms of evidence, the authentic instrument is the writing with the greatest probative force.

Update on the AFNOR NF Z 67-147 standard

For many years, judges have had to cancel a certain number of bailiffs’ reports drawn up on the Internet on the grounds that, for lack of technical details, it was not possible to ensure that the pages observed were actually active on the day of the report or that they were not contaminated by a virus.

In order to mitigate these uncertainties, the AFNOR standardization commission “Authentic act of a bailiff” has therefore elaborated a procedure for bailiff’s statements on the Internet.

Technical rules have been established to guarantee the reliability of the information mentioned.

The report must mention the IP address of the connection, the deactivation of the connection by proxy server as well as the deletion of the temporary files stored on the computer used to carry out the report operations.

As this standard has not been enshrined by the legislator, it is in principle not mandatory.

However, case law has held that “such an act can only be carried out by a judicial officer on the condition that it complies with the NF Z67-147 standard of September 2010, of which articles 4.2.1 and 4.2.2 detail a certain number of works on 2 whole pages.” (Court of Appeal of Aix en Provence, September 15, 2016, No. 13-22.133).

It is thus recommended to make sure that the diligences provided for by the AFNOR standard are respected to ensure that the bailiff’s report drawn up on the Internet will not be excluded from the debates by the judges.

The Bouchara firm assists you in particular in :

• Protection and defense of your intellectual property rights(trademarks, designs, etc.);
• Monitoring your intellectual property rights;
• The use of a bailiff for the establishment of statements of facts;
• Conducting litigation procedures in the field of intellectual property rights (unfair competition actions, infringement actions, seizure procedures, etc.).