When to Bring Criminal Charges for IP Infringement in France (2026): Civil vs Criminal Remedies, Procedure & When to Hire a Lawyer

Criminal IP proceedings France offers rights-holders a formidable enforcement lever in 2026, but choosing it over civil litigation is a strategic decision that must be made deliberately, not by default. As coordinated civil–criminal enforcement strategies against online marketplaces mature and French and EU authorities sharpen their focus on organised counterfeiting networks, brand owners and in-house counsel face a sharper set of tactical choices than ever before. This guide takes a clear position on when to press charges, when to sue, and when to run both routes in parallel, with the procedural detail you need to act.

It maps the step-by-step mechanics of a plainte, the role of the procureur, the interim measures available, and the point at which experienced counsel becomes indispensable.

“Criminal proceedings can be a powerful enforcement tool in France, but only when aligned with evidence, commercial goals and timing. This guide explains the practical decision points and the procedural steps to move from doubt to action.”

Quick Decision Checklist: Should You Consider Criminal Proceedings?

Before you commit resources, run your situation through a simple traffic-light screen. Green means criminal proceedings are worth serious consideration; amber means proceed with caution and gather more evidence; red means civil enforcement is almost certainly the better first move. The following six-point checklist captures the factors that actually move the needle for rights-holders deciding whether to initiate criminal IP proceedings France.

• Scale of damage. Substantial commercial harm or brand dilution pushes toward criminal deterrence; isolated, low-value infringement rarely justifies it.
• Scale of counterfeiting. Industrial-quantity production, warehousing and distribution favour the criminal route and its investigative powers.
• Strength of evidence. Criminal cases require the offence to be proven to the standard applied by the criminal courts, so you need robust, well-preserved evidence to justify a complaint.
• Risk to consumers. Health and safety risks, counterfeit medicines, electrical goods, automotive parts, strongly favour criminal action.
• Repeat offenders. Persistent infringers who ignore civil warnings are prime candidates for criminal sanctions and confiscation.
• Cross-border online marketplaces. Complex supply chains and platform-based distribution benefit from police powers and customs coordination.

Red Flags That Favour Criminal Action

Some signals should tip you decisively toward pressing charges. Large-scale counterfeiting operations, where volumes suggest organised manufacture and distribution rather than opportunistic resale, are the clearest indicator. So is any public health or safety risk: counterfeit pharmaceuticals, cosmetics, toys, or safety-critical components create a public-interest dimension that engages prosecutorial priorities. Evidence of organised networks, offshore supply chains, money-laundering or repeat offending also weighs heavily toward criminal enforcement, because the police investigative powers and the deterrent effect of criminal sanctions are simply unavailable through the civil courts. Where you need to compel disclosure of documents, trace a supply chain across borders, or physically remove goods from circulation quickly through police seizure, criminal IP proceedings France becomes the sharper instrument.

Situations Where Civil Is Usually Better

Civil litigation is the stronger first choice when your priorities are commercial rather than punitive. If your main aim is a rapid market exit for the infringing product, an urgent injunction obtained through référé (summary emergency proceedings) will usually be faster and more predictable than waiting for a prosecutor to act. If recovering damages is the primary objective, the civil route gives you direct control over the claim and the award. Civil proceedings also offer greater confidentiality, which matters when public exposure of the dispute could itself damage your brand or reveal commercially sensitive information.

And where your evidence comfortably meets the civil standard but might fall short of the criminal threshold, civil enforcement lets you act without waiting to build a prosecution-grade file.

Civil vs Criminal Trademark Infringement: Side-by-Side Comparison

The table below sets out the two routes dimension by dimension so you can see, at a glance, which mechanism delivers the outcome you need. Read it alongside the practical implications that follow.

Key Practical Implications for Rights-Holders

The comparison reveals three implications that should shape your instructions to counsel. First, on enforceability: a civil injunction obtained through référé is fast and self-directed, you control the timing and the ask, whereas criminal enforcement depends on the prosecutor prioritising your case. If you cannot afford to wait on public policy, civil is the safer bet for immediate relief. Second, on publicity: a criminal trial creates a public record and press exposure, which is a powerful deterrent against organised counterfeiters but a genuine liability if you would rather resolve matters discreetly.

Third, on recoverable remedies: civil proceedings deliver damages and an account of profits directly, while criminal proceedings deliver punishment plus, through the partie civile mechanism, a route to civil damages tied to the criminal outcome. Rights-holders whose commercial priority is compensation should not assume the criminal route will deliver it as cleanly as a civil claim.

How Civil Claims and Criminal Proceedings Can Be Coordinated

The two routes are not mutually exclusive, and the most effective enforcement strategies in 2026 often deploy both. A common tactical sequence is to launch civil emergency measures first, a saisie-contrefaçon to secure evidence and an urgent référé injunction to stop sales, thereby preserving your market position and freezing the evidential picture. With evidence secured, you can then file a plainte where the scale, organised nature or consumer-safety dimension of the infringement justifies escalation. Alternatively, filing a plainte avec constitution de partie civile at the outset gives you access to criminal investigative powers while you continue to pursue civil relief in parallel.

The key is sequencing: use civil tools for speed and evidence preservation, and reserve the criminal route for deterrence, compelled disclosure and sanctions against networks that civil remedies alone cannot reach.

How Criminal IP Proceedings France Work: Step by Step

Understanding the procedural architecture lets you brief counsel efficiently and set realistic expectations. Criminal IP proceedings France follow a defined path from complaint to trial, with several decision points at which the case can accelerate, stall or be dropped entirely.

Filing a Plainte, Who Files, Content, and Evidence to Attach

The starting point is the plainte pour contrefaçon, the criminal complaint. A rights-holder who is the victim of infringement can file one. There are two forms, and the difference matters enormously. A plainte simple (simple complaint) informs the authorities of the offence and invites them to investigate; the prosecutor retains full discretion over whether to act. A plainte avec constitution de partie civile (complaint with civil-party application) does two things at once: it can trigger criminal proceedings and it constitutes the complainant as a civil party, giving them standing to claim civil damages and to participate actively in the investigation.

Note that, as a general rule under the Code de procédure pénale, a plainte avec constitution de partie civile before an investigating judge is admissible only after a prior plainte simple to the prosecutor or the police has gone unanswered or been dismissed (or where a set period has elapsed). The partie civile mechanism is a decisive lever for rights-holders, because it helps prevent a complaint from being quietly shelved and secures a seat at the table throughout. Whichever form you choose, attach your strongest evidence: registration certificates proving your rights, invoices and provenance documents, marketplace listings and screenshots, test-purchase records, and any expert reports. A well-documented complaint is far more likely to prompt swift prosecutorial action.

Role of the Procureur de la République and the Police

Once a complaint is filed, the procureur de la République, the public prosecutor, is a pivotal decision-maker. The prosecutor assesses whether the facts disclose an offence and whether there is sufficient evidence and public interest to proceed. Investigative work is carried out by the police or gendarmerie, and specifically by officiers de police judiciaire (OPJ), who hold the powers to search premises, seize goods, take statements and gather documents. For rights-holders, this is the core attraction of the criminal route: the state deploys investigative resources and compulsion that no private litigant can replicate. Where you have identified an organised network or a supply chain you cannot penetrate through civil disclosure, the prosecutor and the OPJ can compel what you cannot.

Investigation: Enquête Préliminaire vs Instruction

Criminal investigations take one of two forms. An enquête préliminaire (preliminary investigation) is conducted under the prosecutor’s direction and is the usual route for straightforward cases. Where the matter is complex, serious, or requires coercive measures over an extended period, the case may be referred to an investigating judge (juge d’instruction) for a formal instruction (judicial investigation). The instruction confers broader powers, including sustained surveillance, extensive searches and detention measures, but it also takes longer. A plainte avec constitution de partie civile can, subject to the admissibility conditions noted above, prompt the opening of an instruction, which is one reason rights-holders facing organised counterfeiting sometimes choose that route.

Understanding which track your case is on tells you a great deal about likely timing and the investigative depth available.

Decision Points: Classement Sans Suite, Summons, Detention and Penalties

At the close of the investigation the case reaches a fork: the prosecutor may issue a classement sans suite (dropping the case), summon the defendant to trial, or, in serious cases, seek pre-trial detention through the appropriate judicial authority. Trial can result in fines, imprisonment, confiscation of goods and profits, and, where you are a partie civile, an award of civil damages.

Interim Measures in Criminal Proceedings and How They Compare to Civil Measures

The ability to secure interim relief often determines the practical value of an enforcement action. Both routes offer powerful tools; the trick is knowing which to deploy and when.

Saisie Pénale: When and How It Is Ordered

Saisie pénale is criminal seizure, carried out within an investigation under prosecutorial or judicial authority. Its great advantage is immediacy and reach: investigators can seize infringing goods, production equipment and proceeds, removing counterfeit stock from the market in a single operation and preserving assets for eventual confiscation. Because it flows from the criminal investigation, it does not depend on a rights-holder posting security or persuading a civil judge, but it does depend on the prosecutor or investigating judge acting, which is why a well-evidenced complaint and active partie civile participation matter so much.

Saisie-Contrefaçon vs Saisie Pénale vs Référé: Practical Differences

These three instruments serve distinct purposes and rights-holders frequently confuse them:

• Saisie-contrefaçon. A civil, evidence-gathering measure obtained by court order, often ex parte, allowing a court-appointed bailiff (commissaire de justice) to enter premises and document or sample infringing goods. It is a central tool for building a civil case and can be executed rapidly and discreetly. Use it when your priority is preserving proof before the infringer can react.
• Saisie pénale. A criminal seizure carried out by investigators within an investigation. Use it when you need to remove goods from the market and secure assets for confiscation, and when the scale or organised nature of the infringement justifies engaging the criminal apparatus.
• Référé. Civil summary proceedings for urgent injunctive relief. Use it when your priority is stopping sales fast, a prohibitory order against continued marketing, rather than gathering evidence or punishing the infringer.

Customs and Border Seizures

French douanes and EU customs can detain suspected counterfeit goods at the border under Regulation (EU) No 608/2013, feeding seizures into a coordinated criminal or civil case. Rights-holders can file an application for action (AFA) with customs to facilitate detention of suspected infringing goods.

Practical Evidence Checklist Before Filing a Plainte or Civil Claim

Whichever route you choose, the quality of your evidence dictates your prospects, and in criminal IP proceedings France the standard is unforgiving. Assemble the following before you approach the authorities or issue a claim, and preserve a clear chain of custody throughout:

• Rights certificates. Trademark, patent, design or copyright evidence proving ownership and scope.
• Invoices and provenance documents. Records establishing the infringing supply chain and volumes.
• Marketplace records. Listings, seller identities, transaction data and platform correspondence.
• Photographs. High-quality images of the counterfeit goods, packaging and identifying marks.
• Test purchases. Documented purchases with receipts, preserving the item and its packaging intact.
• Expert reports. Technical comparisons distinguishing genuine from counterfeit products.

Never destroy or alter potential evidence, and keep a documented custody trail, gaps in provenance are exploited by defence counsel and can weaken an otherwise strong case.

Likely Penalties and Recoverable Remedies

The remedies available differ sharply between the two routes. On the criminal side, the Code de la propriété intellectuelle provides for substantial fines, terms of imprisonment, and confiscation of infringing goods, manufacturing equipment and criminal proceeds, sanctions that carry a genuine deterrent weight, particularly against organised networks and repeat offenders. Penalties are increased where the offence is committed by an organised gang or where the goods are dangerous to health or safety. Courts may also order the destruction of seized goods.

On the civil side, remedies focus on making the rights-holder whole: damages taking into account the negative economic consequences, moral prejudice and the profits made by the infringer, an account of profits, permanent injunctions, delivery-up and destruction of stock, and recovery of costs where the claim succeeds. Where a rights-holder proceeds as partie civile within criminal proceedings, civil damages can be awarded alongside the criminal penalties, folding both objectives into a single process. Exact penalty ranges are set out in the Code de la propriété intellectuelle and should be confirmed against the current statutory text before you rely on any figure.

Costs, Timing and Risk Allocation: Budgeting Your Enforcement Strategy

Cost and timing profiles diverge significantly between the routes, and honest budgeting prevents nasty surprises. Civil emergency measures, a référé injunction or a saisie-contrefaçon, are relatively fast and cost-predictable, though a full civil trial to judgment on damages can run considerably longer. You bear the fees, but a successful claim can recover part of your outlay. Criminal proceedings shift the investigative cost onto the state, which is a genuine advantage where resources are constrained, but the trade-off is unpredictability: an enquête préliminaire or instruction can take many months or longer, and its pace is outside your control. As a partie civile you can claim procedural costs and civil damages, but those recoveries are tied to the criminal outcome.

The practical rule: budget for speed and control on the civil side, and for patience and public resource on the criminal side.

When to Hire an IP Litigation Lawyer in France

Certain circumstances make specialist counsel not merely useful but essential. Instruct an IP litigator without delay when you face any of the following triggers:

• Complex or contested evidence. Where provenance, chain of custody or technical authentication will be challenged.
• Cross-border elements. Offshore suppliers, foreign platforms, or goods transiting through customs.
• Organised networks. Industrial-scale counterfeiting requiring criminal investigative powers.
• Coordinated civil–criminal strategy. Where sequencing saisie-contrefaçon, référé and a plainte demands tactical planning.
• Consumer-safety risk. Where public-interest harms elevate the stakes and the prosecutorial dimension.
• Urgent interim measures. Where you need ex parte relief before the infringer can react.

Experienced counsel adds value at every stage: drafting a well-supported plainte, liaising with the procureur and OPJ, participating in saisie pénale and confiscation, interfacing with the douanes on border seizures, and running parallel civil claims for damages and injunctions. The difference between a complaint that is shelved and one that becomes a prosecution often lies in how it is built and pursued. Note that in France, litigation before the courts is conducted by an avocat, while French and European patent attorneys (conseils en propriété industrielle / European Patent Attorneys) play a central role in prosecution and technical strategy.

Decision Framework and Practical Next Steps

Here is the clear recommendation this guide has been building toward. Do not hedge, match your route to your objective.

Choose criminal proceedings when:

• You face large-scale or organised counterfeiting, or goods that pose a consumer-safety risk, and you need deterrent sanctions such as fines, imprisonment or confiscation.
• Your evidence is strong enough to support a criminal investigation, serial invoices, cross-border supply-chain records, marketplace data, or a pattern of repeat offending.
• You need criminal investigative powers such as compelled disclosure and searches, or immediate seizure via saisie pénale.

Choose civil proceedings when:

• Your primary aim is rapid market removal, injunctions and damages recovery, especially against a local infringer with measurable business impact.
• Your evidence meets the civil standard but may not reach the criminal threshold.
• Confidentiality matters and public exposure through a criminal trial would itself damage your business.

Choose the hybrid approach when: you want the best of both. Start with civil emergency measures, référé and saisie-contrefaçon, to preserve evidence and market position, then escalate to criminal proceedings where evidence or public interest justifies it. Or file a plainte (and, where the conditions are met, a plainte avec constitution de partie civile) to retain access to criminal investigative powers while pursuing civil relief in parallel.

Your action plan: collect and preserve evidence, contact specialist counsel for an evidence review, and consider an emergency référé if immediate market removal is needed while you decide on escalation.

Conclusion

Criminal IP proceedings France is a powerful but selective enforcement tool, reserve it for large-scale, organised or consumer-endangering counterfeiting where deterrence, sanctions and police powers deliver what civil litigation cannot, and choose the civil route when speed, damages and confidentiality drive your commercial priorities. In 2026, with cross-border online enforcement and coordinated civil–criminal strategies increasingly central to brand protection, the strongest position is often a hybrid: preserve evidence and market share through civil measures, then escalate to criminal action where the facts justify it. The decisive factor at every stage is the quality of your evidence and the timing of your moves. Rights-holders and in-house counsel weighing their options should seek a specialist evidence review and enforcement plan before acting.

This article is general guidance and not legal advice. Enforcement decisions depend on the specific facts; obtain tailored advice from qualified counsel before acting.

Sources

1. Code de la propriété intellectuelle (Legifrance)
2. Code de procédure pénale (Legifrance)
3. Institut National de la Propriété Industrielle (INPI)
4. Regulation (EU) No 608/2013 (EUR-Lex)
5. European Union Intellectual Property Office (EUIPO)
6. Direction générale des douanes et droits indirects