Act No. 191 / 1999 Coll.
Law on measures relating to the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws
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Law
Effective from 01.12.1999
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191
THE LAW
of 29 July 1999
on measures relating to the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws
Parliament has decided on this law of the Czech Republic:
INTRODUCTORY PROVISIONS
(1) This Act provides for:
(a) following directly applicable provisions of the European Union in the field of customs procedure for the protection of intellectual property rights (1) (hereinafter referred to as the "European Union Regulation"), the implementation of customs measures if goods are suspected of infringing intellectual property rights or if such goods are found to be infringing intellectual property rights;
(b) the exercise of supervision under the Consumer Protection Act.
(2) That law also lays down the conditions under which the customs office is entitled
(a) to detain goods in respect of which he has reason to suspect that intellectual property rights are infringed by him;
(b) ensure the destruction of goods infringing intellectual property rights;
(c) the removal of goods from trading and other handling of goods where the court has decided that they are goods which infringe intellectual property rights;
(d) discuss administrative offences in breach of this law.
Definition of terms
For the purposes of this Act:
(a) an importer who is a declarant in accordance with the directly applicable European Union44), where a customs declaration is made on imported goods, or a person who has a customs declaration on him or her at the time of customs inspection of the goods entering the customs territory of the European Union or situated in that territory, unless a customs declaration is lodged on the imported goods;
(b) by the exporter, the person who is the declarant under the directly applicable European Union44), where a customs declaration is lodged on the goods exported or re-exported, or the person carrying a customs declaration at the time of the customs inspection of the goods leaving the customs territory of the European Union, if the goods exported or re-exported are not declared.
Prohibitions
Goods infringing intellectual property rights shall be prohibited:
(a) propose for release for free circulation, export or suspensive arrangements,
(b) propose for release for re-export or placing in a free zone or free warehouse;
(c) transport to the customs territory of the European Union, possess, hold, store or sell in the territory of the Czech Republic, if this results in a release of goods to customs supervision.
MEASURES BY THE CUSTOMS AUTHORITY IN IMPLEMENTATION OF CUSTOMS SUPERVISORY
Submission and consultation of an application for action by a customs office and reimbursement of costs
(1) The holder of the right (2) shall submit, on the prescribed form 45, an application for action by the customs office ("the application"). Customs office for the Hradec Králové Region, which is responsible for receiving and discussing applications under the European UnionRegulation (46) (hereinafter referred to as the designated customs office).
(2) Where, in respect of the holding of goods under customs control, costs incurred by the holder of the right is incurred at the customs office, the customs office shall determine by decision the amount to be paid by the holder of the right under the European Union4.
Detention of goods suspected of infringing intellectual property rights
(1) The customs office shall, in the cases provided for in Regulation (EU) No 907 / 2014, detain goods suspected of infringing intellectual property rights irrespective of the rights of third parties and notify this measure orally to the importer or exporter of goods suspected of infringing intellectual property rights.
(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 measure for the detention of goods suspected of infringing intellectual property rights is obliged to issue or arrange for the release of such goods to the customs office. If the goods are not issued to the customs office immediately after notification of this measure, the person carrying them may be removed. A report shall be drawn up on the issue or withdrawal of the goods in question indicating the quantity and description of the goods in question. The Protocol shall be signed by two customs officers and by the person who has issued or has been withdrawn. Any refusal of signature by that person shall be noted in the Protocol. The customs office shall forward to the person who has issued the goods or who has been withdrawn the duplicate of the Protocol.
(4) The customs office may retain the goods in custody suspected of infringing the intellectual property rights and require the person who has been detained to be ordered not to use, dispose of or dispose of the goods otherwise. The legal acts by which this prohibition has been infringed are invalid.
(5) If the time limit for the arrest of goods has elapsed, or if it is not possible for the goods to be seized to be forfeited or prevented or to decide to destroy them pursuant to Paragraph 14, the customs office shall authorise the release of the goods or their detention to be terminated and return the goods to the person who was detained.
(6) The person concerned by the imposition of the measures referred to in paragraph 1 may submit written objections to the customs office which imposed them within 3 working days of the date of its imposition. The objections do not have suspensory effect. The Director of the competent customs office shall decide on the objections without undue delay. His decision is final. The written decision of objections shall be served on the person concerned.
The customs office to which the customs office designated shall communicate information on the decision approving the application and which has detained the goods shall, upon request, notify the holder of the right of residence, the address of the place of residence, the address of residence abroad of the consignee, the consignor, the declarant, the owner or the holder of the goods, if any, of the natural person, the name or business name and, where applicable, the registered office or location of the organisation, if applicable, the legal person, the origin and place of dispatch of the goods suspected of infringing the intellectual property rights (9).
(1) Where the goods retained are to be stored until they are placed under the proposed customs procedure, 12) the conditions for temporary storage of the goods shall apply mutatis mutandis. 13)
(2) Where a security is to be lodged which, pursuant to a regulation of the European Union, can be obtained by the release of goods or the cessation of their detention (14), the security may be lodged in cash on behalf of the customs office or replaced by a financial guarantee. The holder of the right shall, at the request of the customs office, submit within a specified time limit an indication of the amount of security he considers sufficient to protect his interests.
(3) Where the lodging of a security has resulted in the release or termination of the detention of goods which have been definitively decided not to infringe intellectual property rights, or where the conditions laid down in Regulation (EC) No 47 / 47 are met, the security shall be returned to the person who lodged it. Otherwise, the security shall be settled for the benefit of the right-holder at an amount corresponding to the amount fixed by the court's decision on compensation for the damage suffered. If the security lodged is less than or equal to the compensation granted, it shall be settled in full for the benefit of the holder of the right. If the security lodged is higher than the amount of compensation granted, the person who lodged the security shall be returned to the person who lodged the security, part of it remaining after the security has been settled for the payment of the compensation incurred or, where applicable, after deduction of the fine imposed in the administrative proceedings under this law and for the cost of destruction of the goods. The calculation of the security for payment of the fine imposed in administrative proceedings under this Act and the cost of destruction of goods shall be carried out even if the compensation has not been decided.
(4) If the security cannot be lodged in the manner referred to in paragraph 3, the security lodged shall be forfeited to the State. The forfeited security is the income of the state budget.
Treatment of goods infringing intellectual property rights
Destruction of goods by simplified procedure
(1) Where goods suspected of infringing intellectual property rights have been detained, the customs office may, at the request of the holder of the right, decide to destroy the goods in accordance with the simplified procedure laid down in Regulation (EU) No 1616).
(2) The customs office, together with the notification of the detention of goods referred to in Article 9 (1), shall invite in writing the person who has been notified of the detention measure to express in writing, within the time limit laid down by Regulation (EEC) No 1616), whether he agrees to the destruction of the seized goods by a simplified procedure if the right-holder so requests. The customs office shall at the same time draw the attention of the person concerned to the non-application of written objections within the time limit laid down by Regulation (EEC) No 1616) shall be deemed to have been authorised to destroy the goods by a simplified procedure.
(3) Consent to destroy the goods may not be withdrawn in accordance with the simplified procedure referred to in paragraph 2 and after such consent may not be objected to the destruction of the goods.
(4) The destruction shall be carried out at the expense of the importer or exporter; If, at the time the destruction costs are decided, the importer or exporter is not known, died or no longer exists or his residence has not been established, the 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. The destruction shall be subject to an official record indicating the quantity and description of the goods. The official record will be signed by all three customs officers.
(5) Importer, exporter (§ 2) or right-holder may ensure the destruction of 17) goods under the supervision of the customs office.
(6) By decision, the customs office shall determine the amount corresponding to the costs associated with the destruction of the goods. The amount up to 100 CZK will not be saved by the customs office.
Other ways of handling goods
(1) Unless it is decided to destroy the goods in accordance with the simplified procedure laid down in Paragraph 14,
(a) the customs office shall inform the designated customs office thereof and, upon receipt of its statement that the procedure referred to in (b) will not be followed, shall decide on the destruction of the counterfeit or pirated goods referred to in paragraph 2, 3 or 4; or
(b) the designated customs office shall decide on the free transfer of the processed counterfeit goods for humanitarian purposes under the conditions laid down in Article 14b.
(2) The customs office shall ensure the costs of the perpetrator of the administrative offence:
(a) with the consent of the holder of the right to remove trade marks from counterfeit or seized and to destroy such trade marks; or
(b) destruction of forfeited or seized goods infringing intellectual property rights.
(3) Where the perpetrator of an administrative offence is a person unknown or not responsible for the commission of an administrative offence, the customs office shall inform the designated customs office thereof and, upon receipt of its statement, that the procedure referred to in paragraph 1 (b) will not be followed, it shall ensure the destruction of goods which infringe intellectual property rights and which have been prevented from doing so at the expense of the holder of the right. Similarly, if the perpetrator of an administrative offence dies or no longer exists or fails to establish his residence or residence when the destruction costs are decided.
(4) Importer, exporter (§ 2) or right-holder may ensure the destruction of (18) goods infringing intellectual property rights under the supervision of the customs office.
(5) In the cases referred to in paragraphs 2 and 3, the customs office shall, by decision, determine the amount corresponding to the costs associated with the destruction or modification of the goods. The amount up to 100 CZK will not be saved by the customs office.
Free transfer and treatment of counterfeits for humanitarian purposes
(1) The designated customs office shall decide, according to the particulars of the customs office, on the basis of a final decision to forfeit or prevent forgeries and provided that the holder of the right has given his consent to the use of the modified forgeries for humanitarian purposes, which are of a kind which are fit for humanitarian purposes, and which, under the conditions laid down by this Law and by the special legislature, may be transferred free of charge (22) to the receiving organisation referred to in paragraph 2. For these purposes, forgeries which are disabled or 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. operate in one of the areas referred to in point (a);
3. provide humanitarian aid continuously for at least 2 years;
4. Prove by the competent authority not earlier than 3 months that they do not have tax arrears, social security arrears and contributions to state employment policy, including periodic penalty payments, insurance premiums for public health insurance, including penal25).
(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 designated customs office referred to in paragraph 1 and at its expense to ensure the removal of the trade marks and the destruction of the trade marks removed, unless such adjustments have been ensured in accordance with Paragraph 14a (2) before a free transfer,
(c) make use of the counterfeits modified in accordance with (b) for humanitarian purposes only;
(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 or with the receiving organisation, if it is an organisational component of the local authority, with a written contract which shall contain the specific purpose for which the receiving organisation shall use the counterfeits. A record shall be drawn up in accordance with the law on the property of the Czech Republic and its presentation in legal relations on the free treatment of counterfeit goods for humanitarian purposes between the organisational components of the State.
(5) The customs office shall be entitled to check the performance of the obligations referred to in paragraph 3 and the obligations arising from the contract referred to in paragraph 4 with the receiving organisation. It shall inform the designated customs office of the outcome of the inspection.
(6) Humanitarian purposes referred to in paragraphs 1, 3 and 4 are to ensure the basic needs of the population who are in a difficult living situation or suffer from an exceptional occurrence where the use of exceptional material resources is justified.
ADMINISTRATIVE DEPARTMENTS
TRANSFERS
A natural person commits an offence by:
(a) lodge a customs declaration for release for free circulation, the export arrangements or the suspensive arrangements in breach of Article 3 (a) for goods infringing intellectual property rights;
(b) lodge an application for the release of goods infringing intellectual property rights for re-export or request its placing in a free zone or free warehouse in breach of Article 3 (b);
(c) transports to the customs territory of the European Union, owns, holds, stores in contravention of § 3 (c), or sells in the territory of the Czech Republic goods which infringe intellectual property rights which have escaped customs supervision; or
(d) as a person who has been left by the customs office of departure of the goods in respect of which the infringement of intellectual property rights has been suspected, in breach of Article 9 (4), to be used, exported or otherwise disposed of.
(1) A fine of up to 100 000 CZK may be imposed for an offence pursuant to § 15 (a) and (b). A penalty of up to CZK 1 000 000 may be imposed for an infringement pursuant to § 15 (d).
(2) A fine may be imposed for an offence pursuant to § 15 (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,
(c) up to 20 000 000 CZK, if the perpetrator has violated his obligations to a significant extent.
(3) The infringement is to a greater extent if the customs value of the goods infringing intellectual property rights exceeds CZK 1 000 000, and if the goods are exported or re-exported, if the statistical value of the goods applied under the European Union37) exceeds CZK 1 000 000. An infringement of the obligation to a significant extent is the case where the customs value of goods whose manufacture or treatment has infringed intellectual property rights exceeds CZK 5 000 000, and where the goods are exported or re-exported, if the statistical value applied under the European Union37 Regulation exceeds CZK 5 000 000.
ADMINISTRATIVE DEPARTMENTS OF LEGAL PERSONS AND ENTERPRISE PHYSICAL PERSONS
A legal person or an undertaking natural person commits an administrative offence by:
(a) lodge a customs declaration for the release of goods infringing intellectual property rights for the free circulation, export or suspension procedure in breach of Article 3 (a);
(b) lodge an application for the release of goods infringing intellectual property rights for re-export or request its placing in a free zone or free warehouse in breach of Article 3 (b);
(c) transports to the customs territory of the European Union, owns, holds, stores or sells in the territory of the Czech Republic goods which infringe intellectual property rights which have escaped customs supervision in breach of § 3 (c);
(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
(e) as a acquiring organisation, after a free transfer of counterfeits, it fails to fulfil any of the obligations under Paragraph 14b (3).
(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) Infringements are to a greater extent when the customs value of goods infringing intellectual property rights exceeds CZK 1 000 000, and when goods are exported or re-exported if the statistical value applied under the European Union37) exceeds CZK 1 000 000. Infringement of obligations 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 if the statistical value applied under the European Union37) exceeds CZK 5 000 000.
COMMON PROVISIONS
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.
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) the perpetrator of the administrative offence is unknown;
(b) belong to a person who cannot be prosecuted for an administrative offence; or
(c) it is not the perpetrator of an administrative offence or it is not entirely the perpetrator of an administrative offence.
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 conduct which took place during or in direct connection with the business of a natural person is subject to liability and penalty provisions of a legal person.
(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.
CONSUMER PROTECTION IMPLEMENTATION
The customs office shall inform the person who initiated the inspection of the infringement or of any other deficiencies detected and the reasons therefor.
(1) When carrying out supervision under the Consumer Protection Act, irrespective of the rights of third parties, the customs office may detain goods if there is a suspicion that there is a breach of the provisions of the Special Legislation (49) or of the prohibition of the marketing, sale and export of products intended for humanitarian purposes under this Act or of the Specific Legislation (50) in connection with its offer or sale.
(2) Article 9 (3), (4) and (6) shall apply mutatis mutandis when the goods referred to in paragraph 1 are detained.
(3) The customs office may store the goods retained at the expense of the person checked, including the costs of securing and transport in connection with the storage.
(4) If it is not possible for the goods to be seized to be forfeited or prevented, the customs office of detention shall terminate the goods and return the goods to the person who was detained.
(1) Where the customs office finds in administrative proceedings conducted under the Consumer Protection Act that a prohibition on the use of misleading commercial practices has been infringed) or a prohibition on the offering, sale and export of products intended for humanitarian purposes, it shall, in addition to the fine and forfeiture, impose a decision or prevent goods which are infringed by the legislation. Paragraph 28a and 28b shall apply mutatis mutandis to the storage of forfeiture and to prevent goods.
(2) The customs office shall ensure the costs of the perpetrator of the administrative offence:
(a) with the consent of the holder of the right to remove trade marks from counterfeit or seized and to destroy such trade marks; or
(b) the destruction of fallen or seized goods in connection with the offering or sale of which has been in breach of the prohibition on the use of misleading commercial practices.
(3) Where the perpetrator of an administrative offence is a person unknown or not responsible for the commission of an administrative offence, the customs office shall ensure the destruction of the goods in connection with the offer or sale of which the prohibition of the use of misleading commercial practices has been infringed and the use of which has been ruled out. In that case, the cost of destruction shall be borne by the State.
(4) The customs office may decide to transfer them to the receiving organisation free of charge in accordance with Article 14b if the counterfeit or seized counterfeit goods are available for humanitarian use.
(5) In the cases referred to in paragraph 2, the customs office shall, by decision, determine the amount corresponding to the costs of destruction or adjustments.
COMMON PROVISIONS
(1) Costs pursuant to Articles 4 (2), 14 (6), 14a (5) and 30 (5) shall be payable within 30 days of the date of receipt of the decision of the customs office on their amount to the persons concerned.
(2) Costs may be prescribed in respect of the goods and persons referred to in the provisions referred to in paragraph 1 by decision only within 3 years of the end of the calendar year in which the customs office became aware of:
(a) a final decision by the court that it is counterfeit or pirated;
(b) the adoption of interim measures by the court to destroy the goods;
(c) the latest costs incurred by the customs office with the maintenance of the goods under customs control and the destruction of the goods and the other handling of the goods incurred in relation to the goods in question.
(1) The appeal against decisions of customs offices under this Act does not have suspensory effect. This does not apply to appeals brought against decisions on administrative delicacies and order fines.
(2) The appeal authority shall also indicate in the decision rejecting the appeal against a decision under this law the period within which the court may bring an action for review of that decision. 39)
In respect of the collection and recovery of costs effectively incurred by the customs authorities resulting from the obligation to have goods under customs control and the costs of the removal, destruction and treatment of goods, the customs authorities shall, mutatis mutandis, comply with specific legislation on the administration of taxes and charges. 40)
Amendment to the Code of Criminal Procedure
Act No. 141 / 1961 Coll., on the Criminal Procedure of the Court (Criminal Code), as amended by Act No. 57 / 1965 Coll., Act No. 58 / 1969 Coll., Act No. 149 / 1969 Coll., Act No. 48 / 1973 Coll., Act No. 29 / 1978 Coll., Act No. 43 / 1980 Coll., Act No. 159 / 1989 Coll., Act No. 178 / 1990 Coll., Act No. 209 / 1990 Coll., Act No. 148 / 1998 Coll., Act No. 166 / 1998 Coll., Act No. 25 / 1993 Coll., Act No. 115 / 1993 Coll., Act No. 152 / 1995 Coll., Act No. 152 / 1995 Coll., Act No. 150 / 1997 Coll.
In Article 12 (2) (g), the dot at the end is replaced by a comma and the following points (h), (i) and (j) are added:
"(h) infringement of trade mark rights, trade name and protected designation of origin pursuant to Section 150 of the Criminal Code, where the offence has been committed in connection with the import, export or transit of goods,
(i) infringements of industrial rights under Section 151 of the Criminal Act, where the offence has been committed in connection with the import, export or transit of goods;
(j) infringement of copyright pursuant to Article 152 of the Criminal Code, where the offence has been committed in connection with the import, export or transit of goods. ';
EFFECTIVE
That law shall take effect on the first day of the third calendar month following its publication.
Klaus v. r.
Havel v. r.
Zeman v. r.
1) Council Regulation (EC) No 1383 / 2003 of 22 July 2003 on the taking of measures by customs against goods suspected of infringing intellectual property rights and on 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 intervention against goods suspected of infringing intellectual property rights and on measures to be taken against goods found to have infringed those rights, as amended by Commission Regulation (EC) No 1172 / 2007 of 5 October 2007.
(1a) Act No. 634 / 1992 Coll., on Consumer Protection, as amended.
2) Article 2 (2) of Council Regulation (EC) No 1383 / 2003.
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.
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Regulation Information
| Citation | 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 |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 02.09.1999 |
|---|---|
| Effective from | 01.12.1999 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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