Full text of Act No. 459 / 2002 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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01.11.2002
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459
PRESIDENT OF THE GOVERNMENT
Announces
the full text of 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 is apparent from the amendments made by Act No. 121 / 2000 Coll. and Act No. 260 / 2002 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:
MEASURES RELATING TO IMPORTS, EXPORTS AND REEXPORTS OF GOODS INFRINGING CERTAIN RIGHTS OF DUTY
SUBJECT MATTER OF THE ADJUSTMENT
(1) That law shall lay down the conditions under which the customs office shall take measures where it is reasonably suspected that the goods are counterfeit or pirated in respect of which:
(a) declared for free circulation, (1) under export arrangements (2) or an application for re-export is made, (3)
(b) detected when carrying out customs supervision and customs control, placed under one of the suspensive arrangements (4) or placed in a free zone or free warehouse. 5)
(2) The law also provides for the authorisation of customs offices in undisputed cases in an infringement or administrative offence procedure under that law to recognise goods as forgery or unlawful imitation, to order destruction or other degrading of goods which have been recognised by the customs office or court as forgery or illegal imitation, and to deal with offences and administrative offences in breach of that law.
For the purposes of this Act:
(a) counterfeit
1. goods, including their packaging, on which, without the consent of the proprietor of the trade mark or of the trade mark, a mark is affixed identical to or interchangeable with a trade mark registered for goods which thereby impair the rights of the proprietor of the trade mark, 6) and all goods bearing the same or similar mark (marks, logos, labels, stickers, leaflets, instructions for use, guarantee documents, etc.), even if they have been presented to the customs office separately without the relevant goods or if the customs office has detected them separately without the relevant goods;
2. the packaging bearing the mark referred to in point 1, even if it has been presented to the customs office separately without the relevant goods or if the customs office has detected it separately without the relevant goods,
3. the form or calibre specially designed or modified for the manufacture of a trade mark which has been forged or goods marked by that mark, or its computer model;
4. goods infringing the rights of the owner or co-owner of the patent or of the copyright holder, 7)
(b) the unauthorised imitation of goods, including their packaging, directly or indirectly manufactured without the consent of the owner or the co-owner of the patent, the holder of the copyright or other right protected by copyright or the holder of the right to a registered industrial design or utility design, or without the consent of the person authorised to manufacture such goods, which is a copy or in which a copy is included, where the acquisition of a copy infringes those rights under a specific legislation, (8) the form or the stamp specifically intended or modified for the manufacture of an illicit imitation, if the use of such form or stamp harms or might harm the rights of the owner under a special legislation;
(c) the holder or co-owner of the patent, the owner of the copyright certificate, the proprietor of the trade mark, the owner of the copyright or another right protected by copyright law or the owner of the right to the registered industrial design or utility model, the representative of the authorised person9) or another authorised person;
(d) in an undisputed case, where the person entitled to the written notice submits to the customs office, within the time limit laid down in Article 11 (3), a written statement showing clearly that the goods covered are counterfeit or pirated and the particulars contained in the statement are accurate, complete, valid and true.
This law shall not apply to goods which:
(a) be marked with a trade mark with the consent of the proprietor of that trade mark, is protected by a patent, copyright or related copyright law or law relating to a registered industrial design or utility model, is manufactured with the consent of the proprietor of that right, but is designed or placed under one of the customs procedures referred to in Article 1 (1) or is applied for re-export, or is placed in a free zone or free warehouse,
(b) it is manufactured or labelled under conditions other than those agreed with the proprietor of the right in question;
(c) is not of a commercial nature, imported by travellers and duty-free. 10)
APPLICATION FOR ACCEPTANCE OF THE MEASURES BY THE CUSTOMS AUTHORITY
Application
(1) The authorised person may request in writing that the customs office in whose territory the goods are in one of the situations referred to in Article 1 (1) take measures to prevent the infringement of his or her right.
(2) The request is to be made to the Hradec Králové Customs Directorate ("the Customs Directorate").
(3) The application contains:
(a) a precise description of the goods enabling them to be identified;
(b) the period within which the action of the customs office (hereinafter referred to as the "measure") is to be implemented;
(c) the identification of the customs office to take action.
(4) The application shall be accompanied by proof that the applicant is an authorised person pursuant to Article 2 (c). Such proof shall be deemed to be:
(a) proof of registration of the right in the relevant register, issued in respect of the rights subject to that registration by an authority provided for by a specific legislation, 12)
(b) proof that it is the owner of the relevant intellectual property right relating to the relevant goods;
(c) a document authorising the exercise of the rights referred to in Article 2 (a) and (b);
(d) the document authorising the application or, where appropriate, the document referred to in points (a) and (b), where the application is submitted by a representative of the authorised person or other authorised person.
(5) In addition to the particulars and documents referred to in paragraphs 3 and 4, the authorised person shall provide the Customs Directorate with further information necessary for the examination of the application, if available. Other information shall include, in particular, particulars of the special characteristics of the protected goods, documents of the customs value or price of the goods, documents of the packaging, documents enabling the identification of counterfeit or illegal imitation from the goods which are protected.
(6) Where an application for an illegal imitation is made, the authorised person shall, in addition to the information referred to in paragraph 3, provide the following information where available:
(a) the place where the goods are located or the place of intended destination;
(b) details of the identity of the consignment or individual packages;
(c) the date of the expected arrival or dispatch of the goods,
(d) the means of transport used to transport the consignment;
(e) particulars of the importer, exporter or holder of the goods.
(7) Applications, documents, information and other information may be submitted electronically if they are also sent to the customs office in writing no later than the following working day.
(8) The application is submitted in the Czech language. If the application is made in a language other than the Czech language, the application must be accompanied by an official translation into the Czech language. This shall also apply to the documents, information and other information referred to in paragraphs 4 to 7.
(1) Where the request complies with the conditions set out in Section 4, the Customs Directorate shall invite the authorised person to lodge within 15 days of the date of receipt of the request an appropriate security (hereinafter referred to as "security") referred to in Section 6 and to pay the flat-rate amount referred to in Section 7. If the Customs Directorate does not comply with the application, it shall inform the applicant in writing, stating the reasons.
(2) Upon fulfilment of the conditions referred to in paragraph 1, the Customs Directorate shall, within a period of 15 days, notify the customs office indicated in the application that it is to take action, including the period during which the measure is to be taken, at the same time as it shall inform the person entitled.
(3) If the beneficiary does not agree to the processing of the application, he shall, within one month of the date of receipt of the refusal or notice referred to in paragraph 1, request the Ministry of Finance (hereinafter referred to as the Ministry) to assess the correctness of the procedure of the Customs Directorate. The Ministry shall assess the correctness of the procedure of the Customs Directorate and communicate the result of its assessment to the authorised person within one month of the date of the request for an assessment.
(4) The authorised person shall inform the Customs Directorate without delay that his or her right is no longer registered or that the duration of the right has expired for another legal reason.
(5) The application referred to in Article 4 and the procedure referred to in paragraphs 1 to 4 shall not be subject to the rules of procedure. 13)
Composition of security to ensure reimbursement of costs and, where applicable, damage
(1) The security to ensure reimbursement of costs and, where applicable, damage shall be used to ensure:
(a) the damage caused by persons to whom the customs office has taken action if it has annulled the decision to secure the goods for the reasons set out in Article 13 (1) or if it has subsequently been shown that the goods so secured are not counterfeit or pirated;
(b) reimbursement of costs incurred by the customs office in accordance with Article 7 (1).
(2) The security is fixed at a flat-rate amount of CZK 100,000.
(3) The security referred to in paragraph 1 may be lodged:
(a) bank guarantee, 14)
(b) by deposit of cash on behalf of the Customs Directorate; The submission of a check guaranteed by the bank shall be considered equivalent to the composition of the cash.
Compensation
(1) Where the customs office has taken action in connection with the application and has then annulled the decision to secure the goods or, where appropriate, to suspend the customs procedure for the reasons referred to in Article 13 (1), or if it has subsequently been established that the goods in question are not counterfeit or pirated, the authorised person shall be obliged to reimburse the costs incurred by the customs office for having the goods under customs control.
(2) A flat-rate amount of CZK 1,500 is paid for the adoption of the measure. The flat-rate amount shall consist of the costs incurred by the Customs Directorate for processing the application.
(3) Where it has been established that the goods in question are counterfeit or pirated, they shall be required to pay the costs on importation of the importer, on export or re-export of the exporter and in other cases the person for whom such goods have been found.
(4) The Customs Directorate will decide on the level of reimbursement of costs. The reimbursement shall be payable within 30 days of the date of receipt of the decision.
(5) Where the reasons for lodging the security referred to in Article 6 are omitted, the customs office shall charge the use of the security if any and shall release the remaining amount. Compound cash shall preferably be used to pay the costs referred to in Article 6 (1) (b).
(6) The provisions of paragraphs 1 to 5 shall apply mutatis mutandis when processing an application for an extension of the period within which action is to be taken by the customs office.
Compensation
(1) Where the customs office has taken action in connection with the application and has then annulled the decision to secure the goods for the reasons set out in Paragraph 13 (1), or where it has subsequently been established that the goods in question are not counterfeit or pirated, the authorised person shall be obliged to make good the damage caused to the owner, importer, exporter, consignee or consignor of the goods resulting from the securing of the goods.
(2) The provisions of the Civil Code shall apply mutatis mutandis to the application of compensation. 15)
WITHDRAWAL OF THE PROFESSIONAL OR NON-IMPORTED SUPPLIES IN IMPLEMENTATION OF CUSTOMS SUPERVISORY AND CUSTOMS CONTROL
(1) If the customs office finds that:
(a) customs control of goods transported across national borders, 16)
(b) search for goods escaped customs supervision, 17)
(c) customs controls 18) goods placed under one of the suspensive arrangements; or
(d) control of goods placed in a free zone or free warehouse (19)
at a time when the request for action has not yet been made or the Customs Directorate has not indicated that the measure may be taken, goods which can reasonably be considered to be counterfeit or pirated, it shall take a decision to secure the goods and inform the Customs Directorate without undue delay. At the same time, the customs office shall, if it is aware of it, communicate to the authorised person the facts found concerning a possible infringement of its right in order to be able to submit a request for action pursuant to Article 4. It shall likewise proceed when the goods are presented to the customs office by another authority under a special legislation. 19a)
(2) Where the customs office finds that a customs declaration has been verified, 20) carried out at a time when the application for action has not yet been lodged or the customs office has not indicated that the measure may be taken, it shall, without undue delay, inform the customs office of destination of the goods which may reasonably be considered as counterfeit or pirated. At the same time, the customs office shall, if it is aware of it, communicate to the authorised person the facts found concerning a possible infringement of its right in order to be able to submit a request for action pursuant to Article 4.
(3) The customs office may provide the goods referred to in paragraphs 1 and 2, 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 person to whom the goods have been secured may appeal the decision to secure the goods within 15 days of the date of service.
(4) The decision to secure the goods shall state the reasons for the provision of the goods and the information on the rights and obligations of the person to whom the decision relates. The customs office may retain the goods which may be secured and require the person not to use, dispose of or dispose of them otherwise.
(5) 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. An official record shall be made of the issue or withdrawal of the goods secured, including a description of the goods. The customs office of departure shall issue a certificate of issue or withdrawal to the person who issued the goods.
(6) Where the goods secured are no longer required for further proceedings and are not considered to be forfeited or prevented from being committed in an infringement or administrative offence or destruction pursuant to Paragraph 14, they shall be returned to the person who was secured.
(7) Where the right to secure goods is exercised by a person other than the one who has secured the goods and the customs office has doubts as to whether the goods belong to that person or whether the customs office has doubts as to whether the goods belong to the person who has secured the goods, the customs office shall not issue the goods and refer those persons to claim their claim in court proceedings.
Where, in the cases referred to in § 9 (1) and (2), the person entitled does not submit the application referred to in § 4 within 3 working days of the date of receipt of the freezing notice, his right shall cease and the customs office shall revoke the decision to secure the goods issued under this Act.
CONDITIONS FOR ACCEPTANCE BY THE CUSTOMS AUTHORITY
(1) Where the customs office to which the customs office of departure has informed that action may be taken, after dealing with an authorised person where appropriate, that goods are in one of the situations referred to in paragraph 1 (1), which corresponds to the description of the counterfeit or pirated goods referred to in the communication, it shall suspend the customs procedure already initiated for placing the goods under the proposed customs procedure or for re-export for 10 working days, and inform the Customs Directorate thereof without undue delay. In order to facilitate further management, the customs office shall be authorised to take samples of the goods secured and to take documentation.
(2) Where the customs office finds, in carrying out the customs supervision and control referred to in paragraphs 1 and 2, that the authorised person has made an application pursuant to paragraph 4 and the customs office has informed the customs office that it may take action, the customs office shall inform the customs office without undue delay; The provisions of paragraph 1 on sampling and documentation shall apply mutatis mutandis.
(3) The customs office which has taken the measures provided for in paragraph 1 or 2 shall notify the person entitled without undue delay in order to exercise the protection of his right. At the written invitation of the customs office, the authorised person shall submit a written statement to the customs office within 3 days of the date of receipt of the notification of securing the goods, indicating clearly that the goods covered are counterfeit or pirated, confirming that the particulars contained therein are accurate, complete, valid and true; where written observations are submitted in a language other than the Czech language, it shall be accompanied by an official translation into the Czech language. The customs office shall inform the authorised person, at his written request, of the name, surname and address of the place of permanent residence or of the name or business name and registered office of the declarant and, if known, of the name, surname and address of the place of permanent residence or of the name or business name and registered office of the consignee in order to exercise the protection of his right.
(4) The authorised person shall inform the customs office within 10 working days of the date on which it was informed by the customs office that the goods had been secured or, where appropriate, that the customs procedure had been suspended if the court ordered the interim measure, or if the court brought proceedings in a case leading to the judgment of the court were brought to the attention of a forgery or an illegal impersonation. The information shall be made in writing or orally into the Protocol. It may also be done by telex, telex, fax or electronic means, provided that it is completed in writing or orally in writing within 3 days at the latest.
(5) The customs office will authorise the authorised person and persons whose rights are affected by the measure to examine the goods covered.
(6) Paragraph 9 (3) to (7) on the freezing of goods applies mutatis mutandis.
Prohibition of release of goods
(1) Where a final court or customs office has decided that the goods are counterfeit or pirated, the customs office may not release them for free circulation, for export, for re-export, for a suspensive procedure or for placing in a free zone or free warehouse, the customs office may issue a decision pursuant to special legislation (21) and dispose of them under that law.
(2) The provisions of paragraph 1 shall apply mutatis mutandis in cases where the customs office has acted in accordance with Article 9 (1) and (2), the customs office has been informed by the customs office that it is to take action and that the court or customs office has ruled that it is a counterfeit or an illegal imitation.
Repeal of the decision to secure the goods or to suspend the customs procedure
(1) Where the beneficiary has not informed the competent customs office pursuant to Article 11 (4) that:
(a) the court has ordered interim measures; or
(b) a procedure has been brought before the court to determine that it is a forgery or an illegal imitation;
the customs office shall revoke the decision to secure the goods, continue the customs procedure and may place the goods under the proposed customs procedure, re-export or authorise their placing in a free zone or free warehouse provided that all the conditions laid down in the customs legislation have been fulfilled. For reasons of due consideration, the customs office may, at the written request of the authorised person, extend the period for a further 10 working days.
(2) Where goods are deemed to be prejudicial to the right of the patent, the right to trade mark or registered industrial design or utility model, the owner, importer, exporter, consignee or consignor of the goods may request the customs office to revoke the decision to secure those goods, or, where appropriate, the decision to suspend the customs procedure and the goods may be placed under the proposed customs procedure, re-export or be authorised to place them in a free zone or free warehouse, provided that the owner, importer, exporter, consignee or consignor has lodged a security and provided that:
(a) all the conditions laid down in the customs legislation are fulfilled,
(b) within the time limit referred to in paragraph 1, the beneficiary has notified the customs office of initiation of proceedings in respect of a case leading to a judgment by the court that it is a forgery or an illegal imitation;
(c) no decision on the interim measure has been taken within the period referred to in paragraph 1.
(3) No appeal shall be made against a decision which has been annulled pursuant to paragraphs 1 and 2 in respect of a decision to secure the goods or to suspend the customs procedure.
(4) The security lodged pursuant to paragraph 2 must be sufficient to protect the person entitled against the infringement of his right. The lodging of a security shall be without prejudice to the right of the person entitled to use other legal means which he may exercise to protect his or her rights. The security lodged shall be released where the owner, importer, exporter, consignee or consignor has not brought an action for the protection of his rights within 20 working days of the date on which he was informed of the interruption of the customs procedure or of the securing of the goods.
(5) Where the customs office has extended the period referred to in paragraph 1, the customs office may, at the request of the owner, importer, exporter, consignee or consignor, extend the period referred to in paragraph 4 to a maximum of 30 working days.
(6) The provisions on temporary storage under specific legislation shall apply mutatis mutandis to the storage of the goods in question at the time of the interruption of the customs procedure or when such goods are secured. 22)
(7) The lodging of a security may be granted:
(a) bank guarantee, 14)
(b) by deposit of cash on behalf of the customs office; The submission of a check guaranteed by the bank shall be considered equivalent to the composition of the cash.
Destruction of counterfeit or illegal imitation
(1) Where a final court or customs office has decided that this is a forgery or an illegal impersonation, the owner or holder of the forgery or an illegal impersonation himself has not destroyed 23) and the decision has not been taken to forfeit or prevent such goods, the customs office shall, on the application of the authorised person or on its own initiative, impose on the owner or holder of the forgery or illegal impersonation:
(a) destroy such goods within a period to be determined by the customs office, under customs control at its expense; or
(b) exclude such goods from trading in order not to harm the rights of the authorised person without any claim for compensation.
This shall be without prejudice to other legal means which the beneficiary may exercise to protect his rights.
(2) Counterfeit and illegal imitation may be left to the State provided that no costs are incurred by the State. In that case, the provisions of paragraph 1 (a) shall apply.
(3) If the customs office is not known or not detected, the owner or holder of the counterfeit or pirated goods shall ensure that they are destroyed. The customs office shall make an official record of the destruction of counterfeit or pirated goods.
(4) Where the owner or the holder of a counterfeit or an illegal imitation fails to fulfil the obligation imposed by a decision pursuant to paragraph 1, the customs office shall be entitled to take a decision to withdraw and destroy the goods concerned at the expense of the owner or holder. The costs of removal and destruction shall be payable within 30 days of the date of service of the decision of the customs office by which they were prescribed.
(5) A measure aimed at removing a counterfeit or an illegal imitation from trading as referred to in paragraph 1 (b) shall not be considered as:
(a) re-export of counterfeit or pirated goods in the unaltered state;
(b) simple removal of trade marks by which counterfeit goods are wrongly marked, except in exceptional cases;
(c) the allocation of another customs-approved treatment or use to the goods concerned.
(6) For the exceptional case of the removal of marks referred to in paragraph 5 (a). (b) the simple removal of trade marks, with the consent of the authorised person, shall be considered if the trade mark has been affixed to goods of a class other than those for which the trade mark was registered. Trademarks shall be removed and destroyed at the expense of the owner or holder of the forgery.
(7) In addition to the information referred to in Article 11 (3), the customs office shall, at its written request, communicate to the authorised person the names and addresses of the consignor, importer or exporter and the manufacturer of the goods which are recognised as counterfeit or pirated, as well as the quantities of counterfeit or pirated counterfeit goods.
TRANSITIONS AND ADMINISTRATIVE DEBRES
This law violates those who
(a) declare the release for free circulation or the export procedure of counterfeit or pirated goods;
(b) in breach of customs legislation, have the release for free circulation, the export or re-export procedure or one of the suspensive arrangements, or their placing in a free zone or free warehouse;
(c) has made an application for the release of counterfeit or pirated goods for re-export or has requested their placing in a free zone or free warehouse;
(d) imported or exported counterfeit or pirated;
(e) own, hold, store or sell counterfeit or illegal imitation in the Czech Republic;
(f) has not complied with the conditions for the disposal of goods secured under this Act.
Transfers
Transfers
(1) The transfer shall be committed by a natural person, not by an entrepreneur who, even out of negligence, has infringed the law in one of the ways set out in Section 15.
(2) The following penalties may be imposed for an offence:
(a) fine,
(b) forfeiture of goods.
(3) Transfers under this law shall be dealt with by the customs authorities.
(4) A fine of up to CZK 100,000 may be imposed for the offence referred to in § 15 (a) to (e). A fine of up to CZK 50,000 may be imposed for the offence referred to in § 15 (f).
(5) The fine is the revenue of the State budget.
(1) The penalty for the offence referred to in Article 15 (a) to (e) may be imposed within one year of the date on which the customs office became aware that it was a forgery or an illegal imitation, but no later than six years after the date on which the infringement or non-compliance took place.
(2) The penalty for the offence referred to in Article 15 (f) may be imposed within one year of the date on which the customs office became aware of the breach of the conditions for goods secured under this law, but no later than six years after the date on which the infringement occurred.
Validity of the fine
The fine imposed for an offence under this law shall be payable within 30 days of the date on which the decision by which it was imposed took effect.
Wasting of goods
(1) In addition to the fine or separately, 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 the goods cannot be imposed if its value is in a noticeable disproportion to the nature and gravity of the offence.
(3) The owner of the goods forfeited becomes the owner.
(4) The forfeiture of goods may be imposed only within the time limits set out in Section 17.
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) the perpetrator is not or is not wholly responsible for the offence; or
(c) the offender is unknown
and where the safety of persons or property or other general interest so requires.
(2) Goods may not be prevented if 6 years have elapsed since the offence.
Local jurisdiction
The offence shall be dealt with by the customs office in whose territory the offence has been detected, even if it has been committed in the territory of another customs office.
(1) In a decision rejecting an appeal against a decision imposing a penalty for an offence under this law, the appeal authority shall also state in the notice the period within which the court may bring an action for review of that decision.
(2) Save as otherwise provided for in this law, the general rules on infringements apply to infringements and to their proceedings. 24)
Administrative offences
Administrative offence
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Regulation Information
| Citation | Full version of Act No. 459 / 2002 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 | 01.11.2002 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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