Second request for seizure regarding counterfeiting: when are new evidence valid?

In intellectual property law , seizure order regarding counterfeiting is an important weapon to secure evidence of infringement. But what happens if your first request is denied? Can you just run new tests and file a second request? The Court of Cassation, in a ruling of Jan. 16, 2026 sharpened the rules: a second request based on new “evidence” is admissible only if that evidence was not reasonably accessible during the first proceeding.

The facts and procedural precedents

This case revolves around a dispute between ASSIA EAL (a Spanish company and patent holder) and Belgian telecom provider Proximus. At the heart of the dispute is an alleged infringement of a patent for the management of telecommunication lines (DSL).

The procedural history is complex but instructive:

1. First attempt (2018): The original patent holder filed a unilateral petition for seizure regarding counterfeiting. This was dismissed, first by the president of the court and later by the Brussels Court of Appeal in 2019, for lack of sufficient evidence of infringement.
2. New tests (2019): After this rejection, the patent holder had new technical tests conducted on DSL lines to still gather evidence.
3. Second attempt (2020): With these new reports in hand, a second petition was filed. The Brussels Court of Appeal initially allowed it, ruling that the new tests constituted “new circumstances”.
4. Third-party opposition: Proximus filed third-party opposition. The Court of Appeal of Liege (as referral court) eventually annulled the seizure authorization. The reasoning was that the “new” tests could already have been performed at the time of the initial request and were therefore reasonably accessible.

The decision of the Court of Cassation.

ASSIA EAL went to the Court of Cassation, arguing that the European Enforcement Directive (Directive 2004/48/EC) guarantees the right to gather evidence, and that national procedural rules may not limit it by requiring that evidence was “not reasonably accessible” during earlier proceedings.

However, the Court of Cassation did not follow this reasoning and dismissed the appeal on Jan. 16, 2026. The Court confirmed the interpretation of the Court of Appeal of Liege.

The key consideration is as follows: When an applicant, after a denied request, files a new request based on new evidence, these only constitute a valid “change of circumstances” within the meaning of Article 1032 of the Judicial Code if this evidence was not reasonably accessible to the applicant during the examination of his initial request.

Legal analysis and interpretation

This ruling confirms a stricter interpretation of the concept of “changed circumstances” in the context of unilateral petitions in IP cases.

Autonomy of member states

The Court emphasizes that Article 7 of the European Enforcement Directive requires Member States to provide for a procedure for the preservation of evidence, but that this does not remove the procedural autonomy of the Member States. National courts are free to impose conditions on the rehearing of a request to prevent abuse of procedural law and ‘forum shopping.

The “reasonably accessible” criterion

The crucial point is the patentee's duty of care. It is not enough that the evidence is materially new (e.g., a report dated after the first judgement). It must be evidence that could not previously be obtained.

In this case, the judge found that the equipment used for the new tests (modems, Raspberry Pi) and methodology were simply available on the market in 2018. There was no technical or factual impediment to conducting these tests even before the first request. Withholding potential tests only to deploy them after a rejection is thereby sanctioned.

What this specifically means

This ruling has significant strategic implications for both intellectual property rights holders and parties who must defend themselves.

• For the patent or trademark holder: The message is clear: “You only get one shot.” Make sure your case file is complete and watertight at the time of the first request for a seizure regarding counterfeiting. Invest in thorough preliminary research and technical analysis before going to court. You cannot count on being able to fill in “gaps” in your file later with tests you could have actually done earlier.
• For the defendant: Are you facing a seizure regarding counterfeiting after a previous attempt failed? Immediately analyze the date and nature of the “new” evidence. If it can be shown that with normal efforts the opposing party could have obtained this information even during the initial proceedings, the seizure may be unlawful and annulment (and damages) may be sought.

FAQ: Frequently asked questions

Can I file a second request for seizure if the first was denied?
Yes, but only if there are changed circumstances. This means that you must present new evidence of infringement that, at the time of the initial request, you could not reasonably possess or obtain.

What is meant by “not reasonably accessible”?
This is a question of fact. The court looks at the nature of the infringement, the technology available, and the capabilities of the applicant. If you had the means and ability to gather the evidence earlier (for example, by testing public market products), it is considered “accessible” and does not count as a new fact.

Does this rule violate European law?
No. The Court of Cassation held that the European directive providing for evidence protection does not affect national rules on procedural economy and the prohibition of abuse of process. In fact, according to the Court, there was no reason to put a preliminary question to the European Court of Justice on this issue.

Conclusion

The ruling of Jan. 16, 2026, is a warning to every IP practitioner: a seizure procedure regarding counterfeiting requires thorough preparation. “Fixing” a rejected request with evidence you could have actually already had will not be tolerated by the Belgian courts. Care in the first stage is essential to effectively enforce your intellectual property rights.