GOODS LEGISLATION

The novelty of this law consists in the simplification of procedures for retention of counterfeit or pirated goods, eliminating the intervention of the court, as well as certain obligations relating to taxes and guarantees quite expensive, that were put in charge of those applying for the intervention of customs authority for the retaining of counterfeit goods.

By any counterfeiting, and piracy, is violating certain intellectual property rights, whether copyright, such as CDs, whether trademark rights, patent, geographical indications, plant variety or geographical name for alcoholic drinks. From the beginning it should be noted that this law refers to goods, namely products, for resale and not the products that those who pass through customs have for their personal use. Customs may detain goods likely to be counterfeit only on basis of the demand for intervention made by the holder of the rights violated by counterfeiting or piracy. According to law, for crimes related to mark is required prior complaint of the holder of violated rights, so the customs authority may not act by itself, ex officio, making criminal complaint against the importer of counterfeit goods.

Therefore, if the holder of intellectual property rights does not operate by applying the intervention of the customs authority, it is obliged to allow counterfeit goods entering the country.

If he has information that on the market are brought goods that counterfeit his goods, the holder of intellectual property rights on goods may make a request for intervention from the customs authority, which means, basically, a Customs authority to withhold any goods likely to prejudice the rights of the holder. Even if he has no doubts that on the market would circulate counterfeit products of its brands, the holder of these brands can preventively forward a request for intervention of the customs authority.

In the absence of this request for intervention, customs and can act on its retaining counterfeit goods. But it must notify the holder of intellectual property rights related to such goods. If it does not apply intervention in three days, Customs is obliged to give free market.

It was eliminated the fee for processing the application for intervention submitted to the National Customs Authority by the holder of intellectual property rights. This fee was the equivalent of 100 euros for each application filed. But a holder may have the interest of submitting more applications and then the amount increases considerably.

Secondly, it has been removed the guarantee that holders of intellectual property rights had to submit to the customs authority for each retention of goods likely to be counterfeit. This guarantee is equal to the value of the goods retained. According to General Customs Authority, the guarantee was an impediment, because they were holders who have had lots of retention counterfeit goods. Or, the submission of this security is blocking some substantial money funds, until the court established if the goods are counterfeit or not. There have been cases in which there have been over 100 gods for a single owner. There have been cases where, although the Customs Service notified the holders of intellectual property rights that are custom goods that affect their rights, because of the guarantees they have neither wanted to act nor to go to court. So customs had to allow the market entry of those goods.

Law 344/2005 introduces a new procedure, so the counterfeit goods may be destroyed within 10 working days without getting to court if the holder of intellectual property rights notifies the Customs that the detained goods infringe on the rights and the importer is not writing an opposition against the detention of its goods. Basically, the importer tacitly recognizes that the merchandise is counterfeit. In the old regulations, in all cases, the owner had to go to court, to make a civil or a criminal complaint. Now you get to court only if the importer makes written opposition. But, mostly, the importer of the tracked goods rather abandons counterfeit goods at customs and gets the rest of the stuff that is not counterfeit.

With the new regulations it was widened the scope of the law for other customs than the import, export and customs suspension. This means that customs worker can apply the law on all goods in the area of customs supervision, for example in the case of transhipment, on goods that have not passed yet from the custom, on the undeclared or those abandoned, etc..

With these regulations it has been completely taken over the European action directed against customs control of goods likely to affect the intellectual property rights and measures to be taken against goods that violated these rights. But after accession will be wide scope of requests for intervention by the customs administrations, in the sense that no matter what customs administration in the EU countries has the application, interventions for retaining counterfeit goods can be made in any member country specified in the request.

According to Law 344/2005, goods which affect a right of intellectual property goods are counterfeit, pirate-goods and goods which affect the rights of a patent or a supplementary protection certificate or a geographical indication or a certificate variety.

Counterfeit goods are defined by law as follows:

a) any goods, including packaging, or those that bare, without authorization, a mark identical or not quite different in its essential aspects from a brand product or service legally registered for the same type of merchandise and, therefore, violates rights of the trademark holder;

b) any symbol of a brand product or service (including logo, label, self-adhesive, brochure, instructions for use or guarantee document which bears such a symbol), even if it is presented separately and are in the same situation with Goods provided at point. a);

c) any package that bears the marks of counterfeit goods, presented separately under the same goods as defined in point. a). In the meaning of the law, pirated-goods are all the copies made without the consent of the holder of the right or the person duly authorized by him in the country of manufacture and which are made directly or indirectly, from a good that has copyright and related rights or of a right on industrial models and designs, if the achievement of such copies would constitute an infringement of intellectual property in question.