- PART ONE MEASURES CONCERNING ENTRY, EXPORT AND REEXPORT OF GOODS INFRINGING SOME INTELLECTUAL PROPERTY RIGHTS
- Chapter I: Subject Matter of the Act
- Chapter II: Submission of a Request Asking a Customs Office to Take Measures
- Submission of the Application
- Deposition of a Security to Ensure the Compensation of Costs and Potential Damage
- Compensation of Costs
- Damage Compensation
Act No. 191/1999 Coll., Laying Down Measures Concerning Entry, Export and Re-export of Goods Infringing Some Intellectual Property Rights and on Amendments of Some Other Acts Arising from Amendments Made by the Act No. 121/2002 Coll., Act No. 260/2002 Coll. and by Act No. 459/2002
TABLE OF CONTENTS
Page
Part I: Measures Concerning Entry, Export and Re-Export of Goods Infringing Some Intellectual Property Rights.... 2
Chapter I: Subject Matter of the Act.............................................. 2
Section 1: [Without Title].............................................................. 2 Section 2: [Without Title].............................................................. 3 Section 3: [Without Title].............................................................. 4 Chapter II: Submission of a Request Asking a Customs Office to Take Measures.............................................................. 4
Section 4: Submission of the Application...................................... 4 Section 5: [Without Title].............................................................. 5 Section 6: Deposition of a Security to Ensure the Compensation of Costs and Potential Damage..................................... 6 Section 7: Compensation of Costs................................................. 6 Section 8: Damage Compensation................................................. 7 Chapter III: Discovery of Counterfeit or Pirated Goods by Customs Supervision or a Customs Check.................................. 7
Section 9: [Without Title].............................................................. 7 Section 10: [Without Title].............................................................. 9 Chapter IV: Requirements Governing the Adoption of Measures by Customs Offices....................................................... 9
Section 11: [Without Title].............................................................. 9 Section 12: Prohibition to Release of Goods.................................... 10 Section 13: Cancellation of a Ruling to Withhold Goods or to Suspend Customs Proceedings...................................... 10 Section 14: Destruction of a Counterfeit or Pirated Goods.............. 12 Chapter V: Petty Offences and Administrative Torts...................... 13
Section 15: [Without Title].............................................................. 13 Part I: Petty Offences............................................................... 13
Section 16: Petty Offences............................................................... 13 Section 17: [Without Title].............................................................. 14 Section 18: Playability of Fines....................................................... 14 Section 19: Forfeiture of Goods....................................................... 14 Section 20: Confiscation of Goods.................................................. 14 Section 21: Jurisdiction.................................................................... 15 Section 22: [Without Title].............................................................. 15 Part II: Administrative Torts..................................................... 15
Section 23: Administrative Tort....................................................... 15 Section 24: Sanctions....................................................................... 15 Section 25: [Without Title].............................................................. 16 Section 26: Playability of Fines....................................................... 16 Section 27: Forfeiture of Goods....................................................... 16 Section 28: Confiscation of Goods.................................................. 17 Section 29: Jurisdiction.................................................................... 17 Section 29a: [Without Title].............................................................. 17
Chapter VI: Indemnification............................................................. 17
Section 30: [Without Title].............................................................. 17 Chapter VII: Common and Interim Provisions................................... 17
Section 31: [Without Title].............................................................. 17 Section 32: [Without Title].............................................................. 18 Section 33: [Without Title] ............................................................. 18 Section 34: [Without Title].............................................................. 18 Section 35: [Without Title].............................................................. 18 Section 36: [Without Title].............................................................. 18 Section 37-40: [Deleted]....................................................................... 18 Section 41: [Without Title].............................................................. 18
Part VI: Effect............................................................................. 18
THE PRIME MINISTER
hereby promulgates a full wording of Act No. 191/1999 Coll., laying down measures concerning entry, export and re-export of goods infringing some intellectual property rights and on amendments of some other acts arising from amendments made by the Act No 121/2002 Coll. and by Act No. 260/2002 Coll.
Act 459/2002 laying down measures concerning entry, export and re-export of goods infringing some intellectual property rights
The Parliament has hereby enacted the following Act of the Czech Republic: PART ONE MEASURES CONCERNING ENTRY, EXPORT AND RE-EXPORT OF GOODS INFRINGING SOME INTELLECTUAL PROPERTY RIGHTS
1. The present Act stipulates circumstances and conditions under which a Customs office adopts a measure in the event it harbors a well-founded suspicion that goods which have been
(a) proposed for release under the free circulation procedure 1 , the export procedure 2 , or in respect whereof a re-export application has been submitted 3 , or
(b) identified in the course of Customs supervision or a Customs check, released under any of the suspensive procedures 4 , or placed in a free Customs zone or a free Customs warehouse 5 ,
are counterfeit or pirated goods.
(2) Insofar as indisputable cases dealt with in petty offence or administrative tort proceedings as provided for herein are concerned, the present Act also stipulates powers of Customs offices to recognize the goods in question as counterfeit or pirated goods, order goods which a Customs office or a court has declared to be counterfeit or pirated goods destroyed or rendered useless, and deal with petty offences or administrative torts in case of a violation of the present Act.
2. For the purpose of the present Act, the term
(a) “counterfeit goods” as used herein shall denote
1. goods, including packages thereof, which bear a designation which is either the same as, or can be mistaken for, a trademark registered for other goods without a consent of the owner of such a trademark or a generally known trademark, thus infringing the trademark owner’s rights 6 , and all articles bearing the same or similar designation (labels, stickers, logos, tags, promotional leaflets, operating instructions, warranty documents etc.), even if submitted to a Customs office separately, i.e. without the goods in question, or if a Custooffice detects or discovers them separately, i.e. without the goods in que
2. packages bearing a designation referred to in Paragraph 1 above, even if submitted to a Customs office separately, i.e. without the goods in question, or if a Customs office detects or discovers them separately, i.e. without the goods in question,
3. any moulds or dies specifically designed or adapted to produce counterfeit trademarks, or goods bearing such trademarks, or computer models of such trademarks,
4. goods infringing rights of a patent owner or co-owner or rights of an Authorship Certificate owner 7 ,
(b) “pirated goods” as used herein shall denote goods, including packages thereof, directly or indirectly manufactured without a consent of the owner or co-owner of a patent, of an Authorship Certificate, of a copyright or another right protected under the Copyright Act, or of a right pertaining to a registered industrial design or utility design, or without a consent of the person authorized to manufacture such goods, which are either copies per se, or which include such copies, if making such copies infringes these rights pursuant to a special legal act 8 , moulds or dies specifically designed or adapted to produce pirated goods, if the use of such a mould or die infringes or may infringe the owner’s rights pursuant to the special legal act referred to above,
(c) “an authorized person” as used herein shall denote the owner or co-owner of a patent, of an Authorship Certificate, of a copyright or another right protected under the Copyright Act, or of a right pertaining to a registered industrial design or utility design, representatives or authorized persons 9 , or other authorized persons,
(d) “an indisputable case” as used herein shall denote any case in which an authorized person, invited to do so in writing, submits to the Customs office, within a period of time stipulated in Section 11, Paragraph 3, of the present Act, a written statement clearly indicating that detained goods are counterfeit or pirated goods and the information provided in such a statement is accurate, complete, valid and true.
3. The present Act shall not apply to goods
(a) which are designated by a trademark with a consent of the trademark’s owner, protected under a patent, by a copyright or a similar right, or a right related to a registered industrial or utility design, are manufactured with a consent of the owner of such a right, but are proposed for a release or placed under any of the Customs procedures referred to in Section 1, Paragraph 1, without a consent of the owner of the right, or in respect whereof a re-export application has been submitted, or are being placed into a free Customs zone or a free Customs warehouse,
(b) are manufactured or designated by a trademark under conditions different from those agreed with the owner of the right in question,
(c) are not of a commercial nature, are imported by a traveller, and are relieved from the import duty 10 .
4.—(1) An authorised person may submit a written request asking the Customs office in the territorial jurisdiction of which goods in any of the situations described in Section 1, Paragraph 1, are found to take measures preventing its rights from being infringed upon,
(2) The request provided for in Paragraph 1 above shall be submitted to the Customs Directorate in Hradec Králové (hereinafter “the Customs Directorate”).
(3) The request provided for in Paragraph 1 above shall contain the following particulars:
(a) a detailed description of the goods in question, allowing them to be identified,
(b) a period of time, or deadline, in which the measure of the Customs Directorate (hereinafter “the measure”) is to be implemented,
(c) the identification of the Customs office which is to implement the measure.
(4) Attached to the request shall be a document proving that the applicant is an authorized person, as defined in Section 2, Paragraph (c). Eligible as such documents shall be:
(a) a document proving an entry of the right in question into an appropriate register, which, insofar as such rights are concerned, is issued by an authority appointed by a special legal regulation 11 ,
(b) a document proving that the applicant is indeed the owner of the intellectual property right in question, related to the goods in question,
(c) a document granting the right to make use of the rights referred to in Section 2, Paragraphs (a) and (b),
(d) a document authorizing the applicant to submit the request or a document referred to in Paragraphs (a) or (b) above, if a representative of the authorized person or another authorized person submits the request.
(5) In addition to the information and documents referred to in Paragraphs 3 and 4, the authorized person shall provide to the Customs Directorate any additional information needed to evaluate and handle the request, if they are available to that. The term “additional information” as used herein shall denote, in particular, any special properties of the protected goods, documents indicating the Customs value or price of the goods in question, documents on their package, or documents permitting to distinguish counterfeit or pirated goods from the protected goods.
(6) If the request concerns pirated goods, the authorized person shall also provide, in addition to the information referred to in Paragraph 3, the following information, if such information is at its disposal:
(a) the place where the goods in question are found, or their presumed destination,
(b) information concerning the identity of the consignment or individual packages,
(c) the presumed date of arrival or dispatch of the goods in question,
(d) means of transport used to carry the consignment,
(e) information concerning the importer, exporter or holder of the goods in question.
(7) The request, documents, information and additional data may be submitted electronically, providing that they will also be sent to the Customs office in writing not later than on the next business day.
(8) The request shall be submitted in Czech. If the request is submitted in a language other than Czech, an official translation into Czech shall be enclosed therewith. The above provision shall also apply to the documents, information and additional data referred to in Paragraphs 4 to 7.
5.—(1) If the request meets the conditions and requirements stipulated in Section 4, the Customs Directorate shall invite the authorized person to deposit, within 15 days from the day the invitation is served, an adequate security (hereinafter “the security”) referred to in Section 6 and to pay a lump sum referred to in Section 7. If the Customs Directorate does not accommodate the request, it shall notify the applicant thereof, stating the reasons.
(2) When the requirements and conditions referred to in Paragraph 1 have been met, the Customs Directorate shall order, within 15 days, the Customs office specified in the request to take the measures, including a period of time for which they are to remain in effect, and also notify the authorized person thereof.
(3) If the authorized person disagrees with how its request has been treated, it shall ask, within one month from the day a rejection notice or an invitation provided for in Paragraph 1 above is served, the Ministry of Finance (hereinafter “the Ministry”) to evaluate and assess whether the approach of the Customs Directorate was correct. The Ministry shall make the assessment and communicate its outcome to the authorized person within one month since the latter asked it to make the assessment.
(4) The authorized person shall immediately notify the Customs Directorate that its right is no longer registered in the relevant register or that it has expired for another legal reason.
(5) The submission of a request as described in Section 4 and the procedure outlined in Paragraphs 1 to 4 above shall not be governed by the Code of Administrative Procedure 12 .
6.—(1) A security ensuring the compensation of costs and potential damage shall be used to reimburse
(a) damage inflicted upon persons or persons in respect whereof a Customs office took a measure, if it later cancelled its decision to withhold the goods for any of the reasons set forth in Section 13, Paragraph 1, or if was subsequently proven that the withheld goods were not counterfeit or pirated goods,
(b)
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Part VI: Effect............................................................................. 18
THE PRIME MINISTER
hereby promulgates a full wording of Act No. 191/1999 Coll., laying down measures concerning entry, export and re-export of goods infringing some intellectual property rights and on amendments of some other acts arising from amendments made by the Act No 121/2002 Coll. and by Act No. 260/2002 Coll.
Act 459/2002 laying down measures concerning entry, export and re-export of goods infringing some intellectual property rights
The Parliament has hereby enacted the following Act of the Czech Republic: 1. The present Act stipulates circumstances and conditions under which a Customs office adopts a measure in the event it harbors a well-founded suspicion that goods which have been
(a) proposed for release under the free circulation procedure 1 , the export procedure 2 , or in respect whereof a re-export application has been submitted 3 , or
(b) identified in the course of Customs supervision or a Customs check, released under any of the suspensive procedures 4 , or placed in a free Customs zone or a free Customs warehouse 5 ,
are counterfeit or pirated goods.
(2) Insofar as indisputable cases dealt with in petty offence or administrative tort proceedings as provided for herein are concerned, the present Act also stipulates powers of Customs offices to recognize the goods in question as counterfeit or pirated goods, order goods which a Customs office or a court has declared to be counterfeit or pirated goods destroyed or rendered useless, and deal with petty offences or administrative torts in case of a violation of the present Act.
2. For the purpose of the present Act, the term
(a) “counterfeit goods” as used herein shall denote
1. goods, including packages thereof, which bear a designation which is either the same as, or can be mistaken for, a trademark registered for other goods without a consent of the owner of such a trademark or a generally known trademark, thus infringing the trademark owner’s rights 6 , and all articles bearing the same or similar designation (labels, stickers, logos, tags, promotional leaflets, operating instructions, warranty documents etc.), even if submitted to a Customs office separately, i.e. without the goods in question, or if a Custooffice detects or discovers them separately, i.e. without the goods in que
2. packages bearing a designation referred to in Paragraph 1 above, even if submitted to a Customs office separately, i.e. without the goods in question, or if a Customs office detects or discovers them separately, i.e. without the goods in question,
3. any moulds or dies specifically designed or adapted to produce counterfeit trademarks, or goods bearing such trademarks, or computer models of such trademarks,
4. goods infringing rights of a patent owner or co-owner or rights of an Authorship Certificate owner 7 ,
(b) “pirated goods” as used herein shall denote goods, including packages thereof, directly or indirectly manufactured without a consent of the owner or co-owner of a patent, of an Authorship Certificate, of a copyright or another right protected under the Copyright Act, or of a right pertaining to a registered industrial design or utility design, or without a consent of the person authorized to manufacture such goods, which are either copies per se, or which include such copies, if making such copies infringes these rights pursuant to a special legal act 8 , moulds or dies specifically designed or adapted to produce pirated goods, if the use of such a mould or die infringes or may infringe the owner’s rights pursuant to the special legal act referred to above,
(c) “an authorized person” as used herein shall denote the owner or co-owner of a patent, of an Authorship Certificate, of a copyright or another right protected under the Copyright Act, or of a right pertaining to a registered industrial design or utility design, representatives or authorized persons 9 , or other authorized persons,
(d) “an indisputable case” as used herein shall denote any case in which an authorized person, invited to do so in writing, submits to the Customs office, within a period of time stipulated in Section 11, Paragraph 3, of the present Act, a written statement clearly indicating that detained goods are counterfeit or pirated goods and the information provided in such a statement is accurate, complete, valid and true.
3. The present Act shall not apply to goods
(a) which are designated by a trademark with a consent of the trademark’s owner, protected under a patent, by a copyright or a similar right, or a right related to a registered industrial or utility design, are manufactured with a consent of the owner of such a right, but are proposed for a release or placed under any of the Customs procedures referred to in Section 1, Paragraph 1, without a consent of the owner of the right, or in respect whereof a re-export application has been submitted, or are being placed into a free Customs zone or a free Customs warehouse,
(b) are manufactured or designated by a trademark under conditions different from those agreed with the owner of the right in question,
(c) are not of a commercial nature, are imported by a traveller, and are relieved from the import duty 10 .
4.—(1) An authorised person may submit a written request asking the Customs office in the territorial jurisdiction of which goods in any of the situations described in Section 1, Paragraph 1, are found to take measures preventing its rights from being infringed upon,
(2) The request provided for in Paragraph 1 above shall be submitted to the Customs Directorate in Hradec Králové (hereinafter “the Customs Directorate”).
(3) The request provided for in Paragraph 1 above shall contain the following particulars:
(a) a detailed description of the goods in question, allowing them to be identified,
(b) a period of time, or deadline, in which the measure of the Customs Directorate (hereinafter “the measure”) is to be implemented,
(c) the identification of the Customs office which is to implement the measure.
(4) Attached to the request shall be a document proving that the applicant is an authorized person, as defined in Section 2, Paragraph (c). Eligible as such documents shall be:
(a) a document proving an entry of the right in question into an appropriate register, which, insofar as such rights are concerned, is issued by an authority appointed by a special legal regulation 11 ,
(b) a document proving that the applicant is indeed the owner of the intellectual property right in question, related to the goods in question,
(c) a document granting the right to make use of the rights referred to in Section 2, Paragraphs (a) and (b),
(d) a document authorizing the applicant to submit the request or a document referred to in Paragraphs (a) or (b) above, if a representative of the authorized person or another authorized person submits the request.
(5) In addition to the information and documents referred to in Paragraphs 3 and 4, the authorized person shall provide to the Customs Directorate any additional information needed to evaluate and handle the request, if they are available to that. The term “additional information” as used herein shall denote, in particular, any special properties of the protected goods, documents indicating the Customs value or price of the goods in question, documents on their package, or documents permitting to distinguish counterfeit or pirated goods from the protected goods.
(6) If the request concerns pirated goods, the authorized person shall also provide, in addition to the information referred to in Paragraph 3, the following information, if such information is at its disposal:
(a) the place where the goods in question are found, or their presumed destination,
(b) information concerning the identity of the consignment or individual packages,
(c) the presumed date of arrival or dispatch of the goods in question,
(d) means of transport used to carry the consignment,
(e) information concerning the importer, exporter or holder of the goods in question.
(7) The request, documents, information and additional data may be submitted electronically, providing that they will also be sent to the Customs office in writing not later than on the next business day.
(8) The request shall be submitted in Czech. If the request is submitted in a language other than Czech, an official translation into Czech shall be enclosed therewith. The above provision shall also apply to the documents, information and additional data referred to in Paragraphs 4 to 7.
5.—(1) If the request meets the conditions and requirements stipulated in Section 4, the Customs Directorate shall invite the authorized person to deposit, within 15 days from the day the invitation is served, an adequate security (hereinafter “the security”) referred to in Section 6 and to pay a lump sum referred to in Section 7. If the Customs Directorate does not accommodate the request, it shall notify the applicant thereof, stating the reasons.
(2) When the requirements and conditions referred to in Paragraph 1 have been met, the Customs Directorate shall order, within 15 days, the Customs office specified in the request to take the measures, including a period of time for which they are to remain in effect, and also notify the authorized person thereof.
(3) If the authorized person disagrees with how its request has been treated, it shall ask, within one month from the day a rejection notice or an invitation provided for in Paragraph 1 above is served, the Ministry of Finance (hereinafter “the Ministry”) to evaluate and assess whether the approach of the Customs Directorate was correct. The Ministry shall make the assessment and communicate its outcome to the authorized person within one month since the latter asked it to make the assessment.
(4) The authorized person shall immediately notify the Customs Directorate that its right is no longer registered in the relevant register or that it has expired for another legal reason.
(5) The submission of a request as described in Section 4 and the procedure outlined in Paragraphs 1 to 4 above shall not be governed by the Code of Administrative Procedure 12 .
6.—(1) A security ensuring the compensation of costs and potential damage shall be used to reimburse
(a) damage inflicted upon persons or persons in respect whereof a Customs office took a measure, if it later cancelled its decision to withhold the goods for any of the reasons set forth in Section 13, Paragraph 1, or if was subsequently proven that the withheld goods were not counterfeit or pirated goods,
(b) PART ONE MEASURES CONCERNING ENTRY, EXPORT AND RE-EXPORT OF GOODS INFRINGING SOME INTELLECTUAL PROPERTY RIGHTS