Holders of an intellectual property title may, acting in pursuance of an order from the president of the civil court within whose jurisdiction the action is to be taken, engage bailiffs or public or ministerial officials, including customs officials, if necessary with the aid of an expert, to make a detailed inventory and description, with or without seizure, of allegedly infringing objects.
The order must be made on request and on presentation of the intellectual property title in question. The title must be in effect at the time the order is requested.
Where seizure is involved, the said order may require the complainant to furnish security, which he is required to provide before seizure is effected. The security must be sufficient but not such as would discourage recourse to the procedure.
Security is always required of foreigners seeking seizure. The person in possession of the objects described or seized is given a copy of the order and, where appropriate, of the document attesting the deposit of security, on pain of invalidity and damages against the bailiff or the public or ministerial official or the customs official, as the case may be.
Should the complainant fail to take action under either civil or criminal law within a period of ten working days from the seizure or inventory, the said seizure becomes void as of right, without prejudice to any damages that may be claimed.
The customs service may, at its own initiative, suspend the clearance of goods suspected to be counterfeit. In this case, the customs service is not freed of responsibility unless it acted or intended to act in good faith.
The draft law on the protection of intellectual property rights at borders provides that the holder of an intellectual property right may present to the customs service a request asking it to suspend the clearance through customs of goods suspected to be counterfeit, whether such goods are being imported or exported.
Under the Bangui Agreement, at the conclusion of proceedings the court may, even in the case of acquittal, order the confiscation or destruction of infringing objects and, where necessary, that of implements or tools specially intended for their manufacture, against the infringer, the receiver, the introducer or the retailer.
The court may also order the infringing objects to be handed over to the holder of the right. A similar measure is provided for in Article 24 of the draft law on the protection of intellectual property rights at borders.
In the event of conviction, the infringer of an intellectual property right may be required by the judge to pay the legal costs incurred by the holder of the right. Articles 464 to 468 of the Code of Criminal Procedure and Article 149 of the Code of Civil Procedure deal with the issue of the payment of legal costs.
The Bangui Agreement recognizes the judge’s power to order the seizure of recognized infringing goods or objects (infringement seizure), or their confiscation or destruction, together with any implements or tools specifically intended for their manufacture.
For purposes of illustration, attention is drawn to Articles 64 and 67 of Annex 1 on patents, and Articles 43 and 48 of Annex 3 on trademarks and service marks.
This measure is supported by the draft laws on the protection of intellectual property rights at borders and on the protection of intellectual works as provided for in paragraphs 1.2.a and 1.2.b of the Report.
The Bangui Agreement, in the Articles cited above in regard to infringement seizure, provides that if the procedure is abused, the respondent may initiate an action seeking damages from the complainant.
The defendant is also entitled to take such action in the event of failure by the complainant to take a substantive action within ten days from the seizure or inventory