Newly Enacted Romanian Customs Laws

By Andra O. Musatescu  Bio  Email

Measures to be taken at the border for the suspension by customs authorities of release, into domestic circulation, of counterfeit and pirated goods. Romanian Perspective. 

Introduction 

Many economists believe that strong intellectual property laws encourage strong economic growth, and that the level of a country’s economic development can be correlated with its level of intellectual property protection.[1] 

Strong intellectual property laws also have substantial economic benefits, and help to attract technology and the development of indigenous industries.[2] 

The importance of intellectual property rights is also demonstrated by the existence of a multitude of international agreements and, even more, by the fact that such rights were included in the Uruguay Round of Trade Related Aspects of Intellectual Property Rights (‘TRIPS’)[3]. TRIPS establishes a number of principles for the protection and enforcement of intellectual property rights, in effect creating their legal framework.[4] 

This present article is intended to give a brief description of the most recent laws enacted in Romania in the intellectual property field (the “Laws”)--laws which are a consequence of Romania’s obligations assumed under the TRIPS agreement. 

Law No. 202 of November 13, 2000 on measures to ensure compliance with intellectual property rights in customs procedures (“Law 202” or the “Law”) 

On November 21, 2000, Law 202 was published in the Romanian Official Gazette. The Law took effect on December 21, 2000. 

Law 202 covers copyrights and its related rights, registered trademarks for goods and services, registered utility models and industrial designs, rights over indications of origin and rights over invention patents.  

From the above list it can be seen that Law 202 relates only to registered trademarks and does not apply to well-known trademarks that are not registered in Romania, even though the existing Law No. 84/1998 on trademarks and indications of origin (“Law 84”) does not require that well-known trademarks in Romania be registered in this country.  

The Law defines, inter alia, counterfeited goods and pirated goods and identifies the procedure and competent authorities to prevent these goods from entering into the country (the “Procedure”).  

The Procedure is initiated either by a request filed with the General Direction of Customs as the competent institution by the owner of the intellectual property right (the “Application”) or by the General Direction of Customs itself – ex officio. 

If the Procedure is initiated on the basis of the Application, within ten (10) days from the filing of the Application, the General Direction of Customs shall respond to the applicant either by accepting the Application or by advising the applicant that more information is needed. 

The Law does not provide for the same time limit in the case of a rejection of the Application, which, according to the interpretation of the Romanian laws in force, is thirty (30) days from the Application date. 

Furthermore, within ten (10) days from the General Direction of Customs’ acceptance of the Application, the owner of the counterfeited or pirated goods must pay a deposit of 500 euro and file with the General Direction of Customs evidence that a court action has been filed with the competent Romanian courts. 

If approved by the General Direction of Customs, the suspension of release into domestic circulation of the counterfeit or pirated goods will remain in effect until a final decision from the competent Romanian Court is issued. 

In the event the General Direction of Customs initiates the Procedure, on the basis of documents received from the Romanian Intellectual Property Institutions, the General Direction of Customs shall inform the owner of the intellectual property right of its decision. 

The owner of the intellectual property right shall, within three (3) working days from the date the owner was informed, file the Application, and the Procedure continues as presented above. 

The suspension of the import of counterfeited or pirated goods into the country can last up to one year. The one-year time period can be extended until the decision of the competent court becomes final. 

If the court rules in favor of the owner of the intellectual property right, the General Direction of Customs confiscates the counterfeited or/and pirated goods and fines the importer, the owner or the person to whom the counterfeited or pirated were destined. 

If the court considers the goods were not counterfeited or pirated, the General Direction of Customs allows the goods to enter the country. 

The importer, the owner, or the person to whom the counterfeited or pirated are destined, can file a court action against the owner of the intellectual property right who challenged the import and lost, claiming damages resulting from the import delays. 

Government Decision No. 301 of March 8, 2001 for the approval of the Methodological Norms for applying Law 202 (“GD 301”)

GD 301 was published on March 22, 2001 in the Romanian Official Gazette and entered into force the same day.

GD 301 provides for a list of documents that must be presented to the General Direction of Customs and contains as annexes the exact forms that must be completed in order to commence the Procedure for preventing the release into domestic circulation of the allegedly offending goods at customs until a definitive court decision is obtained.

Conclusion

In conclusion, the two (2) newly enacted laws create the legal framework for preventing the release into domestic circulation of counterfeit or pirated goods, giving the owners of the intellectual property rights in the legitimate goods the right to apply for such a measure.

The downside of the Laws and this Procedure is that it leaves the decision to accept or reject the Application filed by the owners of the intellectual property rights in the hands of the General Direction of Customs.

In our view, it will be difficult for an organization which is not specialized in intellectual property matters, even if it co-operates with Romanian Intellectual Property Institutions, to determine whether to proceed with such an important procedure as preventing the import of allegedly pirated or counterfeited goods.

In this regard, it will be quite interesting to see how the General Direction of Customs actually applies the provisions of the Laws in practice.


[1] See, O’Regan M, “The Protection of Intellectual Property, International Trade and the European Community: the Impact of the TRIPs Agreement of the Uruguay Round of Multilateral Trade Negotiations” [1995] 1 Legal Issues of European Integration; see also Rapp R.T. and Rozek R.P., “Benefits and Costs of Intellectual Property Protection in Developing Countries” [1990] 24(5) JWT 75, at 76.

[2] Ibid. For example, research and development will not occur without patent protection, especially in the pharmaceutical industry where the research costs are very high and time consuming.

[3] As is well known, GATT 1954 did not contain any substantial provisions related to intellectual property rights. It was not until relatively recently that it was realised that the policies of international trade and intellectual property protection were closely related. This was because of the rapid growth of international trade in products which had a high intellectual property content. The first attempts to discuss intellectual property as a trade issue were made during the Tokyo Round of GATT negotiations in the late 1970s, but without finalisation.

[4] Worthy J., “Intellectual Property Protection after GATT” [1994] 5 EIPR 195


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