Full text of Act No 358 / 2004 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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09.06.2004
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358
PRESIDENT OF THE GOVERNMENT
Announces
the 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 follows from the amendments made by Act No. 121 / 2000 Coll., Act No. 260 / 2002 Coll. and Act No. 255 / 2004 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 law lays down the conditions under which intervention by the customs office against persons who own, hold, store or sell goods whose intellectual property rights have been infringed in the customs territory of the European Communities (hereinafter referred to as "the Community") in accordance with the immediately binding Community legislation (1).
(2) That law also lays down the conditions under which the customs office is entitled
(a) to ensure that goods which he has reasonable grounds for suspecting that their manufacture or treatment has infringed intellectual property rights;
(b) ensure the destruction of the goods;
(c) exclude goods from trading and other treatment of goods which have been recognised by the court as having been produced or processed in breach of intellectual property rights; or
(d) to discuss offences and administrative offences in breach of this law.
Definition of terms
For the purposes of this Act:
(a) the intervention of the customs office by an act carried out by the customs office under this law;
(b) the humanitarian purposes of the activity carried out in order to ensure the essential needs of the population in a difficult living situation or to be affected by an exceptional occurrence where the use of exceptional material resources is justified.
repealed
APPLICATION FOR CUSTOMS SUPPORT
Application for intervention by the customs office and reimbursement of costs
(1) The right-holder (2) applies for intervention by the customs office ("the application") 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 to carry out the intervention 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) Application shall be made on the prescribed form.3)
(3) In the event that the proceedings initiated pursuant to Paragraph 11 are suspended because of the conduct or omission by the right-holder, or where the goods in question are subsequently verified as not being manufactured or processed, or where the right-holder uses the information referred to in Article 11 (1) for purposes other than the application of the Civil Code or for the application of Article 14 (1), the right-holder shall assume liability towards persons involved in the procedure (4) and shall pay all costs associated with the maintenance of the goods under customs supervision. Where it has been established, in accordance with the first sentence, that the goods in question are goods the manufacture or treatment of which has infringed intellectual property rights, those costs shall be paid on importation of the importer, on export or re-export of the exporter, in other cases the owner or holder of the goods. The Customs Directorate shall send the right-holder in writing, or, if the right-holder so requests, an electronic communication signed under a special law, 5) (hereinafter referred to as "electronically '), indicating the amount which he is obliged to pay on the basis of a declaration (6) made in writing or electronically, indicating the account number to which the amount is to be paid.
cancelled
DETERMINATION OF GOODS WHOSE PRODUCT OR ADJUSTMENT HAS BEEN INFRINGED BY THE RIGHTS TO THE INDUSTRY IN IMPLEMENTATION OF THE CUSTOMS SUPPORT
(1) The customs office which has secured the goods in the course of customs surveillance (7) at the time when the application has not yet been lodged shall immediately inform the proprietor of the right, if he is aware, in writing or electronically, of the fact found to be a breach of his right in order to be able to submit an application pursuant to Article 4, and of the particulars only of the actual or anticipated quantity of the goods and their nature. It shall likewise proceed when the goods are presented to the customs office by another authority under a special legislation. 8)
(2) The customs office may provide the goods referred to in paragraph 1 to the person for whom they have been found, irrespective of the rights of third parties. The customs office shall take a decision to secure the goods and deliver them to the person to whom the goods have been secured. The decision to secure the goods may be appealed against by the person to whom the goods have been secured within the period specified in the decision to which they have been secured from the date of service.
(3) The customs office of guarantee may leave the goods to the person to whom the decision has taken them and order them not to use, dispose of or dispose of them otherwise. The actions by which this prohibition has been violated are invalid.
(4) The person who received the decision to secure the goods is obliged to issue the goods to the customs office. If the secured goods are not issued at the request of the customs office, they may be removed from the person carrying them. The issue or withdrawal of the goods shall be subject to an official record signed by two customs officers and by the person who issued the goods and, where appropriate, by whom the goods have been removed, indicating the quantity and description of the goods. The customs office of departure shall forward the duplicate of the official record to the person who issued the goods and, where appropriate, to the person who has withdrawn them.
(5) If it is not possible for the goods secured to impose a forfeiture penalty or safeguard measure by preventing or deciding to destroy the goods in accordance with Paragraph 14, they shall be returned to the person who has been secured. Where another person exercises the right to such secured goods and the customs office has doubts as to whether that person or person who has secured the goods is the owner of the goods, it shall propose that those persons apply their claim to the court within the time limit which it grants them.
repealed
CONDITIONS FOR THE PRINCIPLE OF THE CUSTOMS AUTHORITY
(1) The customs office to which the decision to approve the application has been served by the customs office of departure and which has secured the goods shall, upon request, send the holder of the right in writing or electronically a communication containing, where appropriate, the name, surname and address of the place of permanent residence or the name or business name of the consignee and of the registered office, the name and address of the natural person involved and the address of the place of permanent residence, the declarant, the owner or the holder of the goods, and, if known, the name, surname and address of the place of residence or the company and the registered office of the consignee and consignor, as well as details of the origin and the place of dispatch of the goods whose manufacture or processing has been infringed intellectual property in order for the protection of his right. 9)
(2) The customs office may transmit or transmit the samples taken to the owner of the right to his express request only for the purpose of analysing and facilitating further proceedings. 10)
(3) The right-holder must immediately inform the customs office, in writing or electronically, that a procedure has been initiated to determine whether goods the manufacture or modification of which has infringed intellectual property rights. 11)
repealed
(1) Where secured goods 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, 14) the security may be lodged in cash on behalf of the customs office or replaced by a bank guarantee. 15) Submission of a check guaranteed by the bank shall be deemed to consist of cash on behalf of the customs office.
Treatment of goods the manufacture or modification of which has infringed intellectual property rights
(1) Where goods whose manufacture or treatment has infringed the rights of the owner of the intellectual property have been secured, the customs office shall decide, at his request, to destroy the goods and ensure destruction under the supervision of three customs officers. An official record shall be drawn up of the destruction, signed by all three customs officers, including the quantity and description of the goods, without any further need to verify whether the intellectual property right has been infringed, 16), provided that:
(a) the holder of the right shall inform the customs office, in writing or electronically, within 10 working days or three working days, if the perishable goods are concerned, of the fact that the goods are being manufactured or processed in breach of his intellectual property right and shall transmit to the customs office the agreement of the declarant, 17) the owner or holder of the goods made in writing or electronically with the destruction of the goods; with the agreement of the customs office, the declarant, owner or holder of the goods may transmit this information in writing or electronically directly to the customs office. Where the declarant, the owner or the holder of the goods does not object to destruction within the prescribed period, such approval shall be deemed to have been accepted. Where circumstances so require, that period may be extended by a further 10 working days,
(b) before destruction, samples shall be taken which are kept by the customs office in such a way that they can serve as evidence admissible in any judicial proceedings; and
(c) destruction shall be carried out at the expense and responsibility of the declarant, owner or holder of the goods.
(2) Where the Court of First Instance decides that the goods in question are goods the manufacture or treatment of which has infringed intellectual property rights, 18) or are goods the manufacture or modification of which has infringed intellectual property rights and which have been left to the benefit of the State, and the declarant, owner or holder has not himself destroyed them, 19), and if no decision has been taken to forfeit or prevent such goods, the customs office will ensure that the goods are destroyed at the expense of the declarant, owner or holder of the goods. Where the customs office is not the owner or holder of the goods whose manufacture or treatment has been made known to infringe intellectual property rights or is not established, the customs office shall ensure that they are destroyed at the expense of the holder of the right.
(3) If the court decides, in a final decision, that before 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 declarant, owner or holder of the goods. The customs office shall ensure that trade marks are removed under the conditions referred to in paragraph 4 (a) and destroyed in accordance with paragraph 4 (c) if forfeited or prevented.
(4) The customs office shall provide for the costs of the perpetrator of the offence or administrative offence:
(a) with the consent of the proprietor of the right made in writing or electronically, the removal of marks from forfeited or seized counterfeits, as decided by the court, in such a way that they can be disposed of in a manner other than by sale;
(b) with the consent of the proprietor of the right in writing or by electronic means (5), to make adjustments to forfeited 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 manner other than their sale; or
(c) the destruction of goods which have been forfeited or seized, the manufacture or treatment of which has infringed intellectual property rights, trade marks removed under (a), waste and residues resulting from other adjustments under (b).
(5) Where 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 comply with it, the customs office shall ensure the destruction of goods the manufacture or modification of which has infringed intellectual property rights and for whom the offence or administrative offence has been ruled out at the expense of the right-holder.
(6) 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 paragraph 4 for humanitarian purposes in writing or electronically, which are legally forfeited or seized, and which, under the conditions laid down by this Law and the special provisions, may be transferred free of charge to the recipient organisation referred to in paragraph 7. For humanitarian purposes, counterfeit goods which are clearly disabled cannot be transferred free of charge. Counterfeits shall be transferred free of charge according to the purpose and use or urgency of the needs, taking into account the order of the requests received.
(7) The receiving organisations may:
(a) the organisational components and contribution organisations of the State or local authorities established for the purpose of providing social care or in the field of health or education, 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 for at least 2 years; and
4. Confirm 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 national employment policy, including periodic penalty payments, due arrears on public health insurance premiums, including periodic penalty payments. 25) For the purposes of this Act, a payment due in respect of social security contributions and a contribution to the state employment policy shall also be understood as a payment of premiums, including periodic penalty payments, for which payment has been granted under the special legislature26).
(8) The receiving organisation shall:
(a) take measures to prevent the diversion and re-entry into trade of counterfeits;
(b) ensure, under the conditions laid down by the Customs Directorate and at its expense, the removal of the trade marks referred to in paragraph 4 (a) or the execution of other adjustments in the manner referred to in paragraph 4 (b) and the destruction of the trade marks, waste and residues removed after those adaptations referred to in paragraph 4 (c);
(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 3 years from the time of the free transfer; This shall be without prejudice to the provisions of specific provisions governing the registration and archiving of the documents provided for. 27)
(9) On the free transfer of counterfeits for humanitarian purposes, the Directorate-General for Customs and the Receiving Organisations referred to in paragraph 7 shall conclude a written contract, which, in addition to the usual essential requirements, shall always contain the type and quantity of counterfeits transferred free of charge, the conditions of the Customs Directorate referred to in paragraph 8 (b) and the provisions on the contractual fine (28) in the event of a breach of the obligation to transfer counterfeits free of charge solely for humanitarian purposes and the specific purpose for which the accepting organisation shall apply the counterfeit.
(10) The customs office shall be entitled to check with the receiving organisation the fulfilment of the obligations to which the receiving organisation has contracted. The Customs Directorate shall inform the outcome of the inspection.
(1) The State is not liable for damage, 29) which arose
(a) the proprietor of the right by not revealing, by the customs office, goods the manufacture or treatment of which has infringed intellectual property rights or by the release of such goods, or by not taking measures to ensure it, 30) if the damage to which the State's liability is governed by a special law, 31)
(b) persons concerned by acts of intervention of the customs office where the inspection carried out by the customs office at the time of the customs procedure and before or after the application has been lodged, no loss or damage, except for damage caused by an unlawful decision or by an incorrect official procedure of the customs office.
(2) Civil liability of the right-holder is governed by the Civil Code.
TRANSITIONS AND ADMINISTRATIVE DEBRES
TRANSFERS
(1) A natural person commits an offence by:
(a) lodge a customs declaration for release for free circulation of goods the manufacture or treatment of which has been infringed by intellectual property rights (32) or the export procedure, 33)
(b) lodge an application for the release of goods whose manufacture or treatment has been infringed by intellectual property rights, re-export or request its placing in a free zone or free warehouse, 34)
(c) the release for free circulation, the export or re-export procedure or one of the suspensive arrangements, 36) or the placing in a free zone or free warehouse of goods whose manufacture or processing has been infringed;
(d) transports into the customs territory of the Community, owns, holds, stores or sells in the territory of the Czech Republic goods which have escaped customs supervision and whose manufacture or treatment has infringed intellectual property rights; or
(e) fail to comply with the conditions for the disposal of goods secured under this law.
(2) The following penalties may be imposed for an offence:
(a) fine,
(b) forfeiture of goods.
(3) The customs office in whose territory the offence has been detected shall be responsible for the infringement proceedings at first instance.
Transfers
(1) A fine of up to 100 000 CZK may be imposed for an offence pursuant to § 15 (1) (a) and (b). A fine of up to CZK 1 000 000 may be imposed for an infringement pursuant to § 15 (1) (e).
(2) A fine may be imposed for an offence pursuant to § 15 (1) (c) and (d)
(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 goods whose manufacture or treatment has infringed 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 special legislation37) exceeds CZK 1 000 000. Infringement of obligations 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 the goods are exported or re-exported if the statistical value applied under the special legislation37) exceeds CZK 5 000 000.
(4) The penalty for the offence referred to in Article 15 (1) may be imposed within one year of the date on which the customs office responsible for the infringement became aware of the infringement, but no later than six years after the infringement or failure to comply with the obligation.
(5) Penalties for forfeiture of goods may be imposed either separately or together with penalties.
cancelled
Wasting of goods
(1) In addition to the fine or on its own, forfeiture of goods belonging to the offender may also be imposed, and
(a) has been used or intended to commit an offence; or
(b) has been obtained by offence or has been acquired for goods obtained by offence.
(2) The forfeiture of goods may be imposed even if its value is in a noticeable disparity to the nature and severity of the offence.
(3) The forfeiture of goods shall be imposed only within the time limits referred to in Article 16 (4).
Preventing goods
(1) If the offence was not punishable by the forfeiture of goods, the customs office shall decide that such goods are to be taken up if:
(a) belong to the offender who cannot be prosecuted for an offence;
(b) it does not belong to the perpetrator of the offence or it does not belong to him completely
and where the safety of persons or property or other general interest so requires.
(2) The customs office shall decide that the goods are to be taken up unless the person who has infringed the law is known in one of the ways set out in Paragraph 15 (1).
(3) Goods may not be prevented if 6 years have elapsed since the offence.
cancelled
ADMINISTRATIVE DEPARTMENTS
Administrative offences
(1) A legal person and a natural person who is an entrepreneur commit an administrative offence in their business by:
(a) lodge a customs declaration for the release into the free circulation or export procedure of goods whose intellectual property rights have been infringed by manufacture or treatment;
(b) lodge an application for the release of goods whose manufacture or treatment has been infringed by intellectual property rights, re-export or request its placing in a free zone or free warehouse;
(c) the release for free circulation, the export or re-export procedure or one of the suspensive arrangements, or the placing in a free zone or free warehouse of goods whose manufacture or processing has been infringed by the customs legislation;
(d) transports into the customs territory of the Community, owns, holds, stores or sells in the territory of the Czech Republic goods which have escaped customs supervision and whose manufacture or treatment has infringed intellectual property rights; or
(e) failure to comply with the conditions for the disposal of goods secured under this Act or to comply with the conditions for the disposal of goods transferred free of charge for humanitarian purposes.
(2) The following penalties may be imposed for an administrative offence:
(a) fine,
(b) forfeiture of goods.
(3) The customs office in whose territory the administrative offence has been detected shall at first instance be responsible for administrative proceedings.
(1) A fine of up to 100 000 CZK may be imposed for an administrative offence pursuant to § 23 (1) (a) and (b). For an administrative offence pursuant to § 23 (1) (e), a fine of up to CZK 1 000 000 may be imposed.
(2) A fine may be imposed for an administrative offence pursuant to § 23 (1) (c) and (d)
(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) Infringement of obligations to a greater extent is the case where the customs value of goods whose manufacture or treatment has infringed intellectual property rights exceeds CZK 1 000 000, and the goods are exported or re-exported if the statistical value applied under the special legislature35) exceeds CZK 1 000 000.
(4) 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 the goods are exported or re-exported if the statistical value applied under the special legislation exceeds CZK 5 000 000.
(5) A fine for an administrative offence pursuant to Article 23 (1) may be imposed within one year of the date on which the customs office responsible for the infringement became aware of the facts in breach of this law, but no later than six years after the date on which the infringement or non-compliance took place.
(6) Penalties for the forfeiture of goods may be imposed either separately or together with penalties.
cancelled
Wasting of goods
(1) The confiscation of goods belonging to the offender may be imposed if:
(a) has been used or intended to commit an administrative offence; or
(b) the administrative delicacy has been obtained or has been acquired for the goods by the administrative delicacy obtained.
(2) The forfeiture of the goods may be imposed even if the value of the goods is in a distinct proportion to the nature and severity of the administrative offence.
(3) The forfeiture of goods shall be imposed only within the time limits referred to in Paragraph 24 (5).
Preventing goods
(1) Where no penalty has been imposed on the forfeiture of goods for an administrative offence, the customs office shall decide that such goods are taken up if:
(a) belong to an offender 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 customs office shall decide that the goods are to be taken up unless the person who has infringed the law is known in one of the ways set out in Article 23 (1).
(3) Goods may not be prevented if six years have elapsed since the administrative offence was committed.
COMMON PROVISIONS
(1) The owner of the fallen and seized goods becomes the owner.
(2) The fines are collected and enforced by the customs office which imposed them. The income from fines and the sale of fallen and seized goods is the income of the state budget.
(3) The fine imposed on an offence or administrative offence under this law shall be payable within 30 days of the date on which the decision by which it was imposed became final.
cancelled
COMMON PROVISIONS
(1) The costs referred to in Article 4 (3) shall be payable within 30 days of the date of receipt of the communication from the Customs Directorate of their amount. If the prescribed amount communicated under Paragraph 4 (3) is not paid within the time limit, the customs office shall prescribe it to the right-holder by a decision to pay it. 38)
(2) The costs referred to in Article 14 (1) to (5) are payable within 30 days of the date of service of the decision.
(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 the manufacture or treatment of goods has infringed intellectual property rights;
(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 infringements and administrative delicacies.
(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)
(1) The contractual fines provided for in Paragraph 14 (9) constitute the revenue of the State budget.
(2) 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 and destruction of goods, the customs authorities shall, mutatis mutandis, comply with specific legislation on the administration of taxes and charges. 40)
Unless otherwise provided for in this law, the administrative rules shall apply to proceedings before the customs authorities. 41)
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Regulation Information
| Citation | Full text of Act No. 358 / 2004 Coll., Act No. 191 / 1999 Coll., on Measures concerning Import, Export and Re-Export of Goods Infringement of Certain Intellectual Property Rights and on the Amendment of Certain Other Acts, as resulting from subsequent amendments |
|---|---|
| Regulation Type | Declared full text |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 09.06.2004 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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