The purchase report, a key piece of evidence in intellectual property disputes, has long been undermined by the strict requirement for absolute independence of the third-party buyer. In its ruling on May 12, 2025 (n° 22-20.739), the French Court of Cassation made a significant shift, introducing a more pragmatic approach focused on transparency and procedural fairness. From now on, the mere lack of independence will no longer be enough to invalidate a purchase report.

Legal framework for the purchase report

1.1 A crucial evidence tool

The purchase report is an essential tool in intellectual property litigation. It allows rights holders to demonstrate the illicit sale of a product, typically online, by hiring a bailiff to make a purchase and draft an official report of the transaction.

1.2 A rigorous past jurisprudence

Since a decision on January 25, 2017 (Civ. 1st, n° 15-25.210), the Court of Cassation held that the mere involvement of a third party linked to the plaintiff’s law firm (such as an intern or associate) was enough to invalidate the report, citing the right to a fair trial under Article 6 of the European Convention on Human Rights. This position generated significant criticism among specialists, as it unnecessarily complicated the process of proving intellectual property violations.

 

Facts of the case and procedural history

2.1 A disputed purchase report

In 2016, Rimowa GmbH, the holder of the “Limbo” trademark, identified counterfeit products being sold online under the “Bill Tornade” brand. To gather evidence, Rimowa commissioned a bailiff to carry out a purchase report. The operation took place on May 4, 2016, under the supervision of the bailiff, with the purchase made by an intern from Rimowa’s law firm, whose role was explicitly mentioned in the report.

The Paris Commercial Court ruled the report invalid, arguing that the involvement of the third-party buyer undermined the neutrality of the evidence. However, the Paris Court of Appeal overturned this decision, holding that the third-party buyer’s imperfect independence was not sufficient to invalidate the report, given that it was performed transparently and under the bailiff’s control. Consequently, the report was deemed valid, and the companies HP Design and Intersod were found guilty of counterfeiting.

2.2 A Cassation appeal by the defendants

The condemned companies appealed to the Court of Cassation, arguing a violation of the principle of fairness of evidence, the right to a fair trial, and the requirement for the third-party buyer’s independence.

 

The contribution of the Court of cassation’s ruling of May 12, 2025

3.1 Lack of independence is no longer sufficient

In a landmark ruling, the mixed chamber of the Court of Cassation reversed the previous approach. The Court ruled that the mere fact that the third-party buyer was an intern from the plaintiff’s law firm was not enough to invalidate the report. The Court rejected a blanket invalidation based solely on the relationship between the buyer and the plaintiff. Instead, the Court now emphasizes an in concreto examination of the circumstances surrounding the report.

3.2 Three criteria for validating the purchase report

The Court established a framework for assessing the validity of the purchase report based on three key criteria:

  • Transparency: The relationship between the buyer and the party is clearly disclosed in the report.
  • Effective control by the bailiff: The operation is conducted under proper supervision, ensuring no manipulation.
  • Absence of any deception or bad faith: There are no elements of concealment or dishonesty.

3.3 A clear distinction from seizure of counterfeit goods

The purchase report is neither intrusive nor coercive. It does not face the same stringent requirements as the seizure of counterfeit goods, which involves direct intervention at the defendant’s premises. The Court reiterated that Directive 2004/48/EC requires proportional, effective, and adversarially respectful methods of evidence collection, without excessive rigidity.

Benefits for rights holders

This ruling brings several advantages for rights holders:

  • It restores flexibility in procedural matters.
  • It reduces the risk of automatic invalidation, which was often raised in defense arguments.
  • It strengthens the probative value of online purchase reports, particularly in cases involving counterfeiting and unfair competition.

Conclusion: towards a more practical and fair evaluation

The Court of Cassation’s ruling represents a paradigm shift. The lack of independence of the third-party buyer is no longer an automatic cause for invalidating a purchase report. This decision strikes a balance between fairness in evidence and the effectiveness of proof, in line with Directive 2004/48/EC.
In summary, this jurisprudential change restores a more pragmatic interpretation of evidence law in intellectual property cases.

 

Dreyfus & Associés is ready to assist its clients in managing these complexities by providing tailored advice and comprehensive operational support for the full protection of intellectual property.

Dreyfus & Associés is partnered with a global network of intellectual property lawyers.

Nathalie Dreyfus and the entire team at Dreyfus & Associés.

 

FAQ

1. Can an intern act as the third-party buyer in a purchase report?

Yes, an intern can act as the third-party buyer, provided that their role is clearly stated in the report and they operate under the supervision of a bailiff.

2. Must the link with the law firm be disclosed?

Yes, the connection to the law firm must be disclosed. If not, the report may be seen as lacking transparency and could be rejected.

3. How can the probative value of a purchase report be maximized?

To maximize its probative value, it is essential to ensure full transparency, proper supervision by the bailiff, and the absence of any deception or bad faith.