Practical tips and tricks when faced with a dawn raid

Gathering all proof needed to establish IP infringement can be challenging for rightsholders. To address this concern, EU Directive 2004/48 on the enforcement of intellectual property rights introduced the obligation for Member States to establish a dawn raid procedure. In Belgium, this was included under articles 1369bis/1 to 1369bis/10 of the Belgian Judicial Code (beslag inzake namaak/saisie-contrefaçon). But these proceedings are very intrusive for the alleged infringer.

In this blogpost, we’ll briefly explain the essence of these proceedings prior to giving you some practical tips and tricks to help reduce the risks, impact and collateral damage when faced with such proceedings.

When are the down raid proceedings granted?

IP rightsholders can unilaterally ask the President of the competent court to have one or more experts describe all objects, elements, documents or methods of operation that demonstrate the suspected infringement and its origin, destination of infringing products and extent. As this requires a unilateral request, the rightsholder has to prove that its IP right is prima facie valid and has been infringed (or that infringement is imminent).

If the rightsholder, in addition, wants the precautionary seizure of the allegedly infringing goods and/or means used, they also have to prove the measures are well-founded taking into account the balance of the interests involved, including the public interest, the facts of the case and, where appropriate, the evidence the applicant is relying on.

Given the unilateral character of these requests, the measures come as a surprise to most targets. So it’s important to always be prepared with an appropriate procedure. We briefly explain the course of seizure and provide some outlines and recommendations that should be part of an internal procedure.

How do the dawn raid proceedings work in practice?

A bailiff visits the company with an expert to establish the facts. They may be accompanied by the police, a locksmith, and possibly even the applicant (and/or their legal counsel if allowed by the President). It’s important to check whether each person present has the necessary authorisation under the President’s order.

The bailiff will serve the President’s order and describe the course of events in an official record of findings (proces-verbaal van vaststelling/procès-verbal de constatation). The expert might be authorised to take all measures to perform their mission. This might include making copies, and taking photos and video recordings. The defendant might also be ordered to give the expert access to its computer systems. When carrying out their assignment and preparing the subsequent expert report, the expert must take into account the legitimate interests of the alleged infringer, eg when dealing with trade secrets and other confidential information.

Practical tips and tricks

Below we provide some tips and tricks that should be part of any playbook to deal with a possible dawn raid.

Preparatory steps:

• Appoint an in-house lawyer or other employee as a lead person and make sure they understand their role is to protect the confidentiality of documents and safeguard the company's reputation as much as possible.
• Give instructions to reception and security staff regarding the steps to follow and people to contact in case of a seizure.
• Every employee must contact the internal legal or compliance team as soon as they think a seizure may be imminent.

Steps to take during the dawn raid:

• Contact your DLA Piper lawyer.
• Be collaborative, professional and calm.
• Verify and record the identity and role of all people present. If the claimant and/or their legal counsel is present, verify whether they have the required authorisation of the President.
• Make sure you get a copy of the President’s order and assess the scope of the order and the measures ordered.
• Record everything that happens in writing or, where relevant, audio-visually.
• Set up a secure area for the visitors with access to a photocopier.
• Never leave visitors alone.
• Make a copy of every document copied or kept by visitors. Note the nature of the document, date and author.
• If possible, let a member of the IT team monitor visitors conducting an electronic search (eg note keywords that are entered into your IT system) and make sure they contact the lead person before granting access to servers or databases to which employees normally do not have access.
• Make sure any policy on destruction of documents or information is temporarily suspended.
• Try to avoid giving visitors access to confidential information and/or correspondence (eg correspondence with counsel) and draw the expert's attention to the confidential nature of the information they have access to. Also point out their duty of confidentiality according to which they should avoid disclosing the information to the counterparty.
• Try to avoid having visitors ask questions beyond the scope of their assignment, do not answer questions that clearly go beyond this assignment, and do not provide more information than that specifically requested.

Follow-up steps:

• Organise a debriefing with the visitors to read through, and rectify if needed, the bailiff’s record and to avoid misunderstandings regarding any possible follow-up steps per party and applicable deadlines.
• Organise an internal debriefing to assess the visit and assign tasks to take care of the follow-up steps.
• Ensure that any seals applied are not broken.

Do not hesitate to reach out to your usual DLA Piper contact to come up with a procedure and set up an internal playbook for your employees or for support during a dawn raid.