Act No. 173 / 2007 Coll.
Act amending Act No. 191 / 1999 Coll., on measures concerning the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended
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173
THE LAW
of 7 June 2007
amending Act No 191 / 1999 Coll., on measures relating to the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended
Parliament has decided on this law of the Czech Republic:
Act No. 191 / 1999 Coll., on measures concerning the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended by Act No. 121 / 2000 Coll., Act No. 260 / 2002 Coll. and Act No. 255 / 2004 Coll., are amended as follows:
1. Paragraph 1 (1), including footnotes 1 and 1a, reads as follows:
"(1) This law regulates, following the directly applicable rules of the European Communities (1) (hereinafter referred to as the" Rules of the European Communities'), the conditions under which action by the customs office is taken against persons who own, hold, store or sell goods which infringe intellectual property rights in the customs territory of the European Communities and in the protection of the internal market (1a).
1) Council Regulation (EC) No 1383 / 2003 of 22 July 2003 concerning the taking of measures by customs against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed those rights. Commission Regulation (EC) No 1891 / 2004 of 21 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1383 / 2003 on customs action against goods suspected of infringing intellectual property rights and on measures to be taken against goods found to have infringed those rights.
(1a) Act No. 634 / 1992 Coll., on Consumer Protection, as amended. '
2. in Paragraph 1 (2) (a), the word "ensure" shall be replaced by the word "detain" and the words "whose production or modification has been infringed" shall be replaced by the words "infringed";
3. In Article 1 (2), the words "which infringe intellectual property rights," shall be added at the end of point (b).
4. In Paragraph 1 (2) (c), the words "the production or modification of which has been infringed 'are replaced by the words" which are infringed'.
5. Article 2 shall be deleted;
6. In the heading of Part Two, the word "intervention 'is replaced by" measure'.
7. In Section 4, the word "intervention 'is replaced by" measure'.
8. In the first sentence of Article 4 (1), the words "to intellectual property 'shall be inserted after the words" Owner of the right (2)'; the words "on the prescribed form 'shall be replaced by the words" intervention'.
Footnote 3:
"(3) Annex II-B to Commission Regulation (EC) No 1891 / 2004 of 31 October 2004 laying down detailed rules for the application of Council Regulation (EC) No 1383 / 2003 on customs intervention against goods suspected of infringing certain intellectual property rights and on measures to be taken against goods found to have infringed those rights."
9. In the second sentence of Article 4 (1), "intervention 'is replaced by" measure'.
10. Paragraph 4 (2) is deleted.
Paragraph 3 shall become paragraph 2.
11. in Article 4 (2), the first sentence, including footnote 4, shall be deleted; in the second sentence, the words "established in accordance with the first sentence" shall be replaced by the words "final decision"; the words "the production or modification of which has been infringed" shall be replaced by the words "in respect of which the costs are infringed" and the last sentence shall be deleted;
12. In Section 4, the following paragraph 3 is added, including footnote 4:
"(3) In the cases referred to in the Regulation of the European Communities (4) or in paragraph 2, the Customs Directorate shall notify:
(a) the right-holder of the decision setting out the amount to be paid and the account number to be paid;
(b) the importer, exporter, owner or holder of the goods of the decision determining the amount to be paid in accordance with paragraph 2 and the account number to which that amount is to be paid.
4) Article 6 of Council Regulation (EC) No 1383 / 2003. '
13. In the heading of Part Three, the words "the production or modification of which has been infringed 'are replaced by the words" those which are infringed'.
14. Paragraph 9, including footnotes 6, 7 and 8, reads as follows:
(1) When implementing customs supervision (6), the customs office of destination shall detain goods suspected of infringing intellectual property rights to the person for whom the goods have been found, in accordance with the provisions of the European Community Regulation (7), irrespective of the rights of third parties.
(2) Where goods suspected of infringing intellectual property rights have been transferred to a customs office by another authority under special legislation (8), the customs office referred to in paragraph 1 shall proceed mutatis mutandis.
(3) The person who has been notified of the decision to detain goods suspected of infringing intellectual property rights shall be obliged to issue such goods to the customs office. The issue of such goods shall be subject to an official record signed by two customs officers and by the person who has issued the goods suspected of infringing intellectual property rights, indicating the quantity and description of the goods. The customs office shall forward a duplicate of the official record to the person who issued the goods.
(4) The customs office may retain the goods in custody suspected of infringing intellectual property rights and require the person who has been detained by decision not to use, dispose of or otherwise dispose of the goods. The legal acts by which this prohibition has been infringed are invalid.
(5) If the time limit for the detention of the goods has elapsed, or if it is not possible for the goods to be detained to impose a forfeiture penalty or a safeguard measure to prevent goods suspected of infringing intellectual property rights in an administrative offence proceedings or to decide to destroy them in accordance with Paragraph 14, they shall return to the person who was detained.
6) Sections 48 and 50 of Act No. 13 / 1993 Coll., Customs Act, as amended.
7) Articles 4 and 9 of Council Regulation (EC) No 1383 / 2003.
8) For example Article 23 (8) of Act No. 634 / 1992 Coll., as amended by Act No. 145 / 2000 Coll. '
15. In the heading of Part Four, the word "intervention 'is replaced by" measure'.
16.
(1) The customs office to which the decision to approve the application has been served by the customs office to which the goods have been detained shall notify the holder of the right at his request of the name and, where applicable, the name, surname and address of the place of residence, the address of the place of residence abroad of the consignee, the consignor, the declarant, the owner or the holder of the goods, if any, if any, if the name or business name and / or location of the organisation, if the legal person concerned, as well as the origin and place of dispatch of goods suspected of infringing the intellectual property rights (9).
(2) At the written request of the customs office, the holder of the right shall submit to the customs office within 15 days of the date of receipt of the notice a written statement that the goods seized are counterfeit or pirated, accompanied by a document stating that the particulars contained therein are accurate, complete, valid and true.
9) Articles 9 (3), 10 and 11 and 13 (1) of Council Regulation (EC) No 1383 / 2003. '
17. in Paragraph 13 (1), the word "secured" shall be replaced by the word "detained."
18. in Paragraph 13 (2), the second sentence is deleted;
19. The following heading is inserted above the title of Section 14: "Treatment of goods infringing intellectual property rights'.
20. The heading under the heading § 14 is deleted.
21. Paragraph 14 (1), including footnotes 16 and 17, reads as follows:
"(1) Where goods suspected of infringing the rights of the right-holder have been detained, the customs office shall, at the request of the right-holder, decide to destroy the goods without further verifying that intellectual property rights have been infringed, provided that:
(a) the proprietor of the right shall inform the customs office within 10 working days, or within 3 working days, if the perishable goods are concerned, from the date of the notification that the goods have been detained, that the goods are in breach of his intellectual property rights, and shall transmit to the customs office the agreement of the declarant17), the owner or the holder of the goods, with the destruction of the goods; with the agreement of the customs office, the declarant, the owner or the holder of the goods may forward this consent directly to the customs office. Where circumstances so require, that period may be extended by a further 10 working days. The customs office shall invite the declarant, the owner or the holder of the goods to comment within a reasonable time on the application by the holder of the right to destroy the goods. If the declarant, the owner or the holder of the goods does not object within the prescribed time limit to the application of the holder of the right to destroy the goods, consent shall be deemed to have been given,
(b) the customs office shall, before destruction, take samples which it shall retain in such a way that they may serve as evidence admissible in any judicial proceedings.
16) Article 11 of Council Regulation (EC) No 1383 / 2003.
17) Article 4 (18) of Council Regulation (EEC) No 2913 / 92 of 12 October 1992 establishing the Community Customs Code. "
22. In Paragraph 14, the following paragraph 2 is inserted after paragraph 1:
"(2) Destruction shall be carried out at the expense of the importer, on export or re-export at the expense of the exporter; where the importer is not known and the exporter is exported or re-exported, destruction shall be carried out at the expense of the right-holder. The customs office shall ensure destruction under the supervision of 3 customs officers. An official record of destruction shall be drawn up indicating the quantity and description of the goods. The official record shall be signed by all three customs officers. '
Paragraphs 2 to 10 shall become paragraphs 3 to 11.
23. Paragraph 14 (3), including footnotes 18 and 19, reads:
"(3) The customs office shall ensure the destruction of goods infringing intellectual property rights (18),
(a) the importer's costs and, when exported and re-exported, the exporter's costs;
1. If the court or customs office decides by force,
2. if abandoned to the State,
(b) at the expense of the owner of the right, unless the customs office is known to the importer and at the time of export and re-export of the exporter of the goods.
Importer and re-export of the exporter and right-holder may ensure destruction (19) of goods which are infringing intellectual property rights under the supervision of the customs office.
18) Article 17 of Council Regulation (EC) No 1383 / 2003.
19) Article 182 of Council Regulation (EEC) No 2913 / 92. '
24. In the first sentence of Paragraph 14 (4), the words "declarant, owner or holder of goods' are replaced by the words" importer, at the exporter's expense or re-export at the time of export '; in the second sentence, the words "paragraph 4 (a)' are replaced by the words" paragraph 5 (a) (1) 'and the words "paragraph 4 (c)' are replaced by the words" paragraph 5 (b) ';
25. Paragraph 14 (5) reads:
"(5) The customs office shall ensure the costs of the perpetrator of the administrative offence:
(a) with the consent of the right-holder
1. the removal of trade marks from forgeries forfeited or seized under the final judgment of the court;
2. making other adjustments to counterfeit or seized counterfeits, provided that this does not change the nature of the goods, in such a way that they can be handled in a way other than their sale; or
(b) destruction of goods forfeited or seized which infringe intellectual property rights, trade marks removed under (a), waste and residues resulting from other adjustments under (a). ";
26. in Article 14 (6), the words "If there is no known person who has infringed the law in any of the ways set out in paragraphs 15 and 23, or has failed to intervene," shall be replaced by the words "if there is no known offender of an administrative offence or a person who is not responsible for committing an administrative offence," the words "whose manufacture or modification has been infringed" shall be replaced by the words "which are infringed," and the words "where applicable, in proceedings," shall be deleted.
27. in Paragraph 14, the following paragraph 7 is inserted after paragraph 6:
"(7) In the cases referred to in paragraphs 2, 3, 4, 5 or 6, the customs office shall, by decision, determine the amount corresponding to the cost of destruction and the account number for which that amount is to be paid."
Paragraphs 7 to 11 shall be renumbered paragraphs 8 to 12.
28. in Paragraph 14, paragraphs 8 to 12, including footnote 22, 23, 24, 25, 26, 27 and 28, are deleted;
29. Paragraph 14a, including footnotes 22 to 27, reads:
(1) The Customs Directorate shall decide, according to the details of the customs office, on the basis of a final decision to forfeit or prevent counterfeiting and provided that the holder of the right has given his consent to the use of the counterfeits modified in accordance with Article 14 (5) for humanitarian purposes in writing or electronically, which are legally forfeited or seized, and which, under the conditions laid down by this law and by special legislation, may be transferred free of charge to the recipient organisation referred to in paragraph 2, for humanitarian purposes. For these purposes, forgeries which are disabled and not safe cannot be transferred. Counterfeits shall be transferred free of charge according to the purpose and the use or urgency of the applicants' needs according to the order of the requests received.
(2) The beneficiary organisations may:
(a) the organisational units of the State or of the local authority and of the legal persons established or established by the State or the local authority or established by law, provided that they are established or established for the purpose of providing social services or operating in the health or education sector (23); or
(b) other legal persons (24) if they fulfil the following conditions:
1. have not been set up for business purposes;
2. their activity shall only be carried out in the areas referred to in point (a);
3. provide humanitarian aid continuously for at least 2 years; and
4. attest to the confirmation by the competent authority not earlier than 3 months that they do not have arrears on taxes, outstanding arrears on social security contributions and contributions to state employment policy, including periodic penalty payments, outstanding arrears on public health insurance premiums, including penal25); For the purposes of this Act, the outstanding arrears on social security contributions and the contribution to national employment policy shall also mean the arrears on premiums, including periodic penalty payments, paid in instalments under the special legal decree (26).
(3) The receiving organisation shall:
(a) take measures to prevent the diversion and re-entry into trade of counterfeits;
(b) in accordance with the decision of the Customs Directorate referred to in paragraph 1 and at its expense, ensure the removal of trade marks or other adjustments as provided for in Article 14 (5) (a) and the destruction of the trade marks, waste and residues removed after those adjustments pursuant to Article 14 (5) (b);
(c) ensure that all modified counterfeits are marked "humanities" in such a way that the inscription is not directly visible and thus the dignity of the persons who use them is not reduced;
(d) to register and keep records of the receipt of counterfeits and the manner in which they have been handled for a period of 3 years from the time of the free transfer; This is without prejudice to the provisions of specific legislation governing the retention of specified documents (27).
(4) On the free transfer of counterfeits for humanitarian purposes, the Directorate-General shall conclude customs duties with the receiving organisation referred to in paragraph 2 or with its founder, if it is an organisational component of the local authority, a written contract which shall always contain the type and quantity of counterfeit goods transferred free of charge and the specific purpose for which the receiving organisation shall use the counterfeits.
(5) The customs office is entitled to check the performance of obligations contracted by the accepting organisation with the receiving organisation. The Customs Directorate shall inform the outcome of the inspection.
(6) Humanitarian purposes referred to in paragraphs 1 and 4 shall mean the provision of essential needs of a population that is in a difficult living situation or has been affected by an exceptional occurrence where the use of exceptional material resources is justified.
22) Act No. 219 / 2000 Coll., on the property of the Czech Republic and its appearance in legal relations, as amended.
23) For example, Act No. 114 / 1988 Coll., on the competence of the authorities of the Czech Republic in social security, as amended, Act No. 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws, as amended, Act No. 170 / 2002 Coll., on war veterans, as amended by Act No. 190 / 2005 Coll.
24) For example, Act No. 248 / 1995 Coll., on Public Beneficial Companies and amending and supplementing certain laws, as amended, Act No. 227 / 1997 Coll., on Foundations and Foundation Funds and on the amendment and addition of certain related laws (Act on Foundations and Foundations), as amended, Act No. 83 / 1990 Coll., on the Association of Citizens, as amended, Act No. 3 / 2002 Coll., on Freedom of Religious Religious Religion and the Status of Religious and Religious Societies and on the Amendment of Certain Laws (Act on Churches and Religious Societies), as amended, Act No. 325 / 1999 Coll., on Asylum and on the Amendment to Act No. 283 / 1991 Coll., on the Police of the Czech Republic, as amended, (Act on Asylum), as amended.
25) Act No. 337 / 1992 Coll., on the Administration of Taxes and Fees, as amended. Act No. 589 / 1992 Coll., on Social Security and Contribution to State Employment Policy, as amended. Act No. 592 / 1992 Coll., on Insurance for General Health Insurance, as amended.
26) § 20a of Act No. 589 / 1992 Coll., as amended.
27) For example, Act No. 563 / 1991 Coll., on Accounting, as amended, Act No. 337 / 1992 Coll., as amended. '
30. The heading "ADMINISTRATIVE DEPLICES 'is inserted under the heading of Part Five.
(31) footnotes 32 to 34, including the references thereto, are deleted.
32. in Article 15 (1) (a), the words "the production or modification of which has been infringed" shall be replaced by the words "which are infringed."
33. in Article 15 (1) (b), the words "the manufacture or modification of which has infringed intellectual property rights" shall be replaced by the words "infringing intellectual property rights," and the word "customs" shall be deleted;
34. in Article 15 (1), point (c), including footnotes 35 and 36, shall be deleted;
Points (d) and (e) shall be renumbered (c) and (d).
35. in Article 15 (1) (c), the words "which infringe intellectual property rights" and the words "whose manufacture or modification has infringed intellectual property rights" shall be inserted after the words "goods";
36. in Article 15 (1) (d):
"(d) as a person who has been left by the customs office of departure of the goods in respect of which it is suspected of infringing intellectual property rights, in breach of Article 9 (4), uses, extraneous or otherwise disposing of such goods,"
37. Paragraph 15 (2) and (3) are deleted and paragraph 1 is deleted.
38. The heading under Paragraph 16 is deleted.
39. in the first sentence of Article 16 (1), "§ 15 (1) (a) and (b)" is replaced by "§ 15 (a) and (b)" and in the second sentence, "§ 15 (1) (e)" is replaced by "§ 15 (d)."
40. in § 16 (2) of the introductory part of the provision, the words "§ 15 (1) (c) and (d)" are replaced by "§ 15 (c)."
41. in Article 16 (3), the words "the production or modification of which has been infringed" shall be replaced by the words "which are infringed" and the words "under special legislation37)" shall be replaced by the words "under European Communities37)."
footnote 37 is replaced by the following:
"(37) Article 9 of Commission Regulation (EC) No 1917 / 2000 of 7 September 2000 laying down certain detailed rules for the application of Council Regulation (EC) No 1172 / 95 as regards external trade statistics, as amended."
42. Paragraph 16 (4) and (5) are deleted.
Article 43 (19) and (20) shall be deleted.
44. The heading of Title II reads: "ADMINISTRATIVE DEPARTMENTS OF LEGAL PERSONS AND ENTERPRISE PHYSICAL PERSONS."
45. The heading under Article 23 shall be deleted.
46. In Article 23 (1), in the introductory part of the provision, the words "and the natural person who is an entrepreneur, in his business' are replaced by the words" or the natural person who is an undertaking '.
47. in Article 23 (1) (a) and (b), the words "the production or treatment of which has been infringed" shall be replaced by the words "the infringement."
48. in Article 23 (1), point (c) is deleted;
Points (d) and (e) shall be renumbered (c) and (d).
49. in Article 23 (1) (c), the words "which infringe intellectual property rights" and the words "whose manufacture or modification has infringed intellectual property rights" and the word "or" shall be deleted;
50. in Article 23 (1) (d):
"(d) as a person who has been left by the customs office of departure of the goods in respect of which it is suspected of infringing intellectual property rights, in breach of Article 9 (4), uses, extraneous or otherwise disposing of such goods, or"
51. in Article 23 (1), the following point (e) is added:
"(e) as a receiving organisation, after a free transfer of counterfeits, it shall not fulfil any of the obligations under Paragraph 14a (3)."
52. Paragraph 23 (2) and (3) are deleted and paragraph 1 is deleted.
53.
(1) For an administrative offence pursuant to § 23 (a), (b) and (e), a fine of up to CZK 100,000 shall be imposed. A fine of up to 1 000 000 CZK shall be imposed for the administrative offence referred to in § 23 (d).
(2) A fine shall be imposed for the administrative offence referred to in Article 23 (1) (c):
(a) up to 1 000 000 CZK,
(b) up to 5 000 000 CZK, if the perpetrator has violated his obligations to a greater extent; or
(c) up to 20 000 000 CZK, if the perpetrator has violated his obligations to a significant extent.
(3) Infringement of obligations to a greater extent is the case where the customs value of goods infringing intellectual property rights exceeds CZK 1 000 000, and where goods are exported or re-exported, exceeds the statistical value applied under the European Community Regulation (37)) an amount of CZK 1 000 000. An infringement of the obligation to a significant extent is the case where the customs value of goods infringing intellectual property rights exceeds CZK 5 000 000, and where goods are exported or re-exported, exceeds the statistical value applied under the European Communities37) an amount of CZK 5 000 000. "
Article 54 (27) and (28) shall be deleted.
55. Paragraph 28a, including the title and footnote 37a, reads as follows:
Acceptance of goods infringing intellectual property rights
(1) The confiscation of goods infringing intellectual property rights shall be imposed where such goods belong to the perpetrator of an administrative offence; and
(a) has been used or intended to commit an administrative offence; or
(b) has been obtained by administrative delicacy or has been acquired for goods which infringe intellectual property rights by administrative delicacy obtained.
(2) The State becomes the owner of forfeited goods infringing intellectual property rights.
37a) § 316 of the Customs Act. '
56. The following Sections 28b and 28c are inserted after Section 28a, including the title and footnote 37b:
Preventing goods which infringe intellectual property rights
(1) Where the forfeiture of goods infringing intellectual property rights referred to in Article 28a (1) (a) or (b) has not been imposed, it shall be decided that such goods are to be taken up if:
(a) belong to a person who cannot be prosecuted for an administrative offence; or
(b) it does not belong to the perpetrator of the administrative offence or it does not wholly belong to him
and where the safety of persons or property or other general interest so requires.
(2) The owner of the seized goods which infringe intellectual property rights becomes a State.
(1) The legal person shall not be liable for an administrative offence if he proves that he has made every effort to prevent an infringement.
(2) In determining the amount of the fine to a legal person, account shall be taken of the seriousness of the administrative offence, in particular the manner in which it was committed and the consequences thereof and the circumstances in which it was committed.
(3) Liability for an administrative offence shall cease if the administrative authority has not initiated proceedings against it within 1 year of the date on which it became aware of it, but no later than 6 years from the date on which it was committed.
(4) Administrative offences under this Act shall be dealt with at first instance by the customs office in whose territory the goods infringing intellectual property rights have been detained.
(5) The liability for the conduct of a business of 37b) a natural person or directly related thereto is subject to the provisions of § 14b to 23.
(6) The fine imposed on an administrative offence shall be payable within 30 days of the date on which the decision by which it was imposed took effect.
(7) The fines shall be collected and enforced by the authority which imposed them. The revenue from fines is the revenue from the budget from which the activity of the authority which imposed the fine is covered.
37b) § 2 (2) of the Commercial Code. '
57. Paragraph 31 (1) and (2) read:
"(1) The costs referred to in Article 4 (3) shall be payable within 30 days of the date of receipt of the decision of the Customs Directorate on their amount to the right-holder.
(2) The costs referred to in Article 14 (7) shall be payable within 30 days of the date of receipt of the decision of the Customs Directorate to the persons mentioned therein. "
58. in Article 31 (3) (a), the words "the manufacture or treatment of goods has infringed intellectual property rights" shall be replaced by the words "counterfeit or pirated goods."
59.In Article 31a (1), the words' offences and 'shall be deleted.
60.In Paragraph 31b (1):
"(1) The income from the sale of forfeited or seized goods shall be the income of the State budget. ';
(61) Paragraph 31c, including footnote 41, is deleted.
62. Article 32 and 33, including the title and footnotes 41 to 43, read:
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Regulation Information
| Citation | Act No. 173 / 2007 Coll., amending Act No. 191 / 1999 Coll., on measures relating to the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as amended |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 12.07.2007 |
|---|---|
| Effective from | 12.07.2007 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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