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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

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LEGE no. 202 202 of 13 November 2000 (* updated *) on certain measures to ensure the enforcement of intellectual property rights in customs clearance operations ((updated until 19 November 2003 *)
ISSUER PARLIAMENT




--------------- *) The initial text was published in the OFFICIAL GAZETTE no. 588 588 of 21 November 2000. This is the updated form of S.C. "Territorial Center of Electronic Computing" S.A. Piatra Neamt until November 19, 2003, with the amendments and additions made by: ORDINANCE no. 59 59 of 22 August 2002 ; LAW no. 664 664 of 16 December 2002 . The Romanian Parliament adopts this law + Chapter 1 General provisions + Article 1 (1) In application of this law, the terms used are defined as follows: 1. intellectual property right-copyright, related rights, the right to trademarks of registered product or service, the right to industrial drawings and models, the right to geographical indications, the right to patents of invention, the right of additional protection, under the law; 2. copyright-the right of intellectual property recognized to the natural person or individuals who created an original work of intellectual creation in the literary, artistic or scientific field, whatever the way of creation, the way or the concrete form of expression and independent of their value and destination, or other legal holders, legal or natural persons; 3. related rights-intellectual property rights other than copyright, enjoyed by performers for their own interpretations or executions, producers of sound recordings for their own records, broadcasting bodies and television for their own broadcasts; 4. the product or service mark-a sign susceptible to graphic representation, which serves to distinguish the products or services of a natural or legal person from those belonging to other persons. Distinguishing marks such as: the words, including the names of persons, the drawings, the letters, the figures, the figurative elements, the three-dimensional shapes, the shape of the product or its packaging, the colour combinations as well as the any combination of these signs; 5. drawing or industrial model-the new aspect 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, in cases where a quality, reputation or other determining characteristics may, crucially, be attributed to this geographical origin; 7. Patent of invention-title of protection that can be obtained for any invention, which has as its object a product, a process or a method, in all technological fields, provided that the invention is new, involve an inventive activity and be susceptible to industrial application; 8. complementary protection certificate-protection title that can be granted for any product protected on the territory of Romania by patent, as a drug or plant protection product, under the law; 9. holder of the right-holder of an intellectual property right, as well as any other person authorized to use this right or his legal representative; 10. registered trademark-any trademark registered in the National Register of Marks; 11. authorized person-the person to whom the right holder allowed him to use the intellectual property right; 12. legal representative-the person empowered by the holder of the intellectual property right to act, on his behalf, on the territory of Romania; 13. counterfeit goods: a) any goods, including its packaging, which bear, without authorisation, a product or service mark identical to a product or service mark registered for that goods or which cannot be distinguished, in its essential respects, a trade mark or a registered legal service and which, for that reason, infringes the rights of the proprietor of that trade mark; b) any product or service mark entrusted without authorization to be affixed to goods, even if it is presented separately, and which is in the same situation as the goods referred to in point (a). a); c) any goods bearing a mark identical to a protected product or service mark, or which is not substantially distinguished from it and which is liable to constitute a breach, by use in relation to goods or services different from those for which a product or service mark has been registered, causing confusion about the source or origin; d) any packaging bearing trade marks of counterfeit products, presented separately, under the same conditions as the goods defined in point (a). a); 14. marfuri-pirate-all copies manufactured without the consent of the holder of the right or legal person authorized by him in the country of production and who are executed, directly or indirectly, after a product bearer of copyright or of related rights or a right to industrial models and drawings, if such children were to be a violation of that intellectual property right. 15. goods affecting an intellectual property right: a) counterfeit goods; b) pirate goods; c) goods which affect a patent or a complementary certificate of protection; d) goods which affect the right to a geographical indication; 16. the retention of goods-the freezing of goods by the customs authorities in storage necessary, under customs supervision, at the customs commission or at the holder of a suspension customs procedure, under the conditions laid down by the customs legislation, for the duration established by the customs authority; 17. customs declarant-the person who prepares and submits the customs declaration in his own name or the person on whose behalf the customs declaration is drawn up by the trustee or commission. (. The goods concerned shall be treated as referred to in 15, as the case may be, any pattern or mold intended or adapted to the manufacture of a counterfeit trade mark, to goods bearing such a mark, to the manufacture of pirate goods or to the manufacture of goods which affect a patent, to a a complementary protection certificate or geographical indication, provided that the use of such patterns or dies is without prejudice to the right holder. ------------- Item 1 of paragraph 1. ((1) art. 1 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. Point a) (a) 13 13 of para. ((1) art. 1 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. Item 14 of para. ((1) art. 1 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. Item 1 of paragraph 1. ((1) art. 1 1 was amended by LAW no. 664 664 of 16 December 2002 published in MONITORUL OFFICIAL no. 930 930 of 19 December 2002. + Article 2 The provisions of this Law shall apply throughout the customs territory: a) goods intended to be placed under the definitive customs import or export arrangements; b) goods placed under a suspension or in free zones. ------------- Point b) art. 2 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 3 (1) The goods bearing a product or service mark with the consent of the holder of this trademark or geographical indication, which are protected by a patent or complementary certificate, are exempted from the provisions of this law. of protection, by a right of copyright or related right, by a right relative to an industrial drawing or model and which were manufactured with the consent of the rightholder, but marketed without his consent. (2) The following cases shall also be exempted from the provisions of this Law: a) goods which have been manufactured or bearing a mark or a geographical indication under conditions other than those agreed with the holder of the right; b) goods without commercial character, in the luggage of travellers or in parcels, under the regime applicable to travellers and other natural persons. ------------- Point b) of par. ((2) art. 3 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Chapter 2 Conditions for the submission of the application for intervention by the customs authorities to respect an intellectual property right + Article 4 (1) For the intervention of the customs authorities the holder of the right addresses a request to the General Directorate of Customs, mentioning its quality regarding the right of intellectual property, requesting the suspension of customs clearance and the to prejudice the protected right. (2) Upon termination of the protection of this intellectual property right on the territory of Romania the holder of the right is obliged to notify the General Directorate of Customs + Article 5 An application shall be submitted for each intellectual property right. ------------- Article 5 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 6 The application for the intervention of the customs authorities for the observance of an intellectual property right shall be submitted in writing and shall include the following elements of identification of authentic goods, bearing the right of intellectual property, and elements for the identification of the goods claimed: 1. Information on the applicant: a) the name and the seat of the b) in the case of natural persons, name, surname and address; c) in case of solicitation by proxy, its mention; d) indication of the number and date of the document issued by the State Office for Inventions and Trademarks or any other authorized institution, certifying the status of holder of the protected right on the territory of Romania; e) designation of the delegated persons to be contacted in case of retention of goods, indicating the telephone or fax number; f) signature and, where applicable, the stamp of the applicant 2. Information on the identification of authentic goods, carriers of intellectual property right: a) detailed description of the authentic goods; b) photographs of the product and/or any other graphic representation of the respective logo, if applicable; c) a sample of the product, if applicable; d) indication of the places of manufacture of goods, mentioning the name of the manufacturers and the premises; e) the name and seat of legal persons authorised to import or export such goods, as the case may be; f) any other elements of identification of the authentic goods. 3. Information on the identification of the goods claimed: a) a sufficiently precise description of the goods claimed to enable the customs authorities to recognise them; b) the presentation of photographs or any other graphic representations, if possible; c) presentation of samples of the product, if possible; d) indication of the countries of origin and/or provenance, if possible; e) indication of the name and main office of the firm and/or persons involved in the import or export of the goods claimed, if possible; f) the mode of transport used and the indication of the transport company involved, mentioning the name and address, if possible; g) the customs points in which the goods claimed may arrive; h) the time period during which the claimed goods may arrive. 4. The duration for which the intervention of the customs authority is requested, in order to respect the right of intellectual property, may be a maximum of one year from the date on which the application + Chapter 3 Measures in the competence of customs + Article 7 (1) Within 10 days from the registration of the application the General Directorate of Customs shall communicate to the applicant in writing the approval or, if applicable, the need to submit additional documents and information. (2) The solution to reject a request for intervention by the customs authorities for the observance of an intellectual property right shall be communicated to the applicant in writing, indicating its reasons. (3) Against the solution rejecting the application the applicant can make a complaint to the competent court. + Article 8 If the application is accepted, it becomes effective as of the date of submission by the applicant to the General Directorate of Customs of the proof of payment in its account of the equivalent in lei of the tariff of 100 euros, at the exchange rate established according to the Romanian Customs Code. ------------- Article 8 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 9 Amounts resulting from the application of art. 8 constitutes income of the customs authority, which is managed and used in extra-budgetary procedure, according to the legislation on the establishment of duties for customs benefits. + Article 10 On the basis of the effective application, the customs authorities shall suspend the customs clearance operation and retain the goods suspected of infringing an intellectual property right and shall communicate that measure to the applicant and to the declarant + Article 11 (1) If within 10 days from the date of communication to the applicant of the measure suspending the operation of customs clearance and detention it does not provide proof of the formulation of a civil action in the judiciary or of a criminal complaint and of the constitution a guarantee in favour of the Directorate-General for Customs, equivalent to the customs value of the goods retained, the customs authority shall not comply with the request for intervention, proceeding with customs clearance. (2) The guarantee established according to par. ((1) represents an insurance measure in order to cover any damage established by the final court sentence, to the importer or, as the case may be, to the owner or recipient of the goods, and to ensure the payment of expenses committed by keeping the goods under customs control. (3) This guarantee can be constituted in lei, by a monetary deposit or by a bank guarantee letter agreed by the customs authority. (4) In duly substantiated cases, at the request of the applicant the General Directorate of Customs may extend the term by a maximum of -------------- Alin. ((1) art. 11 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 12 In case of fulfilment of the conditions provided in 11 the customs authorities are empowered to extend the retention of the goods until the case is completed in court. + Article 13 Without prejudice to the confidentiality of the data and information, the customs authorities may allow the disputed parties to examine the goods retained and to take samples to determine, by analysis or tests, whether the goods bring A right of intellectual property. + Article 14 Where it has been established, by the expert authorised by the court, that the goods infringe an intellectual property right, the customs authorities may provide the holder of the right to copy of the documents which accompanied the goods. + Article 15 If the customs authorities have undertaken all the measures provided for by the customs regulations, but have not identified the goods claimed, the General Directorate of Customs shall not be liable for the applications approved and become effective. + Chapter 4 Ex officio actions of customs authorities + Article 16 The General Directorate of Customs, on the basis of the records of the State Office for Inventions and Trademarks and of the collective management bodies of copyright and related rights, transmitted to the customs authorities, may automatically initiate actions of suspension of the operation of customs clearance and detention if they are suspected of infringing an intellectual property right. + Article 17 (1) The General Directorate of Customs shall immediately notify, in writing, the holder of the right and the declarant, informing them of the measure of suspension of the customs clearance and detention operation, on the date and customs office of the respective goods. (. The holder of the right can expertise with his own means the goods suspected of infringing an intellectual property right. + Article 18 If within 3 working days from the receipt of the notice of retention of goods the holder of the right does not submit to the General Directorate of Customs the request for intervention of the customs authorities for the observance of an intellectual property right, including proof of payment of the amount referred to in 8 8, the customs authorities shall proceed to the lifting of the measure suspending the operation of customs clearance and detention. + Chapter 5 Destination of counterfeit or pirated goods + Article 19 (1) If by final and irrevocable decision of the court the action of the right holder is rejected or if the criminal complaint is not followed, the customs authority shall carry out the customs clearance of the goods. (2) The importer, owner or recipient of the goods may address the court against the right holder, requesting the coverage of the possible damage from the guarantee constituted according to the provisions of art. 11 11 para. ((1). Based on the final and irrevocable court decision the General Directorate of Customs executes the guarantee. ------------- Article 19 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 20 (1) If by final and irrevocable decision of the court is granted the action of the right holder, the customs authority shall proceed according to art. 25 lit. a). (2) In the situation referred to in par. (1) the customs authorities shall refund in full the security lodged by the applicant; the customs authority shall not bear interest ------------- Alin. ((1) art. 20 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 21 Goods confiscated according to art. 25 lit. a) may have the following destinations: a) destruction, according to the legal norms in force; b) if there is the written consent of the holder of the right and if they are goods suitable for the consumption or use of individuals, confiscated goods can be handed over free of charge, depending on the nature of the goods, to institutions in the field of protection social, non-profit organizations or associations with a humanitarian nature, associations or sports clubs or educational institutions. In this case the institution that takes over for consumption or use the goods undertakes not to market or dispose of them. ------------- Point b) art. 21 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 22 The customs authority will not allow the re-export of goods liable to prejudice an intellectual property right, nor will it subject them to another customs procedure until a final and irrevocable judgment by the court of judgment, respectively until the resolution according to the law of criminal complaint. ------------- Article 22 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Chapter 6 International cooperation + Article 23 In the application of this law, the customs authorities shall take into account the international conventions in which Romania is a party. + Article 24 The Directorate-General of Customs is authorised to exchange information and to cooperate with other customs authorities on the issue of infringements of intellectual property rights. + Chapter 7 Sanctions + Article 25 It constitutes contraventions the following facts, if, according to the criminal law, they are not considered crimes, and are sanctioned as follows: a) with a fine of 30,000,000 lei to 50,000,000 lei the deed of the importer, its owner, as the case may be, of the recipient of the goods to introduce or remove from the country the goods established as goods that affect a right of property intellectual, by final and irrevocable court decision; in this case the goods are confiscated. If the goods have been sold, the amounts resulting from this sale will be confiscated; b) with a fine of 30,000,000 lei to 50,000,000 lei non-fulfillment by the holder of the right of the obligation provided in art. 4 4 para. (2), within 15 days from the date of termination of the protection of the intellectual property right invoked in the application; c) with a fine of 10,000,000 lei to 20,000,000 lei failure to fulfill the obligation not to sell or to alienate the goods taken under the conditions of art. 21 lit. b). ------------- Letter a) a art. 25 was amended by ORDINANCE no. 59 59 of 22 August 2002 published in MONITORUL OFFICIAL no. 643 643 of 30 August 2002. + Article 26 ((1) The contraventions set out in this Chapter are applicable to the general rules and provisions on the establishment and sanctioning of contraventions, with the exception of those regarding the reduction of the fine in the case of its payment on the spot term. (2) Customs records shall be found by the minutes of contravention concluded according to the provisions of art. 185 of the Customs Code of Romania. The sanctions shall apply to customs personnel who, according to their duties, conclude minutes of contravention. + Chapter 8 Final provisions + Article 27 The provisions of this Law shall be supplemented by the provisions of the Customs Code of Romania and the Implementing Regulation of the Romanian Customs Code + Article 28 The application and any correspondence or documents concerning the intervention of the customs authorities shall be submitted to the General Directorate of Customs + Article 29 ((1) All measures to avoid any damage during the suspension of the operation of customs clearance and detention of goods concern the holder of the import, export or customs duty suspension operation and cannot be charged to the authorities customs if there is no evidence of damages attributable to these authorities. ((. All expenses incurred by the retention of goods liable to prejudice an intellectual property right shall be the responsibility of the applicant for the application. + Article 30 (1) The State Office for Inventions and Trademarks and the collective management bodies of copyright and related rights shall provide the General Directorate of Customs with the list of holders of intellectual property rights record and information necessary to identify the protected elements and update them. (2) The State Office for Inventions and Trademarks, the Romanian Copyright Office and other institutions empowered to protect intellectual property rights will exchange information with the Directorate-General of Customs for the implementation of the in application of this Law. + Article 31 The government will update the amount of fines according to the inflation rate. + Article 32 (1) The present law shall enter into force 30 days from the date of its publication in the Official Gazette of Romania, Part I. (2) At the same time, the General Directorate of Customs will develop the methodological norms on the application of the provisions of this law, which will be approved by Government decision. This law was adopted by the Chamber of Deputies at the meeting of May 17, 2000, in compliance with the provisions of 74 74 para. (2) of the Romanian Constitution. CHAMBER OF DEPUTIES PRESIDENT ION DIACONESCU This law was adopted by the Senate at the meeting of October 16, 2000, in compliance with the provisions of art 74 74 para. (2) of the Romanian Constitution. p. SENATE PRESIDENT, CONSTANTIN DAN VASILIU -------