Protection of trade secret during a counterfeit seizure
[15/07/2024]
The 2023 Annual Report of the French Supreme Court (i.e. Cour de Cassation), published on July 3, 2024 comments on a judgement (Com.,1er février 2023, pourvoi n.21-22.225) ruling that, if an exhibitcovered by trade secret is seized during a counterfeit seizure, such an exhibit should not to be placed under seal but under provisional sequestration.
In the counterfeit seizure order, it was originally planned to protect trade secrets by placing these exhibits under seal, which is prima facie the most protective measure for the seized party, while the law provides for provisional sequestration.
The Annual Report notes that the Supreme Court rules for the first time on the protection of trade secret and establishes the principle that provisional sequestration is exclusive for the protection of trade secret, and that no other measure can be taken.
In the present case, the seized party not only failed to have the counterfeit seizure order withdrawn, but the trade secret exhibits were unsealed and made accessible to the seizing party.
The wording of counterfeit seizure orders will henceforth have to provide for provisional sequestration of trade secret exhibits and sealing of other confidential exhibits.
This will probably give rise to passionate discussions on the definition of a trade secret exhibit according to the criteria of Art. L151-1 of the French Commercial Code.
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