Loi n° 358/2004 Coll. du 9 juin 2004, portant promulgation du texte intégral de la Loi n° 191/1999 Coll. du 29 juillet 1999 relative aux mesures concernant l'entrée, l'exportation et la réexportation de marchandises qui portent atteinte à certains droits de propriété intellectuelle, et modifiant d'autres lois, tel qu'il résulte des modifications apportées par la Loi n° 121/2000 Coll., la Loi n° 260/2002 Coll. et la Loi n° 255/2004 Coll. du 13 avril 2004, République tchèque

Legal Force................................................................... 14

THE PRIME MINISTER OF THE GOVERNMENT

promulgates

full wording of Act No. 191/1999 Coll.

on measures concerning import, export and re-export of goods infringing certain intellectual property rights and on amendment to some other laws, as it follows from amendments brought by Act No. 121/2000 Coll., Act No. 260/2002 Coll., and Act No. 255/2004 Coll.

ACT

on measures concerning import, export and re-export of goods infringing certain intellectual property rights

The Parliament has passed the following Act of the Czech Republic:

ART. I

1.—(1) This Act stipulates the conditions, under which the customs office intervenes against persons who own, hold, store or sell goods, whose manufacture or modification infringed intellectual property rights in the customs territory of the European Communities (hereinafter the “Communities”) pursuant to the directly binding legal regulation of the European Communities.1

(2) This Act also stipulates the conditions, under which the customs office is authorized to

(a) detain goods, with respect to which it has justified suspicion that intellectual property rights have been infringed in manufacture or modification thereof;

(b) provide for destruction of goods;

(c) remove goods from trading or other management, with respect to goods that have been recognized by the court as goods, whose manufacture or modification infringed intellectual property rights; or

(d) hear misdemeanors and administrative torts in case of violation of this Act.

2. For the purposes of this Act, the following terms shall have the corresponding meanings:

(a) action by a customs office shall mean acts carried out by the customs office pursuant to this Act;

(b) humanitarian purposes shall mean activities carried out with the objective to provide for basic needs of the people that are in a difficult situation or that have been affected by an extraordinary event, where use of extraordinary material resources is justified.

3. Repealed

4.—(1) The right-holder2 shall submit an application for action by the customs office (hereinafter an “application”) to the Customs Directorate in Hradec Králové (hereinafter the “customs directorate”), which shall make a decision on approving or dismissing the application. In case of approval of an application, the customs directorate shall promptly notify the customs office that is to perform the action and send this decision, as well as a decision on dismissal of an application, to the right-holder.

(2) An application shall be submitted on the prescribed form.3

(3) If the proceedings initiated pursuant to Section 11 are discontinued owing to an act or omission of the right-holder or if it is subsequently found that the relevant goods are not goods, whose manufacture infringed intellectual property rights, or if the right-holder uses information specified in Section 11 (1) for purposes other than lodging a court action for determination pursuant to the Civil Code or to exercise the right pursuant to Section 14 (1), the right-holder shall bear liability towards the persons involved in the action4 and reimburse all the costs connected with maintaining the goods under customs supervision. If it is found pursuant to the first sentence hereof that the relevant goods are goods, whose manufacture infringed intellectual property rights, such costs shall be reimbursed by the importer, in case of import, by the exporter, in case of export or re-export, and by the owner or holder of goods, in other cases. The customs directorate shall send to the right-holder in writing or, if requested by the right-holder, by electronic means, a notice signed pursuant to a special law,5 including specification of the amount that he is obliged to reimburse on the basis of a declaration6 made in writing or by electronic means, with specification of the number of the account, into which the amount is to be paid.

5. to 8. Repealed

9.—(1) The customs office that has detained goods during the performance of customs supervision7 at a time, when an application has not yet been submitted, shall promptly notify the right-holder, if he is known to the authority, in writing or by electronic means, of the established potential infringement of his right so that he can submit an application pursuant to Section 4 and provide him with information that is related exclusively to the actual or expected amount of the goods and their nature. This procedure shall apply to a case where goods are submitted to the customs office by some other body pursuant to the special regulation8 mutatis mutandis.

(2) The customs office may detain goods pursuant to paragraph 1 above held by a person, with whom they were found, without respect to third-party rights. The customs office shall issue a decision on the detention of goods and deliver it to the person holding the detained goods. The person holding the detained goods may lodge an appeal against a decision on the detention of goods within the period of time stipulated in the decision, for which the goods were detained, from the date of delivery.

(3) The customs office may leave the detained goods with the person holding the goods detained through a decision, and order that this person may not use, alienate or otherwise manage these goods. Acts carried out at variance with this prohibition shall be void.

(4) A person, to whom a decision on the detention of goods has been delivered, shall be obliged to submit these goods to the customs office. If the detained goods are not submitted to the customs office on its request, they may be withdrawn from the person, who currently holds the goods. An official protocol shall be drawn up of submitting or withdrawal of goods and this protocol shall be signed by two customs officers and the person, who submitted the goods or from whom the goods were withdrawn, as appropriate, and it shall include specification of the number and description of the goods. The customs office shall deliver to the person, who submitted the goods or from whom the goods were withdrawn, as appropriate, a counterpart of the official protocol.

(5) If a sanction of forfeiture or a protective measure of confiscation of the detained goods cannot be imposed within the proceedings on a misdemeanor or the proceedings on an administrative tort, or if a decision cannot be made on their destruction pursuant to Section 14, the goods shall be returned to the person, from whom they were detained. If another person exercises the right to the detained goods and the customs office has doubts as to whether this person or the person, from whom the goods were detained, is the owner of the goods, it shall propose to these persons that they enforce their claims with the courts within a deadline stipulated by the customs office for this purpose.

10. Repealed

11.—(1) The customs office, to which the customs directorate has delivered a decision on approval of an application and that has detained goods, shall send to the right-holder, on his request, in writing or by electronic means, a notice including the name or names, as appropriate, surname and permanent address, or the name or commercial name and registered office, name or names, as appropriate of a natural person, who operates a business, and permanent address, of the declarant, owner or holder of the goods, and, if known to it, also the name, surname and permanent address, or the name or commercial name and registered office of the consignee and the consignor, as well as information on the origin and provenance of the goods, whose manufacture or modification infringed intellectual property rights, so that he can protect his right.9

(2) The customs office may submit or send the taken samples to the right-holder on his explicit request only for the purposes of analysis and facilitation of further proceedings.10

(3) The right-holder shall be obliged to notify the customs office in writing or by electronic means forthwith of commencement of proceedings on determination whether the goods involved are goods, whose manufacture or modification infringed intellectual property rights.11

12. Repealed

13.—(1) If detained goods are to be stored until their release into the proposed customs procedure,12 the conditions for temporary storage of goods13 shall apply mutatis mutandis.

(2) If a security14 is to be provided, this security may be provided in cash into the account of the customs office or may be replaced by a bank guarantee.15 Submission of a cheque, whose payment is guaranteed by a bank, shall be considered to be provision of cash into the account of the customs office.

14.—(1) If goods, whose manufacture or modification infringed intellectual property rights of the holder, have been detained, the customs office shall make a decision, on request of the owner, of destruction of the goods and provide for the destruction under the supervision of three customs officers. An official protocol shall be drawn up of the destruction, which shall be signed by all three customs officers and which shall also include specification of the amount and description of the goods, without there being any need to further determine, whether an intellectual property right has been actually infringed,16 under the precondition that

(a) the right-holder notifies the customs office in writing or by electronic means within ten working days, or three working days in the case of perishable goods, of receipt of the notification of detention of the goods, that the goods concerned are goods, whose manufacture or modification infringed intellectual property rights, and provide the customs office with an agreement, made in writing or by electronic means, of the declarant,17 the owner or the holder of the goods with destruction of the goods; with the agreement of the customs office, this information may be provided directly to customs office by the declarant, the owner or the holder of the goods in writing or by electronic means. This agreement shall be presumed to be accepted when the declarant, the owner or the holder of the goods has not specifically raised objections against destruction within the prescribed period. This period may be extended by a further ten working days where circumstances warrant it;

(b) samples shall be taken prior to destruction and the customs office shall store these samples so that they can be used as evidence in court proceedings, if appropriate;

(c) destruction shall be carried out at the expense and under the responsibility of the declarant, the owner or the holder of the goods.

(2) If the court makes a final decision that the goods concerned are goods, whose manufacture or modification infringed intellectual property rights,18 or with respect to goods, whose manufacture or modification infringed intellectual property rights and that have been abandoned in favor of the state and that have not been destroyed by the declarant, the owner or the holder himself,19 and if a decision has not been made on forfeiture or confiscation of these goods, the customs office shall provide for destruction of these goods at the expense of the declarant, the owner or the holder of the goods. If the owner or the holder of the goods, whose manufacture or modification infringed intellectual property rights, is not known to the customs office or if his identity is not determined, the customs office shall provide for their destruction at the expense of the right-holder.

(3) If the court makes a final decision that, prior to further management of counterfeit goods,20 it will suffice to remove trademarks from these goods,21 the customs office shall provide for their removal and destruction at the expense of the declarant, the owner or the holder of the goods. If forfeiture or confiscation of the counterfeit goods was imposed in the given case, the customs office shall provide for removal of the trademarks under the conditions specified in paragraph 4 (a) and their destruction pursuant to paragraph 4 (c) hereof.

(4) At the expense of the person, who has committed a misdemeanor or administrative tort, the customs office shall provide

(a) with the consent of the right-holder made in writing or by electronic means, for removal of the trademarks from the forfeited or confiscated counterfeit goods according to the court decision, so that they can be managed in a manner other than their sale;

(b) with the consent of the right-holder made in writing or by electronic means,4 for other modifications to the forfeited or confiscated counterfeit goods, unless this changes the nature of the goods, so that they can be managed in a manner other than their sale;

(c) for destruction of the forfeited or confiscated counterfeit goods, whose manufacture or modification infringed intellectual property rights, of the trademarks removed pursuant to subparagraph (a) above, and of waste and remainders produced in other modifications pursuant to subparagraph (b) above.

(5) If a person, who has violated the Act in one of the manners specified in Sections 15 and 23, is not known or if this person could not be punished, the customs office shall provide for destruction of the goods, whose manufacture or modification infringed intellectual property rights and which were confiscated within the proceedings on a misdemeanor or within the proceedings on an administrative tort, as appropriate, at the expense of the right-holder.

(6) According to information provided by the customs office, on the basis of a final decision on forfeiture or confiscation of counterfeit goods, and provided that the right-holder grants his consent to the use of counterfeit goods modified pursuant to paragraph 4 above for humanitarian purposes in writing or by electronic means, the customs directorate shall decide, which validly forfeited or confiscated counterfeit goods are suitable for securing humanitarian needs and which of these goods could be transferred free-of-charge for humanitarian purposes to a beneficiary specified in paragraph 7 hereof under the conditions stipulated by this Act and special regulations.22 Counterfeit goods that are clearly detrimental to health may not be transferred free-of-charge for humanitarian purposes. Counterfeit goods shall be transferred free-of-charge according to the purpose and use or according to the urgency of needs, with respect to the order of received requests.

(7) Beneficiaries may include

(a) organizational units and contributory organizations of the state or territorial self-governing units, established for the purpose of providing social care or active in the area of health care or education;23 or

(b) other legal persons,24 provided that they meet the following preconditions:

1. they were not established for the purpose of operating a business;

2. the object of their activities includes only activities in areas specified in subparagraph (a) above;

3. they have been providing humanitarian aid for a period of at least 2 years; and

4. they prove by means of a certificate of the competent authority that is not older than 3 months that they have no outstanding taxes, premiums for social security and contribution to the state employment policy, including penalties, or payable outstanding premiums for public health insurance, including penalties.25 For the purposes of this Act, payable outstanding premiums for social security and contribution to the state employment policy shall include outstanding premiums including penalties, for which payment in installments has been permitted pursuant to the special regulation.26

(8) The beneficiary shall be obliged to

(a) adopt measures to prevent misuse of counterfeit goods and their repeated introduction to the market;

(b) under the conditions stipulated by the customs directorate and at its own expense, provide for removal of trademarks pursuant to paragraph 4 (a) above or other modifications in a manner specified in paragraph 4 (b) above and destruction of the removed trademarks, waste and remainders after these modifications pursuant to paragraph 4 (c) above.

(c) provide for marking of all modified counterfeit goods with the sign “humanitarian” made by an irremovable paint in such a manner that the sign is not clearly visible and thus the dignity of the persons using these counterfeit goods is not diminished;

(d) keep records of and store documents on acceptance of counterfeit goods and of the manner of management thereof, for a period of 3 years from the instant of the transfer free-of-charge; this shall in no way prejudice the provisions of special regulations providing for keeping records and storing the set documents.27

(9) The General Directorate of Customs shall conclude a written agreement with the beneficiary pursuant to paragraph 7 above on the transfer of counterfeit goods free-of-charge for humanitarian purposes, which agreement must always include, in addition to the usual essential elements, specification of the type and amount of counterfeit goods transferred free-of-charge, the conditions set by the customs directorate pursuant to paragraph 8 (b) above, as well as a clause on a contractual fine28 in case of breach of the obligation to transfer the counterfeit goods free-of-charge exclusively for humanitarian purposes, and the specific purpose, for which the beneficiary will use the counterfeit goods.

(10) The customs office shall be authorized to control at the beneficiary the fulfillment of the obligations, to which the beneficiary undertook in writing in the agreement. It shall notify the customs directorate of the results of this control.

14a.—(1) The state shall not be liable for damage29 incurred

(a) by the right-holder by the fact that the customs office has not detected goods, whose manufacture or modification infringed intellectual property rights, or that these goods have been released or that a measure has not been taken for the purpose of detention of these goods,30 unless this damage is subject to liability of the state under a special regulation;31

(b) by persons, who are affected by the action of the customs office, if a loss or damage has been incurred during control performed by the customs office within customs proceedings and prior to submission or after receipt of an application, unless this damage has been caused by an illegal decision or incorrect administrative procedure of the customs authority.

(2) The civil liability of the right-holder shall be governed by the Civil Code.

Part Five Misdemeanors and Administrative Torts

CHAPTER I MISDEMEANORS

15.—(1) A natural person commits a misdemeanor by

(a) submitting a customs declaration for releasing goods, whose manufacture or modification infringed intellectual property rights, to free circulation32 or to an export procedure;33

(b) submitting an application for releasing goods, whose manufacture or modification infringed intellectual property rights, for re-export or applying for their placement in a free customs zone or free customs warehouse;34

(c) violating customs regulations and thus ensuring the releasing of goods, whose manufacture or modification infringed intellectual property rights, to free circulation, to an export procedure or for re-export,35 or to one of the procedures with conditional exemption from customs duties,36 or their placement in a free customs zone or free customs warehouse;

(d) transporting to the Community customs territory, or owning, holding, storing or selling in the territory of the Czech Republic goods that have escaped customs supervision and whose manufacture or modification infringed intellectual property rights; or

(e) failing to comply with the conditions for management of goods detained pursuant to this Act.

(2) The following sanctions may be imposed for a misdemeanor:

(a) a fine;

(b) forfeiture of the goods.

(3) The customs office, within whose jurisdiction a misdemeanor was established, shall be competent to pursue proceedings on the misdemeanor in the first instance.

Misdemeanors

16.—(1) A fine of up to CZK 100,000 may be imposed for a misdemeanor pursuant to Section 15 (1) (a) and (b). A fine of up to CZK 1,000,000 may be imposed for a misdemeanor pursuant to Section 15 (1) (e).

(2) A fine in the following amount may be imposed for a misdemeanor pursuant to Section 15 (1) (c) and (d):

(a) up to CZK 1,000,000;

(b) up to CZK 5,000,000 if the offender breached his obligations to a substantial extent;

(c) up to CZK 20,000,000 if the offender breached his obligations to a large extent.

(3) Obligations were breached to a substantial extent if the customs value of the goods, whose manufacture or modification infringed intellectual property rights, exceeds CZK 1,000,000 and, in case of goods that are exported or re-exported, if the statistical value of the goods determined pursuant to the special regulation37 exceeds CZK 1,000,000. Obligations were breached to a large extent if the customs value of the goods, whose manufacture or modification infringed intellectual property rights, exceeds CZK 5,000,000 and, in case of goods that are exported or re-exported, if the statistical value of the goods determined pursuant to the special regulation36 exceeds CZK 5,000,000.

(4) A fine for a misdemeanor pursuant to Section 15 (1) may be imposed within one year of the date when the customs office competent to hear the misdemeanor learnt of violation of this Act and at the latest 6 years from the date of breach or non-compliance with the obligation.

(5) The sanction of forfeiture of goods may be imposed separately or together with a fine.

17. and 18. Repealed

Forfeiture of Goods

19.—(1) In addition to a fine or even separately, a sanction may be imposed of forfeiture of goods that belong to the offender and

(a) that were used or intended for committing a misdemeanor; or

(b) that were acquired by the misdemeanor or that were acquired for the goods acquired by the misdemeanor.

(2) Forfeiture of goods may be imposed, even if their value is in striking disproportion to the nature and gravity of the misdemeanor.

(3) Forfeiture of goods may only be imposed within the deadlines specified in Section 16 (4).

Confiscation of Goods

20.—(1) If a sanction of forfeiture of goods has not been imposed for a misdemeanor, the customs office shall decide on confiscation of the goods provided that

(a) they belong to an offender that cannot be prosecuted for the misdemeanor;

(b) they do not belong to the offender or they do not entirely belong to the offender and that this is required with respect to safety of persons or property or in other public interest.

(2) The customs office shall decide on confiscation of the goods, if the person that has violated the law in one of the manners specified in Section 15 (1), is not known.

(3) Goods may not be confiscated after expiry of 6 years from committing of the misdemeanor.

21. and 22. Repealed

CHAPTER II ADMINISTRATIVE TORTS

Administrative Torts

23.—(1) A legal person and a natural person who is an entrepreneur commit an administrative tort within their business activities by

(a) submitting a customs declaration for releasing goods, whose manufacture or modification infringed intellectual property rights, to a free circulation procedure or to an export procedure;

(b) submitting an application for releasing goods, whose manufacture or modification infringed intellectual property rights, for re-export or applying for their placement in a free customs zone or free customs warehouse;

(c) violating customs regulations and thus ensuring the releasing of goods, whose manufacture or modification infringed intellectual property rights, to free circulation, to an export procedure or for re-export, or to one of the procedures with conditional exemption from customs duties, or their placement in a free customs zone or free customs warehouse;

(d) transporting to the Community customs territory, or owning, holding, storing or selling in the territory of the Czech Republic goods that have escaped customs supervision and whose manufacture or modification infringed intellectual property rights; or

(e) failing to comply with the conditions for management of goods detained pursuant to this Act or failing to comply with the conditions for management of goods transferred free-of-charge for humanitarian purposes, as appropriate.

(2) The following sanctions may be imposed for an administrative tort:

(a) a fine;

(b) forfeiture of the goods.

(3) The customs office, within whose jurisdiction an administrative tort was established, shall be competent to pursue proceedings on the administrative tort in the first instance.

24.—(1) A fine of up to CZK 100,000 may be imposed for an administrative tort pursuant to Section 23 (1) (a) and (b). A fine of up to CZK 1,000,000 may be imposed for an administrative tort pursuant to Section 23 (1) (e).

(2) A fine in the following amount may be imposed for an administrative tort pursuant to Section 23 (1) (c) and (d):

(a) up to CZK 1,000,000;

(b) up to CZK 5,000,000 if the offender breached his obligations to a substantial extent;

(c) up to CZK 20,000,000 if the offender breached his obligations to a large extent.

(3) Obligations were breached to a substantial extent if the customs value of the goods, whose manufacture or modification infringed intellectual property rights, exceeds CZK 1,000,000 and, in case of goods that are exported or re-exported, if the statistical value of the goods determined pursuant to the special regulation34 exceeds CZK 1,000,000.

(4) Obligations were breached to a large extent if the customs value of the goods, whose manufacture or modification infringed intellectual property rights, exceeds CZK 5,000,000 and, in case of goods that are exported or re-exported, if the statistical value of the goods determined pursuant to the special regulation exceeds CZK 5,000,000.

(5) A fine for an administrative tort pursuant to Section 23 (1) may be imposed within one year of the date when the customs office competent to hear the administrative tort learnt of violation of this Act and at the latest 6 years from the date of breach or non-compliance with the obligation.

(6) The sanction of forfeiture of goods may be imposed separately or together with a fine.

25. and 26. Repealed

Forfeiture of Goods

27.—(1) Goods belonging to the offender may be confiscated provided that

(a) they were used or intended for committing an administrative tort; or

(b) they were acquired by the administrative tort or that were acquired for the goods acquired by the administrative tort.

(2) Forfeiture of goods may be imposed, even if their value is in striking disproportion to the nature and gravity of the administrative tort.

(3) Forfeiture of goods may only be imposed within the deadlines specified in Section 16 (4).

Confiscation of Goods

28.—(1) If a sanction of forfeiture of goods has not been imposed for an administrative tort, the customs office shall decide on confiscation of the goods provided that

(a) they belong to an offender that cannot be prosecuted for the administrative tort;

(b) they do not belong to the offender or they do not entirely belong to the offender and that this is required with respect to safety of persons or property or in other public interest.

(2) The customs office shall decide on confiscation of the goods, if the person that has violated the law in one of the manners specified in Section 23 (1), is not known.

(3) Goods may not be confiscated after expiry of 6 years from committing of the administrative tort.

CHAPTER III JOINT PROVISIONS

28a.—(1) The state shall become the owner of forfeited and confiscated goods.

(2) Fines shall be collected and exacted by the customs office that imposed them. Income from fines and from the sale of forfeited and confiscated goods shall be an income for the state budget.

(3) A fine imposed for a misdemeanor or administrative tort pursuant to this Act shall be payable within 30 days of the date of legal force of the decision on imposing thereof.

29., 29a. and 30. Repealed

Part Six Joint Provisions

31.—(1) The costs pursuant to Section 4 (3) shall be reimbursed within 30 days of the date of delivery of the notice from the customs directorate concerning their amount. If the prescribed amount notified pursuant to Section 4 (3) is not paid within this deadline, the customs directorate shall order the payment of this amount by the right-holder through a decision.38

(2) The costs pursuant to Section 14 (1) to (5) shall be reimbursed within 30 days of the date of delivery of the decision.

(3) Reimbursement of the costs may be ordered with respect to goods and persons specified in the provisions referred to in paragraphs 1 and 2 above through a decision only within 3 years of the end of the calendar year, during which the customs directorate or customs office learnt of

(a) a final decision of the court that the manufacture or modification of goods infringed intellectual property rights;

(b) adoption of a preliminary injunction by the court to destroy the goods;

(c) the latest costs incurred by the customs office in connection with maintaining the goods under customs supervision and with destruction of the goods and other management of the goods, incurred in relation to the given goods.

31a.—(1) An appeal against a decision of customs office pursuant to this Act shall not have suspensory effect. This shall not apply to appeals lodged against decisions on misdemeanors and on administrative torts.

(2) Within an advice provided in a decision on dismissing an appeal against a decision pursuant to this Act, the appellate body shall also set a deadline within which an action may be brought to the court for review of this decision.39

31b.—(1) Contractual fines pursuant to Section 14 (9) shall be an income for the state budget.

(2) In cases of collecting and exacting reimbursement of costs incurred purposefully by customs offices, on the basis of the duty to have goods under customs supervision, and the costs for withdrawal and destruction of goods, the customs offices shall proceed pursuant to a special regulation on administration of taxes and fees mutatis mutandis.40

31c. Unless this Act stipulates otherwise, the Code of Administrative Procedure41 shall apply to the proceedings before customs offices.

32. to 36. Repealed

Legal Force

41. This Act enters into effect on the first day of the third calendar month following after the date of its promulgation.

***

Act No. 121/2000 Coll., on copyright, rights related to copyright and on amendment to some laws (Copyright Act), entered into effect on December 1, 2000.

Act No. 260/2002 Coll., amending Act No. 191/1999 Coll., on measures concerning import, export and re-export of goods infringing certain intellectual property rights and on amendment to some other laws, as amended by Act No. 121/2000 Coll., Act No. 586/1992 Coll., on income taxes, as amended, Act No. 593/1992 Coll., on reserves for determining the income tax base, as amended, and Act No. 569/1991 Coll., on the Land Fund of the Czech Republic, as amended entered into effect on September 1, 2002.

Act No. 255/2004 Coll., amending Act No. 191/1999 Coll., on measures concerning import, export and re-export of goods infringing certain intellectual property rights and on amendment to some other laws, as amended, entered into effect on the date of legal force of the Treaty of Accession of the Czech Republic to the European Union (May 1, 2004).

Prime Minister of the Government:

PhDr. Špidla, signed