7         FRANCE

The organization of the Courts, and the principles of civil procedure, are still fully subject to national legislation. France is a civil law country; as a result, evidence is largely based on documentation and not on witness testimonies.

7.1         MAIN PRINCIPLES

All French laws are grouped into Codes : procedural rules are to be found in the Code of civil procedure; general principles of civil law are laid down in the Civil code while IP legislations are in the Code of intellectual property.

French attorneys can represent their clients in all French courts, except before the French Supreme Court (Cour de Cassation), to which only a handfull of lawyers residing in Paris are admitted.

All attorneys are members of a regional Bar Association. When they defend a client before a court, which is outside of the scope of their Bar Association, for instance if an attorney from Paris, member of the Bar of Paris, defends a client in Lyon or Lille, he must then use “a local correspondant”, member of these Bars, even though he will be going to Lyon and Lille to plead the case on behalf of his client.

7.2         IMPORTANT MILESTONES

1. In IP cases, the plaintiff often requests through an ex-parte application the right to seize what he considers to be infringing products, often on the premises or in the warehouses of the defendant. Within one month following this seizure, the plaintiff must bring the matter before a court, otherwise the seizure will be considered as void and its effects will be cancelled.
2. Otherwise, all civil cases start by a claim delivered by the plaintiff to the defendant through a bailiff. A copy of this claim so delivered is then registered at the offices (greffe) of the Court which is competent to hear the case on the merits.
3. If the matter is within the competence of the District court, then the attorney of the defendant has 2 weeks togo on the court record on behalf of the defendant, and 2 more months when the defendant is not located in France.
4. The case is handled by a judge who “administers the case” (juge de la mise en Etat). He will ensure that both parties exchange the documents they refer to in their respective briefs (pleadings). The defendant has usually 2 months to respond to the claim, and the plaintiff will have also around 2 months to respond to the 1st brief of the defendant, who will then have 2 months to respond to this last brief. In most cases, separately from the initial claim the plaintiff produces another brief, where the defendant produces a total of 2 briefs. But for complex cases they can be authorized to produce as many briefs as necessary. Once the parties have exchanged all their arguments the case is transferred to a different judge for the public hearing and oral arguments (the trial).

The pleadings at trial are usually quite short (in average a maximum of 45 minutes for each parties).  They take place after a short presentation of the case by one of the judges who hear the case. At the District court of Paris the judgments are rendered in writing approximately 6 weeks after the pleading date.

Summary of the usual timeline:

• (Seizure ? If so, a claim must be brought within 30 days);
• Claim delivered by the Plaintiff to the Defendant;
• Defendant must register his attorney (within 2 weeks or 2 months for a foreign defendant);
• A judge is appointed to administer the case : he verifies if the documents on which the claim is based have been given to the attorney of the defendant;
• The attorney of the defendant has approximately 2 months to produce a 1st brief in defence and in response to the initial claim;
• The attorney of the plaintiff has approximately 2 months to produce a 1st brief in response to the 1st reply (defence) of the defendant;
• The attorney of the defendant has approximately 2 months to produce a 2nd brief in defence and in response to the reply of the plaintiff;
• Once the parties have exchanged all their arguments the case is “closed” and a date for the trial is set;
• Trial;
• One or two months after the trial a judgment is rendered in writing.

7.3         FIRST INSTANCE PROCEDURE

The District Court of Paris has been, for a few years, the sole and exclusive jurisdiction to hear patent cases, as well as cases involving Community Designs and Community Trademarks.

Regarding all other cases involving author’s rights, French designs and French trademarks they are of the  exclusive competence of 10 district courts (including Paris).

On contract matters, including controversies over licensing agreements raised between two companies, these remain under the jurisdiction of commercial courts.

In the district courts, all the judges are professional judges, who have studied law and who have also gone to a “judge school”, whereas in the commercial courts the judges are elected businessmen, who may or not have a law degree.

All the IP/IT matters which are brought before the District Court of Paris, are handled by the 3rd Chamber, which comprises 4 sections. Each section comprises a presiding judge and two other magistrates, thus a total of 3 judges. These judges are not specialized in IP/IT, but they become specialists in this field by their daily practice in this 3rd Chamber, where they stay an average of 3 to 6 years.

Each section handles patent, trademark, design and copyright cases. None of the sections is more specialized in one of these fields than another. None of the judges have a technical training or degree, as is often the case in other countries.

It takes approximately 18 months from the claim for a case to be judged by one of the sections of the 3rd Chamber of the Court of Paris on the merits.

7.4         JUDGMENTS AND FURTHER APPEALS

Within one month after their official notification, all judgments rendered by a District Court of Paris, can be appealed before a Court of Appeal. In Paris, all the judgments of 1st instance rendered by the 3rd Chamber of the District Court in IP/IT matters are rewieved on appeal by the 1st and 2nd Chambers of the 5thPôle of the Court of Appeal of Paris.

Each of these two chambers, comprises a president and two other magistrates, among which, very often one or more former judges of the 3rd Chamber of the District Court.

Statistically only, approximately 25% of the judgments rendered on 1st Instance are reversed by the Court of Appeal.

7.5         REVISION (SUPREME COURT)

Within 2 months after their official notification, judgments of the Court of Appeal can be subject to the review of the French Supreme Court (Court de Cassation), but only on points of law and not on factual issues.

It takes around 2 years for a case to be reviewed by the Supreme court. Approximately 10% of the civil judgments are reversed, against 4% of the criminal cases. Once reversed the cases are brought back to be heard and judged again by another Court of Appeal.

7.6         PRELIMINARY RULING QUESTION BEFORE THE EUROPEAN COURT OF JUSTICE

French judges are very reluctant to ask preliminary ruling questions to

the European Court of Justice. For instance, as of May 15th, 2014, the 3rd Chamber of the District court of Paris has only asked one preliminary question to the European Court of Justice, in the landmark trademark cases of « SadasVertBaudet v/LTJ Diffusion » also know as « Arthur v/Arthur and Felicie » (C-291/00, March 20, 2003).

The French Supreme Court asks for preliminary ruling questions only when it is literally forced to do so.

7.7         COSTS AND FEES

The losing party is, in principle, always ordered to pay the attorney’s fees and costs of the other party, the so-called sums awarded by application of article 700 of the Civil procedural code (Cpc).

The amounts awarded by application of this article 700 Cpc depend on various factors, and they are often higher in patent cases than in trademark or copyright cases. But in the past years their average amount has increased, around 20.000 € for a trademark, design or copyright case, to an average of 50.000 € in patent cases.

7.8         PRELIMINARY INJUNCTION PROCEEDINGS

In all IP fields, one finds injunctive procedures, which permits a party, depending on the urgency, to obtain within hours or within a few weeks cease and desists orders, and even sometimes, provisonnal damages.

7.9         CRIMINAL PROCEEDINGS

An increasing number of IP cases are subject, not to civil, but to criminal proceedings, initiated usually by the Customs authorities.

The main issue, and difficulty for the defendant, is that in criminal proceedings the cases are heard by the criminal court which has jurisdiction over the place where the seizure took place.

For instance for goods seized in the harbor of Le Havre, the cases will be within the competence of the public prosecutor and of the criminal court of Le Havre, even though they are not specialized in IP/IT. One must note that in France a percentage of the fines awarded to the

customs authorities is shared with the customs agents who have seized the goods. Thus, they are “encouraged” to seize all the goods they consider to be infringing.