Full text of Act No. 223 / 2007 Coll.
Full text of 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 resulting from subsequent amendments
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Declared full text
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28.08.2007
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223
PRESIDENT OF THE GOVERNMENT
announces the full text of Act No. 191 / 1999 Coll., on the measures relating to the import, export and re-export of goods infringing certain intellectual property rights and amending certain other laws, as is apparent from the amendments made by Act No. 121 / 2000 Coll., Act No. 260 / 2002 Coll., Act No. 255 / 2004 Coll. and Act No. 173 / 2007 Coll.
THE LAW
on measures relating to the import, export and re-export of goods infringing certain intellectual property rights
Parliament has decided on this law of the Czech Republic:
INTRODUCTORY PROVISIONS
(1) This Act regulates the conditions under which action by the customs office against persons who own, hold, store or sell goods infringing intellectual property rights in the customs territory of the European Communities is implemented against persons who possess, store or sell intellectual property rights in the customs territory of the European Communities and in the protection of the internal market (1a).
(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) to exclude goods from trading and other treatment of goods which have been recognised by the court as infringing intellectual property rights; or
(d) to discuss offences and administrative offences in breach of this law.
cancelled
APPLICATION FOR MEASURES BY THE CUSTOMS AUTHORITY
Application for action by the customs office and reimbursement
(1) The right-holder (2) of intellectual property, the person entitled to use any right of such property or their representative (the right-holder) shall submit an application for action by the customs office (the application) on the prescribed form (3). To the Hradec Králové Customs Directorate ("the Customs Directorate '), which decides to approve or reject the application. The Customs Directorate shall immediately inform the competent customs office which is to implement the measure when the application is approved and shall forward this decision, as well as the decision to which it rejects the application, to the right-holder.
(2) Where it has been decided by a final court that the goods in question are goods which infringe intellectual property rights, they shall pay the costs of maintaining the goods under customs control on importation of the importer, on export or re-export of the exporter, in other cases the owner or holder of the goods.
(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.
cancelled
WITHDRAWAL OF GOODS INFRINGED BY THE RIGHT TO INSTALLATION IN THE IMPLEMENTATION OF CUSTOMS SUPPORT
(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.
repealed
CONDITIONS FOR MEASURES BY THE CUSTOMS AUTHORITY
(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.
repealed
(1) Where the goods retained are to be stored until they are placed under the proposed customs regime (12), the conditions for temporary storage shall apply mutatis mutandis.
(2) If a security is to be lodged 14), the security may be lodged in cash on behalf of the customs office or replaced by a bank guarantee (15).
Treatment of goods infringing intellectual property rights
(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 the intellectual property rights have been infringed (16), 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.
(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 will be signed by all three customs officers.
(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.
(4) If the Court of First Instance decides that, prior to the further treatment of forgeries (20), it is sufficient to remove the marks (21), the customs office will ensure that they are removed and destroyed at the expense of the importer, at export or re-export at the expense of the exporter. The customs office shall ensure that trade marks are removed under the conditions referred to in paragraph 5 (a) (1) and destroyed in accordance with paragraph 5 (b), if forfeited or prevented.
(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) the 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).
(6) If the perpetrator of an administrative offence or the person who is not responsible for the commission of an administrative offence is not known, the customs office shall ensure the destruction of goods which infringe intellectual property rights and which have been prevented in an administrative offence proceedings at the expense of the right-holder.
(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 to be paid for that amount.
(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 under the special legislature26) in instalments.
(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.
ADMINISTRATIVE DEPARTMENTS
TRANSFERS
A natural person commits an offence by:
(a) lodge a customs declaration for release for free circulation or the export procedure of goods infringing intellectual property rights;
(b) lodge an application for the release of goods which infringe intellectual property rights for re-export or request its placing in a free zone or free warehouse;
(c) transports into the customs territory of the Community, owns, holds, stores or sells in the territory of the Czech Republic goods which are infringing 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) An infringement of the obligation is to a greater extent if the customs value of goods infringing intellectual property rights exceeds CZK 1 000 000, and if the goods are exported or re-exported, if the statistical value of goods applied under the European Community37) exceeds CZK 1 000 000. 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 if the goods are exported or re-exported, if the statistical value applied under the European Communities37) exceeds CZK 5 000 000.
cancelled
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 or export procedure;
(b) submit 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;
(c) transports to the customs territory of the Community, owns, holds, stores or sells in the territory of the Czech Republic goods which are infringing intellectual property rights which have escaped customs supervision;
(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 one of the obligations under Paragraph 14a (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) 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 which infringe intellectual property rights exceeds CZK 5 000 000, and where goods are exported or re-exported, exceeds the statistical value applied under the European Community37) an amount of CZK 5 000 000.
cancelled
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) 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.
cancelled
COMMON PROVISIONS
(1) The costs referred to in Article 4 (3) are due 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.
(3) Costs may be prescribed in respect of the goods and persons referred to in the provisions referred to in paragraphs 1 and 2 by decision only within 3 years of the end of the calendar year in which the customs office or 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 the customs authorities under this Act does not have suspensory effect. This does not apply to appeals brought against decisions on administrative delicacies.
(2) The appeal authority shall also state 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.
(1) The income from the sale of forfeited or seized goods is the income of the state budget.
(2) In the cases of collection and recovery of costs effectively incurred by the customs authorities resulting from the obligation to have goods under customs supervision and the costs of removal and destruction of goods, the customs authorities shall, mutatis mutandis, comply with the specific legislation on the administration of taxes and charges (40).
repealed
Measures by the customs office for the protection of the internal market against goods and goods not under customs control and infringing intellectual property rights
(1) In carrying out supervision of compliance with the obligations laid down in special legislation41), the customs office shall be entitled to:
(a) enter in the exercise of control
1. to establishments or warehouses which he has reason to suspect may offer, store or sell products or goods in breach of intellectual property rights;
2. to the premises of the manufacturer, importer or distributor and require the submission of relevant documentation and the provision of true information. The manufacturer, importer or distributor may be invited by the customs office to arrange for and submit the professional statement of the person competent for the subject of supervision or to invite the right-holder to supervise,
(b) verify the identity of the natural persons, if they are controlled persons, as well as the identity of the natural persons who represent the controlled persons in the control and the authorisation to represent them;
(c) require the necessary documents, particulars and written or oral explanations from the persons checked;
(d) take the necessary samples of products or goods as compensation from the persons checked to assess whether they are a product or goods infringing intellectual property rights. A refund shall be granted for samples of products or goods taken from the person checked at the price at which the product or goods are offered at the time of taking the sample. No refund shall be granted if the person checked surrenders to him or her. The right to reimbursement shall not arise if the product or goods are definitively decided that they are goods which infringe intellectual property rights.
(2) Controlled persons shall be obliged to allow customs officers to carry out their inspection tasks and to provide them with the necessary synergies.
(1) The customs office is authorised to store the products and goods retained at the expense of the person checked, including the costs of detention and transport in connection with storage.
(2) The customs office shall, in addition to a fine, deposit or prevent goods or goods infringing intellectual property rights.
(3) The customs office shall ensure the destruction of fallen or seized products or, where they are usable for humanitarian purposes, the Director of the customs office may determine that they shall be provided for such purposes free of charge.
(4) Destruction shall be carried out on the cargo of the controlled person who has offered, sold or stored the products or goods.
(5) The customs office shall impose an obligation to pay the costs referred to in paragraphs 1 and 4 by a decision with a deadline of 30 days from the date of notification of the decision. If the costs are not paid within the payment deadline, the customs office shall proceed with their recovery under the special legislation43).
(6) The provisions of Sections 9, 14, 14a, 28a, 28b and 31a shall apply mutatis mutandis to the detention of goods, the destruction of counterfeit or pirated goods, the provision of prepared forgeries for humanitarian purposes, the forfeiture and the prevention of goods and the appeal against decisions of customs authorities.
Efficacy
That law shall take effect on the first day of the third calendar month following its publication.
* * *
1. Act No. 121 / 2000 Coll., on copyright law, on copyright law and on the amendment of certain laws (copyright law), became effective on 1 December 2000.
2. Act No. 260 / 2002 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 by Act No. 121 / 2000 Coll., Act No. 586 / 1992 Coll., on Income Taxes, as amended, Act No. 593 / 1992 Coll., on Reserves for the Protection of the Income Tax Base, as amended, and Act No. 569 / 1991 Coll., on the Regional Fund of the Czech Republic, as amended, became effective on 1 September 2002.
3. Act No. 255 / 2004 Coll., 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, took effect on the date of entry into force of the Treaty of Accession of the Czech Republic to the European Union (1 May 2004).
4. Act No. 173 / 2007 Coll., 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, took effect on the date of its publication (12 July 2007).
Prime Minister:
Ing. Topolánek v. r.
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) 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.
4) Article 6 of Council Regulation (EC) No 1383 / 2003.
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Regulation Information
| Citation | Full text of Act No. 223 / 2007 Coll., Act No. 191 / 1999 Coll., on measures concerning the import, export and re-export of goods infringing certain intellectual property rights and on the amendment of certain other laws, as resulting from subsequent amendments |
|---|---|
| Regulation Type | Declared full text |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 28.08.2007 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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