Dismissal of the request for interim measures against a third party who did not participate in the alleged infringement

Facts

I. S.p.A., an Italian company producing and marketing agricultural chemical products, learned that a quantity of 9600 kilos of its pesticide X. was located at the port of Jebel Ali in the United Arab Emirates, where it had been inspected by an agent of C. SA, a surveillance company based in Geneva. Suspecting counterfeiting, I. S.p.A. requested information from C. SA, but the latter refused. I. S.p.A. then filed a request for interim measures with the Geneva Court of Justice, concluding in particular that C. SA should be required to hand over all documents relating to this shipment. The Court of Justice granted the request. C. SA filed a public law appeal against this decision.

Considerations

The Federal Tribunal upheld the appeal and annulled the order of the Court of Justice. It considered that, although the ordered measures (handing over documents to a bailiff) could in themselves be admissible under the title of preservation of evidence according to Art. 28c para. 2 no. 2 CC and Art. 59 para. 4 TmPA, they could not be imposed on a third…