Law No. 202 Of 13 November 2000 Concerning Certain Measures To Ensure Respect For Intellectual Property Rights In Customs Clearance Operations

Original Language Title:  LEGE nr. 202 din 13 noiembrie 2000 privind unele măsuri pentru asigurarea respectării drepturilor de proprietate intelectuală în cadrul operaţiunilor de vămuire

Read the untranslated law here: https://www.global-regulation.com/law/romania/3071910/-lege-nr.-202-din-13-noiembrie-2000-privind-unele-msuri-pentru-asigurarea-respectrii-drepturilor-de-proprietate-intelectual-n-cadrul-operaiunilor-de-v.html

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Law No. 202 of 13 November 2000 (* updated *) on certain measures to ensure respect for intellectual property rights in customs operations (updated until November 19, 2003)-PARLIAMENT ISSUING — — — — — — — — — — — — *) originally was published in MONITORUL OFICIAL nr. 588 of 21 November 2000. This is the updated form of S.C. "territorial Center of Electronic Computing" Piatra Neamt until November 19, 2003, with amendments and additions to: ORDINANCE No. 59 of 22 august 2002; Law No. 664 of 16 December 2002.
Romanian Parliament adopts this law.


Chapter 1 General provisions Article 1 (1) for the purposes of this Act, the terms of use shall be defined as follows: 1. the intellectual property rights-copyright, rights related to copyright, trademark right to the product or service, the right to the industrial designs, geographical indications, right over the right to the patent right for invention of supplementary protection, according to the law;
2. copyright-intellectual property right recognized an individual or individuals who have created an original intellectual creation in the fields of literary, artistic or scientific, irrespective of the method of creation, method or specific form of expression, independent of the value of their destination, or other legal holders, legal or natural persons;
3. rights related to intellectual property rights other than copyright, that benefit artists performers for their own interpretations or executions, producers of sound recordings for their own recordings, radio and television bodies for their own broadcasts;
4. the brand of product or service-a likely sign graphics representation, which serves to distinguish products times of services of a natural or legal person from those belonging to other people. May constitute trademarks hallmarks such as words, including personal names, designs, letters, numerals, figurative elements, three-dimensional shapes, i.e. the shape of goods or packaging or color combinations, as well as any combination of such signs;
5. design-new appearance of a product having a utility function;
6. geographical indication-the name that serves to identify a product originating in a country, region or locality of a State where a quality, reputation or other characteristics can be determined in this manner essentially attributable to geographical origin;
7. patent protection title that can be obtained for any invention, what is a product, a process or a method, in all fields of technology, provided that the invention be new, involve an inventive activity and be susceptible of industrial application;
8. supplementary protection certificate-title of protection that may be granted for any product protected by a patent in the territory of Romania, as medicine or plant protection product in accordance with the law;
9. the holder of the right-holder of a right of intellectual property rights, and any other person authorized to make use of this right or legal representative;
10. trademark-trademarks in any national register of Trademarks;
11. the authorized person-person owner allowed him to use the intellectual property right;
12. legal representative-hourly by the owner of the intellectual property Act, on its behalf, on Romanian territory;
13. goods infringing: a) any goods, including packaging, bearing without authorisation a trademark identical to product or service with a brand of product or service which has been lawfully registered for goods or which may be, in its essential aspects, a brand of product or service which has been lawfully registered and who, for this reason, infringes on the rights of the holder of this brand;
  

b) any brand of product or service assigned without authorisation to be clamped on the goods, even if presented separately, and that is in the same situation as the goods referred to. a);
  

c) any goods bearing a trademark identical with a brand of product or service being protected or which differs from it in substantially and is susceptible to constitute a breach through the use in relation to goods or services different from those for which a brand of product or service has been registered, causing a confusion regarding the source or origin;
  

d) any packaging that carries the brands of the counterfeited products, presented separately, on the same conditions as the goods referred to in subparagraph (a). a);
  

14. goods-pirate-all copies made without the consent of the right holder or person duly authorised in the country of production and which are made directly or indirectly, after a product spokesman of copyright or neighbouring rights, or a right in respect of models and designs, if making such copies would constitute an infringement of the intellectual property right in question.
15. goods which affect a right of intellectual property: a) counterfeit goods;
  

b) pirate goods;
  

c) goods which affect a patent or a supplementary certificate of protection;
  

d) goods which affect the entitlement of a geographical indications;
  

16. retention of goods-the unavailability of goods by the Customs authorities in the deposit required under customs supervision, the customs, freight forwarders, or the holder of a suspensive customs procedure, under the conditions laid down in the customs legislation, the duration established by the customs authority;
17. Flextronics-the person who prepares and submits the customs declaration in his own name or the person in whose name the customs declaration shall be drawn up by the nominee or agent.

(2) goods referred to assimilate point 15, where appropriate, any pattern or stencil, destined for the production of an adapted times counterfeited goods, some bearing such brand, product, or manufacture of some pirate manfacturing goods affecting a patent of invention, a supplementary protection certificate or to an geographical indications, provided that the use of such moulds or moulds to bring prejudice to the rightholder.
  

— — — — — — — — — — — — — point 1 of paragraph 1. (1) of article 1. 1 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.
The letter a) point 13 of paragraph 1. (1) of article 1. 1 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.
Point 14 of the para. (1) of article 1. 1 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.
Point 1 of paragraph 1. (1) of article 1. 1 was amended by law No. 664 of 16 December 2002, published in Official Gazette No. 930 on 19 December 2002.


Article 2 the provisions of this Act shall apply throughout the customs territory of goods: destined to be) placed under customs regimes of definitive import or export;
  

b) excisable goods placed under a suspensive customs procedure or in a free zone.
  

— — — — — — — — — — — —-b) of art. 2 has been modified by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 3 (1) shall be exempt from the provisions of this law on goods that carries a brand of product or service with the consent of the holder of such trademarks, geographical indications which times are protected by a patent or supplementary protection certificate, by a copyright or related right, through a law relative to a design right and which have been manufactured with the consent of the rightholder but traded without its consent.
  

(2) Are also exempted from the provisions of this Act and the following cases: a) excisable goods that have been manufactured or who wears a trademark or geographical indication under conditions other than those agreed with the rightholders;
  

b non-commercial) goods in luggage or in packages, under the scheme applicable to travelers and other individuals.
  

— — — — — — — — — — — —-b) of paragraph 1. (2) of article 9. 3 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Chapter 2 Conditions relating to the presentation of the application for intervention to the Customs authorities for the enforcement of an intellectual property right in article 4 (1) For the intervention of the Customs authorities the right holder a request addressed to the General Direction of the Vamilor, mentioning his capacity relating to intellectual property rights, demanding the suspension of vamuirii and retention of goods suspected to affect protected.
  

(2) upon the termination of the right of protection of intellectual property rights on Romanian territory the right holder shall be obliged to notify the General Directorate of Vamilor.
  


Article 5 for each of the intellectual property law is submitted a request.
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Art. 5 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 6 request for intervention of the Customs authorities for compliance with intellectual property right shall be presented in writing and shall contain the following particulars of the authentic carriers of goods, intellectual property law, and the elements of identification of the subject goods: 1. Information concerning the applicant: a) name and registered office of the legal person;
  

b) in the case of natural persons, surname, first name and address;
  


c) in the case of solicitation through the proxy, the mention of it;
  

(d) an indication of the number and date) the document issued by the State Office for inventions and Trademarks or any other institution with competence, which certifies the quality of holder of the right is protected in the territory of Romania;
  

e) persons delegated to be contacted in the case of detention of goods, with the number of telephone or fax;
  

f) signature and stamp, if appropriate, to the applicant.
  

2. Information relating to the identification of the authentic carriers of goods, intellectual property law: a) voucher authentic merchandises;
  

b) photos of the product and/or any other graphical representation of the logo in question, if applicable;
  

c) a sample of the product, if applicable;
  

d) indication of manufacturing goods, detailing is the name of the manufacturers and the seat;
  

e) name or legal persons authorized to import or export these goods, as appropriate;
  

f) any other information required for the identification of genuine goods.
  

3. Information relating to the identification of the goods concerned: a sufficiently accurate) description of goods reported, enabling the Customs authorities to recognize them;
  

b) presentation of photographs or other graphic representations, if possible;
  

c) presentation of samples of the product, if possible;
  

(d) the indication of the country of origin) and/or departure, if possible;
  

e) indicating the name and registered office of the company's main and/or persons involved in the importation or exportation of goods claimed, if possible;
  

f) the mode of transport used, and an indication of the transport company involved, detailing is the name and address, if possible;
  

g) border crossings it is possible to arrive the reclaimed goods;
  

h) time interval in which it is possible to arrive the reclaimed goods.
  

4. the time for requesting the intervention of the customs authority, in order to respect the right of intellectual property, can be up to one year from the date on which the request becomes effective.


Chapter 3 Measures within the competence of the Customs authorities, Article 7 (1) within 10 days after the registration of the application Direction Générale des Vamilor shall inform the applicant in writing or, where applicable, the necessity for the presentation of documents and additional information.
  

(2) the solution of rejecting the application of the intervention of the Customs authorities for the enforcement of intellectual property rights will be communicated to the applicant in writing, with the reasons for it.
  

(3) Against the solution of rejecting the application the applicant may make complaint to court jurisdiction.
  


Article 8 if the application is accepted, it becomes effective as from the date of the direction générale des Vamilor of proof of payment on behalf of equivalent in MDL of 100 euro tariff at the rate of Exchange established in accordance with the provisions of the customs code.
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Art. 8 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 9 amounts resulting from the application of the provisions of art. 8 of the customs authority constitutes income, which it manages and is used under the budget, according to the laws concerning the establishment of fees for customs services.


Article 10 upon request the Customs authorities to suspend the operation of effective customs and retain the goods suspected to affect a right of intellectual property and notify in writing the applicant and the declarant.


Article 11 (1) If within 10 days from the date of communication by the applicant the measure of suspension of the operation of customs clearance and retention of goods it does not require proof of a civil court or a criminal complaints and the provision of General guarantees in favor of the direction of Vamilor, equivalent to the customs value of goods forfeited the customs authority shall not grant the application for intervention, doing the performing vamuirii.
  

(2) the guarantee established in accordance with paragraph 1. (1) represents a measure of asiguratorie in order to cover possible damages established by final court verdict, brought the importer or, where appropriate, of the owner and consignee of goods times ensuring the payment of expenses incurred by keeping the goods under customs control.
  

(3) This warranty can be made in Moldovan lei through a money deposit or a bank letter of guarantee accepted by the customs authority.
  

(4) In cases, at the request of the applicant's General Direction Vamilor can extend no more than 10 days.
  

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Alin. (1) of article 1. 11 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 12 if fulfilling the conditions laid down in article 21. 11 customs authorities are empowered to extend detention of goods until the completion of the case in court.


Article 13 without prejudice to confidentiality of data and information the Customs authorities may allow the parties to examine the disputed goods detained, as well as to take samples for the purpose of determining, by analysis or test, if goods affect a right of intellectual property.


Article 14 where it is established, through the expert approved by the Court, as goods affect a right of intellectual property rights, the Customs authorities may provide the right holder copies of documents that have accompanied the goods.


Article 15 where the Customs authorities have undertaken all measures provided for by the customs regulations, but did not identify the goods claimed, the direction générale des Vamilor not responsible for requests approved and become effective.


Chapter 4 ex-officio Actions of customs authorities Article 16 General Directorate of Vamilor, based on the best of the State Office for inventions and Trademarks and the bodies of collective administration of copyright and related rights, submitted by the Customs authorities can initiate ex officio action to suspend the operation of customs and retaining the goods if they are suspected to affect a right of intellectual property.


Article 17 (1) Direction Générale des Vamilor Announces, in writing, immediately on the right holder and the declarant, informing them on the measure of suspension of the operation of the Customs and of the date of retention, and the Customs office where the goods in question.
  

(2) the right holder may own expertise means goods suspected to affect a right of intellectual property.
  


Article 18 If within 3 working days from receipt of the communication of the retention goods right holder does not submit to Direction Générale des Vamilor application for intervention of the Customs authorities for the enforcement of an intellectual property right, including proof of payment of the amount provided for in article 10. 8, customs authorities the measure lifting the suspension of the operation of customs and retaining the wares.


Chapter 5 the destination of goods infringing or pirate articles 19 (1) If, through a definitive and irrevocable judgment of judicial court action the rightholder shall be rejected or if you do not grant criminal complaint, customs authority performs customs clearance of goods.
  

(2) the importer, owner or consignee of goods may apply to the Court against the owner, asking for coverage of the eventual damage from the guarantee constituted under the provisions of art. 11(2). (1). on the basis of the judgment final and irrevocable Direction Générale des Vamilor execute the warranty.
  

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Art. 19 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 20 (1) If, through a definitive and irrevocable judgment of judicial court action the rightholder is allowed, the customs authority shall proceed in accordance with art. 25 lit. a). (2) In the situation referred to in paragraph 1. (1) the Customs authorities shall repay in full the guarantee constituted by the applicant; the customs authority shall not owe interest.
  

— — — — — — — — — — — —-. (1) of article 1. 20 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 21 the goods seized under art. 25 lit. He may have the following destinations): a) the destruction, in accordance with the legal norms in force;
  

b) if there is written consent of the rightholder, and provided that they are goods suitable for consumption or use by individuals, goods confiscated may be handed over free of charge, depending on the nature of the goods, the social care institutions, nonprofit organizations or humanitarian associations, sports clubs or associations times educational institutions. In this case the institution takes over for consumption or use goods undertakes not to sell or alienate them.
  

— — — — — — — — — — — —-b) of art. 21 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 22 the Customs Authority will not allow the re-exportation of the goods liable to prejudice a right of intellectual property, nor shall they be subject to another Customs procedure until the pronouncement of a final and irrevocable judgment by the Court, i.e. until the settlement of law of the criminal complaint.
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Art. 22 was amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Chapter 6 international cooperation



Article 23 pursuant to this law the Customs authorities shall take account of international conventions in the field to which Romania is a party.


Article 24 General Direction Vamilor is authorized to proceed to the exchange of information and cooperation with other customs authorities on the issue of infringement of intellectual property rights.


Chapter 7 Sanctions in article 25, the following acts shall constitute offenses if, according to the criminal law, are not considered crimes, and shall be imposed as follows: (a)) with fine 30,000,000 50,000,000 lei lei to the deed of the importer, owner or, where appropriate, of the consignee of goods to enter, or to pull out of the country the goods determined as goods which affect a right of intellectual property through the final and irrevocable judgment; in this case the goods are subject. Where goods were sold, they will confiscate the amounts resulting from this sale;
  

b) with fine 30,000,000 50,000,000 lei lei at the failure by the rightholder of the obligation laid down in article 21. "". (2) within 15 days of the date of cessation of the right to protection of intellectual property rights claimed in the application;
  

c) with fine 10,000,000 lei lei to 20,000,000 incompliance with the obligation not to sell or alienate the goods taken, pursuant to article. 21 lit. b). — — — — — — — — — — — —-a) of article 1. 25 has been amended by ORDINANCE No. 59 of 22 august 2002, published in Official Gazette No. 643 of 30 august 2002.


Article 26 (1) laid down in this chapter Offences applicable to General rules and provisions on the establishment and sanctioning offences, except those relating to the reduction of the fine in the case of payment on the spot or at a specified time.
  

(2) Customs are found by Contraventiile minutes of offense ended art.7 185 of the code of customs. Sanctions are applied by customs personnel, according to job duties, the concluding minutes of offense.
  


Chapter 8 final provisions article 27 the provisions of this law are completed with the provisions of the customs code and the implementing regulation of the customs code.


Article 28 Application and any correspondence or documents concerning the intervention of the Customs authorities shall be submitted to the Directorate-General for Vamilor.


Article 29 (1) All measures in order to avoid any damage during the period of suspension of the operation of customs and retaining the goods relating to the holder of importing, exporting, or suspensive customs regime and cannot be put in charge of the Customs authorities if there is evidence of damage attributable to these authorities.
  

(2) all expenses incurred as a result of the withholding of goods liable to prejudice a right of intellectual property shall be borne by the applicant.
  


Article 30 (1) the Romanian State Office for inventions and Trademarks and the bodies of collective administration of copyright and related rights will provide the General Direction of the Vamilor list including holders of intellectual property rights register and information necessary for the identification of protected elements, as well as updating them.
  

(2) the State Office for Inventions and trademarks, Romanian Office for copyright and other institutions empowered to protect intellectual property rights and shall exchange information with the General Direction of Vamilor in order to implement this law.
  


Article 31 the Government will update the amount of the fines according to the inflation rate.


Article 32 (1) this law shall enter into force 30 days after the date of its publication in the Official Gazette of Romania, part I.
  

(2) In the same period the General Directorate of Vamilor will work out detailed rules on the application of the provisions of this law, which will be approved by decision of the Government.
  

This law was adopted by the Chamber of deputies in the meeting of 17 May 2000, in compliance with the provisions of art. 74 para. (2) of the Constitution of Romania.
The PRESIDENT of the CHAMBER of DEPUTIES ION DIACONESCU this law was passed by the Senate in session from October 16, 2000, in compliance with the provisions of art. 74 para. (2) of the Constitution of Romania.
p. Senate PRESIDENT CARLOS VALADY----