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Law No. 344 Of 29 November 2005 On Measures To Ensure Respect For Intellectual Property Rights In Customs Clearance Operations

Original Language Title:  LEGE nr. 344 din 29 noiembrie 2005 privind unele măsuri pentru asigurarea respectării drepturilor de proprietate intelectuală în cadrul operaţiunilor de vămuire

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LEGE no. 344 344 of 29 November 2005 on certain measures to ensure the enforcement of intellectual property rights in customs clearance operations
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 1.093 1.093 of 5 December 2005



The Romanian Parliament adopts this law + Chapter I General provisions + Article 1 The provisions of this Law shall apply to goods liable to prejudice an intellectual property right, which: a) enter or leave the territory of Romania, including in/from free zones or free warehouses; b) they are declared to the customs authority for placing under a permanent or suspensive customs procedure or for re-exportation; c) they are placed under a suspension procedure; d) is under customs supervision, in any other situations; e) have not been declared at the entrance or exit of the country and are discovered by the customs authority during customs checks carried out according to the law; f) entered the private property of the state by confiscation or abandonment to the customs authority. + Article 2 (1) This law does not apply to goods which are the object of the protected intellectual property right and which have been manufactured with the consent of the right holder, but are without its consent in one of the situations to which it does reference art. 1. (. This Law shall not apply to the goods referred to in paragraph 1. ((1), which are manufactured or are protected by another right of intellectual property, under conditions other than those agreed with the holder of the right. (3) This law does not apply to goods in travellers ' luggage or parcels sent or received by individuals of a non-commercial nature, goods falling within the limit allowed by law to be exempt from the payment of import rights and for which there are no material indications that the goods would be part of a trade traffic. + Article 3 (1) For the purposes of this law, the following terms and expressions shall have the following meaning: 1. intellectual property right: copyright, related rights, the right to protected product or service marks, the right to industrial drawings and models, the right to geographical indications, the right to patents invention, the right to additional protection certificates, the right to plant varieties; 2. copyright: the right of intellectual property recognized to the natural person or to individuals who created an original work of intellectual creation in the literary, artistic or scientific field, whatever the way of creation, its way 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 and producers of audiovisual recordings, for their own records, and broadcasting and television organisations, for their own programmes and programme services; 4. brand of product or service: 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, and any combination of these signs; 5. industrial drawing or 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 object a product or a process, in all technological fields, provided that the invention is new, involve an inventive activity and be susceptible to industrial application; 8. additional protection certificate: protection title that can be granted for any product protected on the territory of Romania by patent in force and which, before placing on the market, was analyzed as a drug or as a product plant health; 9. variety patent: title of protection which may be granted for a variety of protected plants; 10. the right holder: a) the holder of an intellectual property right or his representative; b) any other person authorized to use this right or its representative; 11. counterfeit goods: a) any goods, including its packaging, which bear, without authorisation, an identical trade mark or which is not distinguished in its essential aspects by a trade mark or service mark registered for the same type of goods and which, for that reason, infringes the rights of the proprietor b) any symbol of a product or service mark (including logo, label, self-adhesive, brochure, instructions for use or warranty document bearing such a symbol), even if presented separately and which are in the same situation with the goods referred to in point a); c) any packaging bearing brands of counterfeit products, presented separately, under the same conditions as the goods defined in lett. a); 12. pirate goods: 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; 13. goods affecting an intellectual property right: a) counterfeit goods; b) pirate goods; c) goods which affect the rights of a patent or an additional protection certificate or a geographical indication or a patent. (2) The goods referred to in par. ((1) pt. 13, as the case may be, any pattern or mold intended or adapted to the manufacture of such goods which prejudice a right of intellectual property, provided that the use of such patterns or dies is without prejudice to the holder of the right. + Chapter II Application for intervention of the customs authority + Section 1 Measures prior to the application for intervention of the customs authority + Article 4 ((. Where an application for intervention is not made or during the period of acceptance thereof, the customs authority may suspend the customs clearance operation and/or retain for a period of 3 working days the goods in one of the situations to which art is referred to. 1, if he has the suspicion that these goods affect an intellectual property right. (. The customs authority shall notify the holder of the right and the declarant/holder of the consignee of the goods if the latter are known. (3) The term provided in par. ((1) flows from the date on which the holder of the right received the notification. (4) If within the period provided in par. (. the holder of the right shall not lodge an application for intervention, the customs authority shall lift the measure of confinement of the goods and/or grant the free of customs, if the other legal conditions (5) In the situation referred to in par. ((1), the customs authority may require the holder of the right to provide information on the protected right, before it is notified of a possible infringement of an intellectual property right. + Section 2 Submission and analysis of the application for intervention of the customs + Article 5 For the intervention of the customs authority, the holder of the right shall submit a written request to the National Customs Authority, the model of which shall be established by the rules for the application + Article 6 (. The application for intervention shall contain the following mandatory information: a) the identification data of the right holder; b) an accurate and detailed technical description of the original goods and photographs thereof; c) any specific information that the holder has in relation to the manner of infringement of his or her right; d) name and address of the contact person designated by the right holder. (2) In so far as they are known, the right holder will provide any other information he holds, such as: a) the value of the original goods before charging; b) the place where the goods or their destination are located; c) details for the identification of the lot or parcels; d) the date of arrival or departure of goods e) means of transport used; f) the country or the manufacturing countries and the routes used; g) the technical differences between the original goods and those likely to affect an intellectual property right; h) the name and seat of legal persons authorized to import, export or distribute the goods. (3) The application for intervention shall be accompanied by the following documents: a) the statement of the right holder that he assumes responsibility to all the persons involved, in the event that the civil action in the judiciary or the criminal complaint does not take its course due to an action or omission of the right holder or if the court determines that the goods are without prejudice to an intellectual property right; by the same declaration, the holder of the right accepts to bear all the costs arising from the keeping of the goods under customs supervision, including expenditure on the destruction of goods; b) proof that it is the right holder (4) If the request for intervention does not contain the mandatory information provided in par. (1) and the documents provided in par. ((3), the National Customs Authority may reject this request by a reasoned decision stating the remedy; a new application may be submitted only after its completion accordingly. (5) The National Customs Authority shall consider the request and shall communicate its decision in writing to the right holder, within 30 working days from the date of receipt of the request for intervention. (6) Against the decision rejecting the application for intervention of the customs authority the holder of the right may make a complaint to the competent administrative court. (7) The holder of the right is obliged, within 15 days from the termination of the protection of the intellectual property right on the territory of Romania, to notify the National Customs Authority of this. + Section 3 Acceptance of the intervention request + Article 7 (1) If the National Customs Authority accepts the request, it also establishes the intervention period of up to one year. ((2) Upon expiry of this period and subject to payment by the holder of the right of all costs arising from this law, at his written request, the National Customs Authority may extend the intervention period by no more than a year. + Article 8 Art. 5 5 and 6 shall apply accordingly to requests for extension of the intervention period. + Chapter III Conditions under which the intervention of the customs authority + Article 9 On the basis of the request for intervention accepted and, where appropriate, after consulting the right holder, the customs authority shall retain the goods liable to prejudice an intellectual property right and/or suspend the customs clearance operation, notifying in writing this measure both to the right holder and to the declarant/holder/recipient of the goods. + Article 10 (. Where the customs authority has retained the goods liable to prejudice an intellectual property right and/or has suspended the customs clearance operation, the goods may be destroyed, without following the procedure provided for in art. 11, if the following conditions are met cumulatively: a) the holder of the right informs the customs authority in writing, within 10 working days from the date of receipt of the notification provided in art. 9, that the goods retained shall affect an intellectual property right; in the case of perishable goods, the term shall be 3 working days; b) the holder of the right shall submit to the customs authority, within the period prescribed a), the written consent of the declarant/holder/recipient of the goods as abandoning these goods, for destruction; this agreement may be transmitted to the customs authority directly by the declarant/holder/recipient of the goods. (2) The condition provided in par. ((1) lit. b) is presumed to be fulfilled if within the period provided in par. ((1) lit. a) the declarant/holder/recipient of the goods does not expressly object, in writing, to the detention and/or suspension of the customs clearance operation or destruction of the goods. (3) The customs authority shall compulsorily take samples of the goods to be destroyed, in accordance with the customs regulations, to be kept for the purpose of constituting evidence in court, if necessary. (4) The expenses of destruction shall be borne by the right holder. (5) If the declarant/holder/recipient of the goods disputes the measure of detention and/or suspension of the customs clearance operation or opposes the destruction of the goods, the procedure provided for in art. 11. + Article 11 (. If, within 10 working days from the date of receipt of the notification of the detention of the goods and/or the suspension of the customs clearance operation, the holder of the right does not prove the formulation of a civil legal action or a criminal complaint, and If the provisions 10 are not applicable, the customs authority has the release of goods and/or the granting of free customs, if the other legal conditions are met. (2) In duly justified cases, at the written request of the right holder, the National Customs Authority may extend the term provided in par. ((1) no more than 10 working days. (3) In the case of perishable goods, likely to prejudice an intellectual property right, the period referred to in paragraph 1. ((1) is 3 working days, without the possibility of being extended. (4) If the holder of the right makes a civil action in court or a criminal complaint, the customs authority shall retain the goods until the court decision remains final and irrevocable. + Article 12 (. In the case of goods liable to prejudice the rights of industrial designs, patents, supplementary protection certificates or patent certificates, the declarant/holder/recipient of the goods shall have the possibility of obtaining the release of the goods and/or the granting of free customs, with the lodging of a security, if the following conditions are met: a) the holder of the right to have submitted to the National Customs Authority proof of the formulation of a civil legal action or a criminal complaint; b) the measure of seizure or freezing of goods, before the expiry of the deadline provided for in art. 11 11; c) all customs formalities have been fulfilled, according to the law. (2) The guarantee provided in par. ((1) must be sufficient to protect the interests of the proprietor of the right and shall be constituted under the rules of application of this law; according to law (3) Where civil action in the judiciary or criminal complaint has been made other than on the initiative of the proprietor of the right to industrial designs, patents, supplementary protection certificates, or of the variety patents, the guarantee will be made redundant if, within 20 working days from the date of notification to the holder of the right, he does not prove the initiation of a legal procedure on the goods referred to in par. ((1). (4) The term provided in par. ((3) may be extended by no more than 10 working days. + Article 13 (1) In order to determine whether an intellectual property right has been affected, the customs authority shall communicate to the holder of the right, at his written request, information on the name and address of the declarant/recipient/holder the goods, origin and country of dispatch of goods liable to prejudice a right of intellectual property, if the customs authority has such information. (2) The right holder who receives the information provided in par. (1) may use them only for the purpose of applying the provisions of art. 10-12. ((3) The use of this information under conditions other than those provided in par. (2) attracts the liability of the holder of the right and suspension of intervention. (4) If the holder of the right continues to violate the obligation provided in par. ((2), the customs authority may refuse to extend the intervention period. + Article 14 (. The customs authority shall allow the holder of the right and declarant/recipient of the goods to examine the goods liable to prejudice a right of intellectual property, for which the measure of detention and/or suspension of the customs clearance operation. ((2) At the express request of the right holder, the customs office may take samples and make them available to it, only to be analysed for the purpose of using the result of the analysis in court. (3) When the samples are not destroyed as a result of the analysis, the holder of the right will return them after making it, as far as possible before the release of the goods and/or the release of the customs release. (4) All expenses and responsibilities related to the analysis of these samples shall be the responsibility of the right holder. + Chapter IV Provisions applicable to goods affecting an intellectual property right + Article 15 Goods for which it has been proven that they affect an intellectual property right cannot enter or leave the territory of Romania or in/from free zones or free warehouses, cannot be imported, exported, re-exported, placed under a regime Suspension customs. + Article 16 (1) The goods referred to in art. 15 may have the following destinations: a) destruction, according to the legal norms in force; b) teaching free of charge, depending on the nature of the goods, to institutions in the field of social protection, non-profit organizations or associations with humanitarian character, associations or sports clubs, educational institutions or individuals who have suffered from disasters, if there is written consent of the holder of the right and if they are goods fit for the consumption or use of natural persons, provided that they are not marketed. (2) Application of para. (1) does not exclude the exploitation by the holder of his rights by judicial means, according to the law. + Chapter V Contraventions + Article 17 (1) It constitutes the following facts and is sanctioned as follows: a) the deed of the declarant/recipient/holder of the goods to introduce or remove from the territory of Romania the goods established as prejudice to an intellectual property right; b) failure by the holder of the right of the obligation provided in art. 6 6 para. ((7); c) failure to fulfill the obligation not to market the goods taken under the conditions of art. 16 16 para. ((1) lit. b). (2) Contraventions are sanctioned with a fine of 3,000 lei (RON) to 10,000 lei (RON). (3) In the case provided in par. ((1) lit. a), the goods covered by the contravention are confiscated, and if they can no longer be identified, the offender is obliged to pay their consideration; the limitation period for the application of the sanction in the case of this contravention flows from the date on which it is established, under the conditions of this law, that the goods affect an intellectual property right. (4) Sanctions may also be applied to legal persons. (5) Contraventions shall be found and the sanctions shall be applied by minutes concluded according to the provisions of art. 185 185 of Law no. 141/1997 on the Customs Code of Romania, with subsequent amendments and completions, on customs personnel who, according to their duties, have the status of ascertaining agent of contraventions. + Article 18 Contraventions provided for in art. 17 the provisions of Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions. + Chapter VI Responsibility of the customs authority and the right holder + Article 19 (1) The acceptance of an application for intervention does not entitle the holder of the right to request a compensation or damages to the customs authority, if the goods referred to in art. 1 were not discovered by the customs authority. ((2) The retention of goods liable to prejudice the intellectual property rights and/or suspension of the customs clearance operation, under the conditions of this law, does not incur the liability of the customs authority towards persons who may invoke a right the goods referred to in art. 1, for any damage suffered by them as a result of the intervention of the customs authority. + Article 20 Expenses related to the storage, handling and keeping of goods under customs supervision, as well as expenses of destruction or other similar expenses are in charge of the right holder. + Chapter VII Transitional and final provisions + Article 21 ((1) For applications for intervention under the provisions of the Law no. 202/2000 on certain measures to ensure the enforcement of intellectual property rights in customs clearance operations, as amended, the intervention period shall remain valid until the expiry of the approved period, if the holder the right submits the declaration provided in 6 6 para. ((3) lit. a). ((2) Measures to detain goods and suspend customs clearance operations initiated by the customs authority, according to Law no. 202/2000 , as amended, will be completed according to the provisions of this law. + Article 22 The provisions of this Law shall be supplemented Law no. 141/1997 on the Customs Code of Romania, with subsequent amendments and completions. + Article 23 The State Office for Inventions and Trademarks, as well as the Romanian Copyright Office will provide the customs authority with the information necessary to identify the protected rights and their holders. + Article 24 (1) The present law shall enter into force on 60 days from the date of publication in the Official Gazette of Romania, Part I. (2) On the date of entry into force of this Law, the Law no. 202/2000 on certain measures to ensure the enforcement of intellectual property rights in customs clearance operations, published in the Official Gazette of Romania, Part I, no. 588 588 of 21 November 2000, as amended. + Article 25 Within the period provided in art. 24 24 para. (1), the National Customs Authority will develop the norms for the application of this law, which will be approved by Government decision. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT ADRIAN NASTASE SENATE PRESIDENT NICOLAE VACAROIU Bucharest, November 29, 2005. No. 344. -----------