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ACT No. 19111999 ColI. of July 29, 1999,
on measures concerning entry, export and re-export of goods infringing certain intellectual property rights, and amending some other acts
The Parliament has hereby passed the following Act ofthe Czech Republic:
PART ONE
MEASURES CONCERNING IMPORT, EXPORT AND RE-EXPORT OF GOODS INFRINGING CERTAIN INTELLECTUAL PROPERTY RIGHTS
SUBJECT MATTER OF THE ACT
Article 1
Article 2
For the purpose ofthe present Act, the term
(a) "counterfeit goods" shall denote
1 Articles 128 to 132 of Act No. 13/1993 ColI. (Customs Act), as amended by Act No. 11311997 ColI. 2 Articles 214 to 216 of Act No. 1311993 ColI. 3 Article 233 of Act No. 13/1993 ColI. 4 Article 133 of Act No. 1311993 ColI. 5 Articles 217 to 232 of Act No. 1311993 ColI.
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I. goods, including their packages, on which a marking which is either the same as, or confusingly similar to, a trademark registered for other goods is placed without the consent of the owner of the trademark or a generally known trademark, thus damaging rights of the trademark owner6, as well as all items and articles carrying the same or similar marking (marks, logos, labels, stickers, promotionalleafiets, instructions for use, warranty documents etc.), including cases when they have been presented to a customs office separately without the goods they belong to, or when a customs office has discovered them separately without the goods they belong to;
Article 3
The present Act shall not apply to goods which
(a) bear a trademark with the consent of its owner, are protected by a patent, a copyright or a right similar to copyright, or a right attached to a registered industrial design or utility design, are manufactured with the consent of the owner of such a right, but which are
6 Act No. 13711995 Coll. (Trademarks Act) 7 Act No. 527/1990 ColI., on inventions, industrial designs, and rationalisation proposals. 8 Act No. 35/1965 ColI., on literary, scientific, and art works (Copyright Act), as amended
by subsequent legislation. Act No. 527/1990 Coll., on inventions, industrial designs, and rationalisation proposals, as amended by Act No. 591/1991 Coll. Act No. 478/1995, on utility designs.
9 Act No. 35/1965 ColI. Act No. 237/1995 Coll., on collective management of copyrights and similar rights, and changing and amending some other legal acts.
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proposed for or placed under any of the procedures listed in Article 1, Paragraph (1), Subparagraph (a), or with respect to which a re-export application has been filed, or are placed in a free customs zone or a free customs warehouse without the consent of the owner of such a right,
SUBMISSION OF AN APPLICATION REQUESTING A MEASURE TO BE TAKEN BY THE CUSTOMS OFFICE
Article 4
d) a certificate of entry of the right or title in question into an appropriate register, which is issued, insofar as rights and titles registered in such a manner are concerned, by an authority defined by a special act12;
10 Articles 46 to 48 of Decree No. 13611998 ColI., on relief of goods from import customs duties.
I I Article 7, Paragraph 2, of Act No. 13/1993 ColI.
12 For example: Act No. 527/1990 ColI., on inventions, industrial designs, and rationalisation proposals, Act No. 478/1995, on utility designs, Act No. 13711995 ColI. (Trademarks Act).
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e) a document proving its holder to be the owner of an unregistered right or title to an industrial or utility design; f) a document entitling its holder to use the rights defined in Article 2, Subparagraphs (a) or (b);
g) a document entitling its holder to submit the request, or a document specified in Subparagraphs (a) or (b) above, if the request is submitted by an authorised person's representative or another authorised person;
(6) above.
Article 5
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Article 6 Deposition of a Guarantee Providing for a Compensation of Costs and Potential Damages
Article 7 Compensation of Costs
13 Act No. 7111967 ColI. (Administrative Code). 14 Articles 313 to 322 ofthe Business Code.
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person, extends the time for which the measure is to be implemented, the compensation of costs shall be increased to twice the lump sum for each subsequent year. The lump sum shall be stipulated in a decree issued by the Ministry.
Article 8
(1) If a customs office adopts a measure in connection with the request, and subsequently cancels its ruling to withhold the goods for the reasons set forth in Article 13, Paragraph (1), or if it is later proven that the withheld goods are neither counterfeit goods nor pirated goods, the authorised person shall be obliged to compensate the damage inflicted as a result of the apprehension of the goods in question upon their owner, importer, exporter,
. .
consIgnee, or consIgnor.
(2) The damage compensation shall be governed mutatis mutandis by provisions of the Civil Codcl5.
CHAPTER III DISCOVERY OF COUNTERFEIT OR PIRATED GOODS IN THE COURSE OF CUSTOMS SUPERVISION OR A CUSTOMS CHECK IN OTHER CASES
Article 9
(1) If the customs office finds,
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ware ouse "
15 Articles 420 to 425 ofthe Civil Code. 16 Article 80 of Act No. 1311993 ColI. 17 Article 37 of Act No. 13/1993 CoIl. 18 Article 48, Paragraph 1, of Act No. 1311993 ColI. 19 Article 219, Paragraph 4, of Act No. 1311993 ColI.
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at a time when no request for a measure has yet been submitted or when the customs directorate has not yet announced that a measure may be adopted, goods in respect whereof there exists a justified suspicion that they are counterfeit or pirated goods, it shall issue a ruling whereby the goods will be withheld and notify the customs directorate without any unnecessary delay. At the same time, the customs office shall notify the authorised person (if he or she is known to it) of its fmding regarding the potential infringement of his or her rights, so that he/she could submit a request in accordance with Article 4 above.
20 Articles 115 to 122 of Act No. 13/1993 ColI.
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goods in question and it shall advise the persons concerned to refer their respective claims to the court.
Article 10
If, in the cases referred to in Article 9, Paragraphs 1 and 2, the authorised person fails to submit a request provided for in Article 4 above within three workdays from the day he or she is delivered the ruling whereby the goods in question are withheld, his or her right shall be rendered null and void.
CHAPTER IV CONDITIONS OF THE ADOPTION OF A MEASURE BY THE CUSTOMS OFFICE
Article 11
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not later than three days thereafter. If the court ruling is positive the customs office shall inform the authorised person, at his or her request, of the name and address of the declarant and the name ofthe consignee, if it knows them.
Article 12
Article 13
Cancellation of the Ruling Withholding the Goods in Question or Suspending Customs Proceedings
(1) Ifthe authorised person fails to notify the customs office within ten workdays from being notified of the apprehension of goods or of the suspension of customs proceedings in accordance with Article 11, Paragraph 3, that
the customs office shall revoke its ruling withholding the goods in question, resume customs proceedings, and may place the goods under the proposed customs procedure, or release them for re-export, or permit their placement in a free customs zone or a free customs warehouse provided that all conditions set forth in customs regulations having been met. For reasons worth considering, the customs office may, at a written request of the authorised person, extend the above deadline by an additional ten workdays.
(2) If there exists with respect to the goods in question a justified cause to believe that they infringe upon a right arising from a patent, trademark, or registered industrial or utility design, the owner, importer, exporter, consignee, or consignor of the goods may ask the customs office to revoke its ruling withholding the goods or suspending customs
2' Article 104, Paragraph 7, of Act No. 1311993 ColI. Page 11
proceedings, whereupon the goods in question may be placed under the proposed customs procedure, or released for re-export, or placed in a free customs zone or a free customs warehouse, if the owner, importer, exporter, consignee, or consignor of the goods has filed a lawsuit to protect his rights and subject to
Article 14
22 Articles 93 to 95 of Act No. 13/1993 ColI.
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23 Article 233 of Act No. 13/1993 ColI.
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and addresses of the consignor, importer, or exporter and producer of the goods that have been recognised as counterfeit or pirated goods, as well as their quantities.
CHAPTER V OFFENCES AND MISDEMEANOURS
Article 15
The present Act shall be deemed violated by anyone who
Part 1 Offences
Article 16
Article 17
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were counterfeit or pirated goods, but not later than six years from the day the violation or the failure to fulfil a duty in question occurred.
(2) A fine for any offence referred to in Article 15, Subparagraph (t), may be levied within one year from the day the customs office learned that conditions applying to goods withheld in accordance with the present Act were violated, but not later than six years from the day the violation in question occurred.
Article 18
Any fine levied for an offence in accordance with the present Act shall be due and payable within thirty days from the day the ruling whereby it has been levied becomes effective and enforceable.
Article 19
(1) In addition to or instead of a fine, the goods belonging to the perpetrator and
may be forfeited.
Article 20
(1) If no forfeiture has been ordered as a sanction for an offence, the customs office shall nevertheless decide to confiscate such goods if
and the safety of persons or property or another matter of public interest requires so.
(2) A ruling in a matter of confiscation of goods cannot be issued if more than six years have elapsed from the offence in question was committed.
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Article 21
An offence shall be dealt with by the customs office in the jurisdictional territory of which it has been discovered, regardless that it may have been committed in the jurisdictional territory of a different customs office.
Article 22
Unless stipulated otherwise herein, offences and proceedings related thereto shall be governed by general offence legislation24 .
Part 2 Misdemeanours
Article 23
Article 24
24 Act No. 20011990 ColI. (Offences Act), as amended by subsequent legislation.
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Article 26
Any fine levied for a misdemeanour shall be due and payable within thirty days from the day the ruling whereby it has been levied becomes effective and enforceable.
Article 27
A sanction consisting in the forfeiture of the goods in question may be imposed upon a perpetrator of a misdemeanour under The conditions set forth in Article 19 above shall apply mutatis mutandis to the imposition of a sanction consisting in forfeiture of goods. The forfeiture of goods may be ordered only in compliance with the deadlines laid down in Article 17 above.
Article 28
25 Act No. 52611990 ColI. (Prices Act), as amended by subsequent legislation.
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Article 29
CHAPTER VI DAMAGE RESPONSIBILITY WAIVER
Article 30
The state shall bear no responsibility whatsoever for any damage incurred by persons in connection with the adoption of measures under the present Act.
CHAPTER VII GENERAL AND TEMPORARY PROVISIONS
Article 31
The customs office shall arrange, at thc cxpense of the perpetrator of an offence or misdemeanour,
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(c) other modifications or changes on forfeited or confiscated counterfeit or pirated goods so that they can be sold without the authorised person's rights being infringed.
Article 32
The costs as per Article 31 above shall become due and payable within thirty days from the delivery of the customs office's ruling stipulating their amount.
Article 33
Article 34
Insofar as matters related to the payment and enforcement of compensations of costs incurred in connection with adopting a measure, costs efficiently and economically spent by customs offices which arise from their duty to keep goods under customs supervision, or costs of confiscation and destruction of goods are concerned, customs offices shall apply mutatis mutandis provisions of regulations dealing with the management and administration of taxes and fees26.
Article 35
Unless stipulated otherwise herein, proceedings before customs authorities shall be governed by
26 Articles 59, 73, and 73a of Act No. 33711992 ColI. 27 Act No. 33711992 Coll., on the management and administration of taxes and fees, as amended by subsequent legislation.
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Article 36
Customs authorities shall continue to adopt measures of customs authorities provided for by a special act28 and adopted at the request of authorised persons submitted before the present Act becomes effective until December 31, 1999, except in cases where the authorised person requests the measure to be taken for a period of time which will have elapsed before that date.
PART TWO CHANGES OF AND AMENDMENTS TO THE COPYRIGHT ACT
Article 37
Act No. 3511965 ColI., on literary, scientific, and art works (Copyright Act), as amended by Act No. 8911990 ColI., Act No. 46811991 ColI., Act No. 31811993 ColI., Act No. 23711995 ColI., and Act No. 8611996 ColI., shall be amended as follows:
PART THREE CHANGES OF AND AMENDMENTS TO THE TRADEMARKS ACT
Article 38
Act No. 13711995 ColI., on trademarks (Trademarks Act), shall be amended as follows:
Paragraph 3 of Article 14 shall be deleted. The existing Paragraph 4 shall be renumbered as Paragraph 3.
PART FOUR CHANGES OF AND AMENDMENTS TO THE PENAL CODE
Article 39
Act No. 14111961 ColI., on criminal law proceedings (Penal Code), as amended by Act No. 5711965 Call., Act No. 5811969 ColI., Act No. 14911969 ColI., Act No. 4811973
28 Article 53aof Act No. 3511965 ColI. Article 14, Paragraph 3, of Act No. 137!1995 ColI.
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ColI., Act No. 2911978 ColI., Act No. 4311980 ColI., Act No. 15911989 ColI., Act No. 17811990 ColI., Act No. 30311990 ColI., Act No. 55811991 ColI., Act No. 11511993 ColI., Act No. 29211993 ColI., Constitutional Court Award No. 21411994 ColI., Award No. 811995 ColI. of the Constitutional Court of the Czech Republic, Act No. 26911994 ColI., Act No. 15211995 ColI., and Act No. 150/1997 ColI. shall be amended as follows:
In Article 12, Paragraph 2, Subparagraph (g), the full stop at the end of the subparagraph shall be replaced by a comma, and three new subparagraphs, (h), (i), and 0), shall be added, which shall read as follows: "(h) an infringement of rights to a trademark, business name, or protected appellation of
origin as per Article 150 of the Penal Code, if the criminal act in question has been
perpetrated in connection with the import, export, or transit of goods,
(i) an infringement of industrial rights as per Article 151 of the Penal Code, if the criminal act in question has been perpetrated in connection with the import, export, or transit of goods,
0) an infringement of a copyright as per Article 152 of the Penal Code, if the criminal act in question has been perpetrated in connection with the import, export, or transit of goods."
PART FOUR
Article 40
In the Act No. 14011961 ColI., Penal Act, as amended by Act No. 12011962 ColI., Act No. 53/1963 ColI., Act No. 5611965 Coll., Act No. 8111966 ColI., Act No. 14811969 ColI., Act No. 45/1973 ColI., Act No. 4311980 ColI., Legal Measure of the Federal Parliament No. 1011989 ColI., Act No. 15911989 ColI., Act No. 159/1989 ColI., Act No. 4711990 ColI., Act No. 84/1990 ColI., Act No. 175/1990 ColI., Act No. 45711990 ColI., Act No. 54511990 ColI., Act No. 490/1991 CoIl., Act No. 55711991 ColI., Finding of the Constitutional Court of the Czech and Slovak Federal Republic of 4 Septembcr 1992 published under 93/1992 ColI., Act No. 29011993 ColI., Act No. 3811994 ColI., Finding of the Constitutional Court of the Czech Republic No. 9111994 CoIl., Act No. 152/1995 CoIl., Act No. 1911997 ColI., Finding of the Constitutional Court of the Czech Republic No. 103/1997 ColI., Act No. 25311997 ColI., Act No. 9211998 ColI., Act No. 11211998 ColI., Act No. 14811998 CoIl., Act No. 16711998 ColI., and Act No. 96/1999 ColI., words "imports, exports or" are inserted behind the word "who" in the Article 150, Paragraph 1.
PART SIX FINAL PROVISIONS
Article 41
The present Act shall take effect on the first day of the third calendar month following its declaration.