On 30 April 2014, the Court of Appeal of Antwerp (the “Court of Appeal”) confirmed the invalidation of the ex parte order granting an anti-counterfeiting seizure (beslag inzake namaak/saisie en matière de contrefaçon) to a firm called NPC. An anti-counterfeiting seizure is a procedure specifically intended to obtain evidence of the infringement of intellectual property rights.
Given the fact that the procedure to obtain an anti-counterfeiting seizure is based on an ex parte application before the President of the Commercial Court (the “President of the Court”), the party against whom it is sought does not have the opportunity to be heard. Accordingly, the President of the Court can only decide on the basis of the evidence submitted to him unilaterally. Therefore, the President of the Court must rely on the loyalty of the applicant and he must be confident that he will be fully and properly informed.
The Court of Appeal asserted that the above applies with even more force to ex parte applications to obtain an anti-counterfeiting seizure as one party is allowed to secure comprehensive access to highly confidential information of another business.
In the case at hand, NPC, the ex parte applicant, had failed to provide crucial information that raised serious doubts as to the rights which it claimed. Eight years before the proceedings in question had been initiated, another procedure to obtain an anti-counterfeiting seizure with more or less the same parties and the same software had taken place and had resulted in the appointment of an expert. The report drafted by that expert was then called into question before the President of the Court of First Instance of Antwerp (the "President of the CFI").
The President of the CFI held in 2006 that elements had been brought to his attention that cast doubt on the applicant's claims and on the expert report. The President of the CFI ordered that a bilateral expert's report be obtained which should offer guidance on whether the software of the applicant was sufficiently original to qualify for copyright protection and on the identity of the author of the software.
Once it had obtained that information, the Court of Appeal held on 30 April 2014 that the applicant had failed to prove prima facie that the software was sufficiently original to qualify for copyright protection and that it was the author of the software. As a consequence, the Court of Appeal confirmed the invalidation of the ex parte order granting an anti-counterfeiting seizure, relieved the appointed court experts from their task and ordered NPC and the experts to return all information and evidence which they had collected.
