1999年7月29日第191/1999号法案，关于进口，出口及转口过程中侵犯知识产权货物处理办法，以及一些针对其他法律的修正案， 捷克共和国

Compensation of Damages

(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 Codc^l5.

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,

(a)

when performing a customs check of goods transported across the state borderl6, or

(b)

when searching for goods removed from customs supervision 17, or

l8

(c)

when performing a customs checkof goods placed under any of the procedures involving suspensive arrangements, or

(d)

when performing a check of goods placed in a free customs zone or a free customs

_h 19

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.

(2)

If the customs office finds, when verifying a customs declaration²⁰ 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 finding regarding the potential infringement of his or her rights, so that he/she could submit a request in accordance with Article 4 above.

(3)

The customs office shall be entitled to withhold goods as outlined in Paragraphs (1) and

(2) above regardless of rights of third parties. The customs office shall issue a ruling whereby the goods in question are withheld, and deliver it to the person at whom the goods have been found. The person at whom the goods have been found may lodge an appeal against the ruling within 15 days from its delivery.

(4)

The ruling whereby the goods in question have been withheld shall indicate reasons of the action, as well as advice regarding rights and obligations of the person whom the ruling concerns. The customs office may leave goods that can be withheld with the person concerned, and instruct him or her that he/she must not use, sell, or otherwise dispose of the goods.

(5)

The person to whom the ruling withholding the goods in question has been delivered shall be obliged to surrender the goods to the customs office. If the goods are not surrendered upon the appeal of the customs office, they may be taken away from their holder. An official record of the surrender or taking away of the goods shall be prepared, which shall also include a description of the goods in question. The person who has surrendered the goods, or from whom the goods have been taken away, shall be given a receipt for them.

(6)

If withheld goods are no longer needed for further proceedings, and their forfeiture or confiscation as a result of offence or misdemeanour proceedings, or their destruction as provided for in Article 14 below, are out of question, they shall be returned to the person whom they were withheld from.

(7)

If the right to withhold goods is claimed by a person different from that at whom the goods in question were withheld, and the customs office has doubts whether the goods indeed belong to the former person, or if the customs office has doubts whether the goods in question indeed belong to the person at whom they were withheld, it shall not surrender the

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

(1)

If the customs office to which its customs directorate has announced that it is possible to adopt a measure learns, on its own or after a meeting with the authorised person, that there are goods in any of the situations described in Article 1, Paragraph (1), Subparagraph (a), and matching the counterfeit or pirated goods description found in its jurisdictional territory, it shall issue a ruling suspending already commenced customs proceedings regarding the placement of the goods in question under the proposed customs procedure or their release for re-export for a period of ten workdays, issue a ruling withholding the goods in question, and notify the customs directorate of its actions without any unnecessary delay. For the purpose of facilitating further proceedings, the customs office shall be authorised to sample the goods in question and prepare documentation pertaining thereto.

(2)

If the customs office establishes the facts referred to in Paragraph (1) above in the course of customs supervision, in cases other than mentioned in Paragraph (1) above, it shall issue a ruling withholding the goods in question, and notify the customs directorate of its actions without any unnecessary delay; the provisions of Paragraph (1 ) on sampling and documentation shall apply mutatis mutandis.

(3)

The customs office that has adopted the measures referred to in Paragraphs (1) or (2) above shall notify the authorised person without any unnecessary delay, so that he or she can protect his or her rights. The authorised person shall notify the customs office within ten workdays from being notified of the apprehension of goods or of the suspension of customs proceedings whether the court has ordered an injunction, or whether it has commenced proceedings leading to a verdict proclaiming the goods in question counterfeit or pirated goods. The above information shall be either submitted in writing, or communicated orally and entered into a record. It may also be wired, telexed, or faxed, but must be supplemented by a written notice or personal communication entered into a record

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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.

(4)

The customs office shall permit the authorised person and the person(s) whom the adopted measure concerns to inspect the withheld goods.

(5)

Provisions of Article 9, Paragraphs 3 to 7, dealing with the withholding of goods shall apply mutatis mutandis.

Article 12

Destruction of Counterfeit or pirated goods

(1)

If the court has lawfully ruled that the goods in question are counterfeit or pirated goods, the owner or holder has not destroyed them himself or herself³, and there has not been any ruling to forfeit or confiscate the goods in question, the customs office, acting upon a proposal of the authorised person or on its own, shall order the owner or holder of the counterfeit or pirated goods to

(a)

destroy the goods in question by a deadline set by the customs office at his or her own expense and under supervision of the customs office, or

(b)

remove the goods in question from trading in order not to infringe upon rights of the authorised person without any title to a compensation ofdamage.

(c)

The above provision shall be without prejudice to the use of any other legal means and actions which the authorised person may apply to protect his or her rights.

(1)

Counterfeit or pirated goods may be abandoned to the State provided that no costs for the state will arise therefrom. In such case the provision of the paragraph 1, letter a) shall apply.

(1)

The customs office shall issue a ruling to destroy imported or exported counterfeit goods and pirated goods, and arrange their destruction, if their owner is not known or has not been identified. The customs office shall make a record of the destruction of the counterfeit goods and pirated goods.

(1)

If the owner or holder of the counterfeit or pirated goods fails to comply with his or her duty imposed by a ruling in accordance with Paragraph (1) above, the customs office shall be authorised to issue a ruling to confiscate and destroy the goods in question at the expense ofthe owner or holder. The costs of confiscation and destruction shall be due and payable within thirty days from the delivery of the customs office's ruling whereby they have been prescribed.

(1)

The following shall not be considered measures aimed to remove counterfeit or pirated goods from trading as provided for in Paragraph (1), Subparagraph (b):

(a)

a re-export ofcounterfeit or pirated goods in an unchanged state;

(b)

a simple removal of trademarks illegally used on counterfeit goods, except III exceptional cases;

(c)

the assignment of another customs-approved treatment to the goods in question.

(1)

The term "exceptional case of the removal of trademarks" as used in Paragraph (5), Subparagraph (b), above, shall refer to a simple removal of trademarks with consent of the authorised person, providing that the trademark was placed on goods of a class different from that for which it has been registered. The trademarks shall be removed and destroyed at the expense of the owner or holder of the counterfeit goods.

(1)

In addition to the information listed in Article 11, Paragraph (3), above, the customs office shall provide, upon a written request submitted by the authorised person, the names

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

(a)

submitted a customs declaration to release counterfeit or pirated goods for free circulation or to place them under an export procedure or any of the procedures involving suspensive arrangements,

(b)

achieved, by a violation of customs regulations, the release of counterfeit or pirated goods, or their placement in a free customs zone or a free customs warehouse,

(c)

submitted an application for the release of counterfeit or pirated goods for re-export, or applied for their placement in a free customs zone or a free customs warehouse,

(d)

imported or exported counterfeit or pirated goods,

(e)

owns, holds, stores or sells counterfeit or pirated goods in the territory of the Czech Republic,

(t)

failed to comply with goods disposal conditions set forth herein.

Part 1 Offences

Article 16

Payment of Fines

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

Forfeiture of Goods

(1) In addition to or instead of a fine, the goods belonging to the perpetrator and

(a)

used or intended to be used in committing the offence in question, or

(b)

acquired as a result of the offence or obtained in exchange for the goods acquired as a result of the offence

may be forfeited.

(2)

The forfeiture shall not be ordered if the value of the goods in question is conspicuously out of proportion to the nature and seriousness of the offence.

(3)

The state shall become the owner of forfeited goods.

(4)

The forfeiture of goods may be ordered only in compliance with the deadlines laid down in Article 17 above.

Article 20

Confiscation of Goods

(1) If no forfeiture has been ordered as a sanction for an offence, the customs office shall nevertheless decide to confiscate such goods if

(a)

they belong to a perpetrator who cannot be prosecuted for the offence in question,

(b)

they do not belong, in their entirety or in part, to the perpetrator of the offence in question,

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

Payment of Fines

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

Forfeiture of Goods

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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Confiscation of Goods

(1)

If no forfeiture has been ordered as a sanction for an offence, the customs office may nevertheless decide to confiscate such goods if they do not belong to the perpetrator of the misdemeanour in question, 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.

(3)

The state shall become the owner of the confiscated goods.

Article 29

Jurisdiction

(1)

A misdemeanour shall be dealt with by the customs office in the jurisdictional territory of which the residence or seat of the person or entity in question is situated.

(2)

If the person or entity in question does not reside or have its seat in the territory of the Czech Republic, the misdemeanour shall be dealt with by the customs office in the jurisdictional territory of which it has been discovered.

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,

(a)

the destruction of forfeited or confiscated counterfeit or pirated goods,

(b)

the removal of trademarks from forfeited or confiscated counterfeit or pirated goods, if these were placed on goods of a class different from that for which the trademark in question has been registered, or

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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

(1)

If lodged in time, an appeal against a ruling imposing a sanction for an offence or a misdemeanour shall have a dilatory effect that cannot be waived.

(2)

Unless stipulated otherwise, an appeal against a ruling or decision of customs authorities shall not have any dilatory effect. For reasons worth considering, customs authorities may permit an appeal to have a dilatory effect, if justified rights of a person affected by the ruling or decision in question require so, and if such an action does not make the collection of fees and charges more difficult or is not prevented by a public interest matter.

(3)

If a compensation of costs determined in accordance with Article 7, Paragraph 4, which has been secured by a cash deposit as per Article 6 within the period of time stipulated in Article 7, Paragraph 4, is not paid voluntarily, it shall be paid from the cash deposit. The balance ofthe cash deposit, if any, shall be returned to the authorised person.

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

(a)

provisions of regulations dealing with the management and administration of taxes and fees²⁷, insofar as the payment, collection, and exaction of fines are concerned,

(b)

the Administrative Code!3 in all other matters.

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:

1. In Article 53a, Paragraph 1, the words "as well as goods designed to make graphic copies (copiers)" shall be inserted after the words "(blank recording carriers)".
2. Paragraphs 2 and 3 of Article 53a shall be deleted. The existing Paragraph 4 shall be renumbered as Paragraph 2.
3. Paragraph 2 of Article 53a shall read as follows: "(2) Provisions of Paragraph 1 shall apply mutatis mutandis to export transactions."

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