Rule 196

Order on the Application for preserving evidence

Rules of Procedure

Part 2 – Evidence

Chapter 4 – Order to preserve evidence (saisie) and order for inspection

Order to preserve evidence (saisie)

Rule 196 – Order on the Application for preserving evidence
  1. The Court may order, in particular, the following:
    1. preserving evidence by detailed description, with or without the taking of samples;
    2. physical seizure of allegedly infringing goods;
    3. physical seizure of the materials and implements used in the production and/or distribution of these goods and any related document;
    4. the preservation and disclosure of digital media and data and the disclosure of any passwords necessary to access them.
      For the protection of confidential information the Court may order that any of the above be disclosed only to certain named persons and subject to appropriate terms of non-disclosure.
  2. An order to preserve evidence shall specify that, unless otherwise ordered by the Court, the outcome of the measures to preserve evidence may only be used in the proceedings on the merits of the case.
  3. The order to preserve evidence shall be enforceable immediately, unless the Court decides otherwise. The Court may set conditions to the enforceability of the order, specifying in particular:
    1. who may represent the applicant when the measures to preserve evidence are being carried out and under what conditions;
    2. any security which shall be provided by the applicant.
      If necessary, the Court may set penalties applicable to the applicant if these conditions are not observed.
  4. The order to preserve evidence shall specify a person who shall carry out the measures referred to in paragraph 1 and present a written Report on the measures to preserve evidence, all in accordance with the national law of the place where the measures are executed, to the Court within a time period to be specified.
  5. The person referred to in paragraph 4 shall be a professional person or expert, who guarantees expertise, independence and impartiality. Where appropriate and allowed under applicable national law, the person may be a bailiff or assisted by a bailiff. In no circumstances may an employee or director of the applicant be present at the execution of the measures.
  6. The Court may order the applicant to provide adequate security for the legal costs and other expenses and compensation for any injury incurred or likely to be incurred by the defendant which the applicant may be liable to bear. The Court shall do so where the order to preserve evidence was made without the defendant having been heard, unless there are special circumstances not to do so. The Court shall decide whether it is appropriate to order the security by deposit or bank guarantee.
  7. The order to preserve evidence shall indicate that an appeal may be lodged in accordance with Article 73 of the Agreement and Rule 220.1.

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