Key Benefits:
Publics concerned: economic operators, holders of intellectual property rights.
Subject: fight against counterfeiting. Placement of goods suspected of being counterfeit.
Entry into force: the text comes into force on the day after its publication.
Notice: this decree amends the regulatory part of the intellectual property code in order to implement the provisions relating to the placement by the customs administration of goods suspected of being counterfeit, inserted in this code by theArticle 7 of Act No. 2014-315 of 11 March 2014 Strengthening the fight against counterfeiting. It also aims to implement the provisions of Regulation (EU) No. 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning the control by Customs authorities of respect for intellectual property rights and repealing Council Regulation (EC) No. 1383/2003, which require further enforcement.
References: this decree is taken for the application of the articles L. 335-10 to L. 335-18, L. 521-14 to L. 521-19, L. 614-32 to L. 614-39, L. 622-8, L. 623-36 to L. 623-44, L. 716-8 to L. 716-16 and L. 722-9 to L. 722-17 the intellectual property code. This decree and the articles of Intellectual Property Code that it amends, in their drafting of these amendments, can be found on the website Légifrance (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Finance and Public Accounts,
Considering Regulation (EU) No. 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning the control by Customs authorities of respect for intellectual property rights and repealing Regulation (EC) No. 1383/2003;
Vu le Intellectual Property Codeincluding articles L. 335-10 to L. 335-18, L. 521-14 to L. 521-19, L. 614-32 to L. 614-39, L. 622-8, L. 623-36 to L. 623-44, L. 716-8 to L. 716-16 and L. 722-9 to L. 722-17;
Vu le Decree No. 97-1194 of 19 December 1997 amended to apply to the Minister of Economy, Finance and Industry 1° of Article 2 of Decree No. 97-34 of 15 January 1997 the deconcentration of individual administrative decisions;
Vu le Decree No. 97-1195 of 24 December 1997 modified for application 2° of Article 2 of Decree No. 97-34 of 15 January 1997 the deconcentration of individual administrative decisions of the Minister of Economy, Finance and Industry;
The State Council (Finance Section) heard,
Decrete:
Title III of Book III of the Intellectual Property Code is thus amended:
1° In chapter V, sections R. 335-1 and R. 335-1-1 are repealed;
2° After chapter V, a chapter V bis is inserted as follows:
“Chapter V bis
“The restraint
"Art. R. 335-6.-I.-The written request requesting the intervention of the customs, whether before or after the applicant has been informed of the placement of the goods in custody, shall include:
« 1° Name and name or social reason and contact information of the applicant;
« 2° The status of the applicant with respect to the intellectual property rights or rights for which the intervention of the customs is requested;
« 3° supporting documents enabling the competent customs service to ensure that the applicant is entitled to submit the application;
« 4° Where appropriate, the contact information of the applicant's representative and the documents justifying the representation;
« 5° The list of rights or rights whose protection is requested;
« 6° Specific and technical data on authentic goods, such as markings, barcodes or images;
« 7° The information necessary to allow Customs authorities to easily recognize authentic goods;
« 8° any useful information at the service to assess the risk of violation of the protected rights or rights, such as the list of authorized distributors, the country(s) of manufacture and the value of authentic goods;
« 9° The applicant's commitment to comply with the obligations arising from the application for intervention.
"II.-The procedure for submitting the application shall be specified by order of the Minister for Customs.
"Art. R. 335-7.-I.-The Minister for Customs accepts or rejects the written request within thirty working days of its receipt.
"II.-When the application is incomplete, the applicant is invited to provide the missing information within a ten-day waiting period.
"III.-The Minister's decision is valid for a period not exceeding one year from the day after the application is accepted.
"IV.-The application is renewable upon express request from the interested party.
"Art. R. 335-8.-Where the written request is filed after the applicant has been informed of the placement of the goods in custody, the Minister of Customs shall accept or reject it within two working days from receipt of the goods.
"If the application does not contain the specific and technical data on authentic goods, the information necessary to allow Customs authorities to easily recognize authentic goods and the information useful to service to assess the risk of violation of the protected rights or rights, it is only allowed for the ongoing deduction of the goods, unless such information is provided within ten working days of notification of the detainee.
"Art. R. 335-9.-The Minister of Customs may suspend or repeal the decision that is entitled to the written request or refuse to apply for renewal. The applicant shall inform the applicant, who has a time limit to submit its comments. This deadline, set by the Minister for Customs, cannot be less than fifteen days. The decision is notified to the interested party only after the expiry of this period.
"Art. R. 335-10.-The Regional Director of Territorially Competent Customs shall decide on the request for an extension of the ten-day period of the deduction.
"Art. R. 335-11.-The Minister for Customs shall make decisions under Articles 9,12 and 16 of Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013.
"Art. R. 335-12.-If the competent authority fails to respond within the time limits set out in this chapter, the applications concerned are considered rejected.
"Art. R. 335-13.-The guarantees for the possible compensation of the holder of the goods, in the event that the counterfeiting would not be subsequently recognized, which may be required by the holder of the copyright or the neighbouring law, which has been provided by civil or correctional means, are fixed by the judicial authority.
"Art. R. 335-14. -The definition of perishable foodstuffs is specified by order of the Minister for Customs.
"Art. R. 335-15.-The costs associated with the measure of restraint or the precautionary measures imposed by the civil jurisdiction shall be borne by the holder of the copyright or the right of neighbour under this Code and Article 29 of Regulation (EU) No. 608/2013 of the European Parliament and of the Council of 12 June 2013 shall include the costs of storage, handling, transport and destruction of the goods.
"The manner in which the costs referred to in the preceding paragraph are calculated shall be determined by an order of the Minister for Customs.
"Art. R. 335-16.-I.-When the customs administration decides to take a sample sample, three copies are taken by customs officers. One of them shall be handed over to the holder of the copyright or neighbouring law or to his or her representative, the other shall be handed over to the holder or the declarant or the representative of one of them and the latter shall be retained by the customs administration. The three samples must be identical as possible.
"The sampling is carried out in the presence of either the holder of the goods or the declarant or a representative of one of them. The holder of copyright or neighbouring law or his or her representative may also be present. They are informed of the time, location of sample collection and the faculty they have to be present.
"In the event of the absence of the holder of the goods or the declarant or the representative of one of them, a witness who does not belong to the customs administration is required by two customs officers to attend the collection.
"When the holder of copyright or neighbouring law or his or her representative is not present, the sample to which he or she is intended may, upon his or her express request and at his or her own expense, be sent or sent to his or her representative. When the holder of the goods or the declarant or representative of one of them is not present, the sample that is intended for it is retained by the administration.
"If a commodity or object, because of its weight, size, value, nature or too small quantity of product, is not subject to a sampling of three samples, the goods or the object shall be taken in its entirety and shall constitute a single sample, which shall be handed over to the holder of the copyright or the right of neighbour or its representative.
"II.-A sample taken is sealed. Each must retain an identification label bearing the following:
« 1° The name, name or social reason and address of the holder of the goods or the declarant;
« 2° Where applicable, the name, first name and address of the required witness;
« 3° The name, first name or social reason and address of the holder of copyright or neighbouring law or his representative to whom the sample is submitted or sent;
« 4° The name of the goods;
« 5° The date, time and place of sampling;
« 6° The order number of each sample;
« 7° The name, first name and quality of the agent who made the sample and its signature.
"III.-Any sampling results in the drafting of a record of observation within the meaning ofArticle 334 of the Customs Code. The minutes shall include, in addition to the information provided by this code, the following:
« 1° The date, time and place of sampling;
« 2° The name, first name or social reason and address of all persons who attended the sampling;
« 3° Where applicable, mention of the absence of the holder of the copyright or of the neighbouring right or his or her representative and of the information provided to him or her of the time and place of sampling and of the faculty at which he or she was present;
« 4° Where applicable, mention of the defect or refusal of the presence of the holder of the goods, the declarant or the representative of one of them;
« 5° A summary of the circumstances under which the sampling was carried out;
« 6° Identification of the sample(s) and their delivery to their recipient;
« 7° Where applicable, the sending of the sample to the holder of the copyright or neighbouring law or to his or her representative, for the sole purpose of analysis and for the purpose of facilitating the actions it may be required to engage in civil or criminal proceedings.
"People present at the sampling may include in the record all statements they consider useful. They are invited to sign it. In case of refusal, reference is made to the record of finding.
"A copy of the record is given to each person present at the time of the sampling.
"IV.-In the event of a legal action by the owner of the copyright or the neighbouring law, the Customs administration shall retain the samples attributed to him until the settlement of the case. Depending on the outcome of the civil or criminal action undertaken by the holder of the copyright or neighbouring law, they are returned either to the holder or to the declarant or to a representative of one of them.
"Unless the circumstances do not permit, the holder of the copyright or the neighbouring law shall return to the Customs authorities the samples attributed to him, from the end of the analysis, and at the latest at the end of the deduction.
"V.-When the deduction procedure is implemented in respect of goods transported in small shipments, this section is not applicable.
"Art. R. 335-17.-When the deduction is notified, the holder of the goods is invited to inform the owner of the opportunity offered to oppose the destruction of these goods.
"The right-holder is informed that the deduction and, where appropriate, the destruction of the goods is carried out under his or her responsibility.
"Art. R. 335-18.-When intended to be destroyed with the consent of the holder of the copyright or the right of neighbour and the consent of the holder of the goods, whether or not they are transported in small consignments, the goods remain retained until their destruction.
"The destruction of the goods is carried out under the responsibility of the copyright holder or the neighbouring law.
"The destruction of the goods is found by two customs officers by record of finding within the meaning ofArticle 334 of the Customs Code. The holder or the declarant and the holder of copyright or neighbouring law are informed of the faculty they have to be present. The minutes shall include, in addition to the information provided by this code, the following:
« 1° The date, time and place of destruction;
« 2° The name, first name or social reason and address of all persons who attended the destruction;
« 3° The type of goods and their quantity;
« 4° The reference(s) of the deduction report;
« 5° The date of the express or tacit agreement of the declarant or holder of the goods.
"A copy of this report shall be given to the declarant, the holder of the goods and the holder of the copyright or the neighbouring law, if they are present during the destruction. A copy is given to them if they are absent. »
In chapter III of Book V title II of the same code, articles R. 523-1 to R. 523-6 were replaced by an article R. 523-1, as follows:
"Art. R. 523-1.-Chapter V bis of title III of Book III is applicable to the deduction by the Customs administration of goods that may affect drawings and models, as provided for in chapter I bis of title II of Book V."
After chapter IV of title I of book VI of the same code, a chapter IV bis is inserted as follows:
“Chapter IV bis
“The restraint
"Art. R. 614-36.- Subject to the provisions provided for in Article R. 614-37, Chapter V bis of Title III of Book III is applicable to the deduction by the customs administration of the goods liable to infringe the invention patents, as provided for in Chapter IV bis of Title I of Book VI.
"Art. R. 614-37.-When the customs administration decides to take a sample sample, two copies are taken by customs officers. One is delivered to the owner of the goods or to the holder or representative of one of them and the other is retained by the customs administration.
"The owner of the patent or the supplementary protection certificate or the person authorized to operate the patented invention or the subject-matter of the supplementary protection certificate does not take samples and no sample is submitted to the patentee.
"If a commodity or object, because of its weight, size, value, nature or too small quantity of product, is not subject to a sampling of two samples, the goods or object shall be taken in its entirety and shall be a single sample, which shall be retained by the customs administration. »
In chapter II of title III of book VI of the same code, after article R. 622-8, an article R. 622-9 is inserted as follows:
"Art. R. 622-9.-Chapter IV bis of title I of this book is applicable to this chapter. »
Chapter III of Book VI title II of the same code is supplemented by section 3 as follows:
“Section 3
“The restraint
"Art. R. 623-60.-Chapter IV bis of title I of this book is applicable to this chapter. »
In chapter VI of Book VII title I of the same code, articles R. 716-6 to R. 716-11 were replaced by an article R. 716-6 as follows:
"Art. R. 716-6.-Chapter V bis of title III of Book III is applicable to the deduction by the Customs administration of goods that may affect a mark, as provided for in chapter VI bis of title I of Book VII. »
Chapter II of Book VII, title II, of the same code is amended as follows:
1° The provisions of sections 1 to 3 are grouped in a section 1 entitled "Civil Actions";
2° It is added a section 2 as follows:
“Section 2
“The restraint
"Art. R. 722-7.-Chapter V bis of title III of Book III is applicable to the deduction by the Customs administration of goods that may affect a geographical indication, as provided for in chapter II, section II, of title II of Book VII. »
2 of title IIAnnex to the above-mentioned Decree of 19 December 1997under the title: "Decisions within the jurisdiction of the General Directorate of Customs and Indirect Rights":
1° The title: "Regulations of the European Community that the Customs Administration is responsible for applying" is replaced by the title: "Regulations of the European Union that the Customs Administration is responsible for applying";
2° In this title, the title "Regulation (EC) No. 1383/2003 of 22 July 2003 concerning the intervention of Customs authorities with respect to goods suspected of violating certain intellectual property rights and the measures to be taken with respect to goods that infringe certain intellectual property rights" and the corresponding table are replaced by the following title and table:
« Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 concerning the control by Customs authorities of respect for intellectual property rights and repealing Council Regulation (EC) No 1383/2003
| 1 | Acceptance of the prior written application of the holder of an intellectual property right | Article 9, paragraph 1 |
| 2 | Acceptance of the written request of the holder of an intellectual property right, after being informed of the placement of the deducted goods | Article 9, paragraph 2 |
| 3 | Amendment of the decision on the list of intellectual property rights | Article 13 |
| 4 | Rejection of a written application by the holder of an intellectual property right where it does not contain mandatory information | Article 7, paragraph 2 |
| 5 | Extension of the period during which Customs authorities must intervene | Article 12, paragraphs 1 to 4 |
| 6 | Repeal or change of extension decision | Article 12, paragraph 5 |
| 7 | Repeal, suspension of decision | Article 16 |
3° The table under the item: " Intellectual Property Code » is replaced by the following table:
| 1 | Acceptance of the prior written application of the holder of an intellectual property right | Articles L. 335-10, L. 521-14, L. 614-32, L. 623-36, L. 716-8, L. 722-9 and I of Article R. 335-6 |
| 2 | Acceptance of the written request of the holder of an intellectual property right, after being informed of the placement of the deducted goods | Articles L. 335-11, L. 521-15, L. 614-33, L. 623-37, L. 716-8-1, L. 722-10, fourth and I of Article R. 335-7 |
| 3 | Rejection of a written application by the holder of an intellectual property right where the application does not contain the mandatory information | Article L. 335-10, L. 521-14, L. 614-32, L. 623-36, L. 716-8-1, L. 722-9 and I of Article R. 335-6 |
| 4 | Repeal, suspension and refusal to renew the decision | Article L. 335-16, L. 521-17-3, L. 614-37, L. 623-41, L. 716-8-6, L. 722-15 and R. 335-8 |
The 2 ter and 2 quater of Article 10 of the above-mentioned Decree of 24 December 1997 are replaced by the following 2 ter to 2 quater-3:
« 2 ter Retention and suspension of the release of goods under Articles 17 and 18 of Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 and in the first paragraph of Articles L. 335-10, L. 335-11, L. 521-14, L. 521-15, L. 614-32, L. 614-33, L. 623-37, L. 71622-8 Intellectual Property Code ;
« 2 quater L. 335-10, L. 335-11, L. 521-14, L. 521-15, L. 614-32, L. 614-32, L. 614-33, L. 623-36, L. 623-36 L. 335-15, L. 521-17-2, L. 614-37, L. 716-8-5 and L. 722-14 the intellectual property code;
« 2 quater-0 Authorisation for movement under customs surveillance of goods, to be destroyed under Article 25, paragraph 2, of Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013;
« 2 quater-1 The sample collection decision provided for in Article 19 of Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 and Articles L. 335-13, L. 521-17, L. 614-35, L. 623-39, L. 716-8-3 and L. 722-12 the intellectual property code;
« 2 quater-2 The decision to destroy the goods suspected of counterfeiting under Article 23 (1) and Article 26(3) and Article 8 of Regulation (EU) No 608/2013 of the European Parliament and of the Council of 12 June 2013 and Articles 26 L. 335-14, L. 335-15, L. 521-17-1, L. 521-17-2, L. 614-36, L. 614-37, L. 623-40, L. 716-8-4, L. 716-8-5, L. 722-13 and L. 722-14 the intellectual property code;
« 2 quater-3 The extension of the time limit for the deduction provided for in 4 of Article 23 of Regulation (EU) No 608/2013 of the European Parliament and Council of 12 June 2013 and in III of Articles L. 335-14, L. 521-17-1, L. 614-36, L. 623-40, L. 716-8-4, L. 722-13;".
The Minister of Finance and Public Accounts, the Minister of Economy, Industry and Digital Affairs and the Secretary of State responsible for the budget are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done on April 15, 2015.
Manuel Valls
By the Prime Minister:
Minister of Finance and Public Accounts,
Michel Sapin
Minister of Economy, Industry and Digital,
Emmanuel Macron
The Secretary of State in charge of the budget,
Christian Eckert
