The Anti Piracy Act – "APA" ("ProduktpirateriegesetzPPG") became effective on 7 July 2001 (Federal Law Gazette I 2001/65). It is based on the Council Regulation (EC) No 3295/94 of 22 December 1994 (OJ 1994 No L 341, 30 December 1994 p 8 – 13) as amended by Council Regulation (EC) No 241/99 of 25 January 1999 (OJ 1999 No L 27, 2 February 1999 p 1 – 5) (the "EC-Regulation").

Before the APA became effective the violation of intellectual property rights ("IP-rights") was difficult to prosecute. The commencement of criminal proceedings were necessary even for the forfeiture of small numbers of counterfeited goods (e.g. watches, jewelleries or cosmetic products). The supplier and/or the receiver – if known at all - of the goods were mostly located outside Austria. Therefore the criminal investigations included also investigations by the Interpol. Such investigations caused expenses to the Republic and most of the cases never ended in a prosecution of the offender. The proceedings were stayed and the application for forfeiture proceedings before the District Court became necessary. The time period from the first seizure of the goods until their destruction was about one and a half years. Furthermore the owners of IP-rights had to face administrative, court and attorney's fees.

Since 7 July 2001 counterfeited goods fall under the new law. The person who registers the goods at the Customs Authorities or the person who is authorized to dispose of the goods as well as the owner of the IP-right are informed by the Customs Authorities if goods are seized. The person who registered the goods or who is authorised to dispose of the goods has the right to object against the seizure of the goods within five days. If no objection is filed the goods will be destroyed by the Customs Authorities.

If an objection is filed the owner of the intellectual property right has another five days to commence criminal proceedings. Only then the time consuming procedures before the criminal court start.

If no objection is filed, the owner of the IP-right has to bear the costs for the proceedings before the Austrian Customs Authorities including the costs for the destruction of the goods, which are minimal.

Fiscal Authorities may impose a fine up to EUR 15,000 on a person who imports the goods violating IP-rights

  • into the EU,
  • enters them into free circulation,
  • places them under a suspensive procedure,
  • places them into a free zone of control or free warehouse,
  • exports or re-exports them

provided that the goods are found to be counterfeited goods by a criminal or civil court. In case this person acts only negligently the fine is up to EUR 4,000.

Comment:

The merits of the APA which is based on respective EU law need no further appraisal. No criminal or civil court proceedings are required if no objection was filed by the person who registered the goods with the Customs Office. It is expected that counterfeited goods will be destroyed without much administrative red tape. The Austrian Customs Authorities informed that if the person who registered the goods is a forwarding agent and objects the seizure, he has to provide the name of his customer. This will help to conduct criminal proceedings more efficiently.

Source: Federal Law Gazette I 2001/65

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