Criminal and customs penalties for counterfeiting
CYBERGUN has registered its exclusive concession of brand licenses with the French Institut National de la Propriété Industrielle.
Any use of these brands, without the prior authorisation of CYBERGUN shall be considered an act of counterfeiting.
Similarly, Council Regulation (EC) No 241 of January 25, 1999 extended the scope of Customs action from strictly counterfeit goods to pirated goods.
This means all goods that are or embody copies made without the consent of the holder of the copyright or neighbouring rights, or the holder of a design or right or right to the model.
Action against the marketing of allegedly counterfeit goods and pirated goods is taken by both the Direction Générale de la Concurrence et de la Répression des Fraudes and the Direction Générale des Douanes et des Droits Indirects.
Penalties for acts of counterfeiting or the importation, exportation or production, are provided for in Law No. 94102 of February 5, 1994 amended by Law No. 2004-204 of March 9, 2004, which substantially raised the level of the criminal penalties provided for in Article L.716-9 of the Code of Intellectual Property Law.
Henceforth, the counterfeiting of any intellectual property rights and therefore trademarks is punishable by 4 years imprisonment and a fine of $ 400,000. When the crimes defined in Article L.716-9 of the Code of Intellectual Property Law are committed in organised groups, the penalties are raised to 5 years imprisonment
and a fi ne of $500,000.
Article L 716-10 of the Code of Intellectual Property Law, amended by Law No. 2004-204 of March 9, 2004 provides for a term of three years imprisonment and a 300,000 fi ne for the possession and/or sale of counterfeit goods and the reproduction or use of a counterfeit trademark.
All of the penalties stipulated in Articles L.716-9 to L.716-10 are doubled in the event of a second offence.
Under criminal law, these penalties are applicable to directors, in law or in fact, of companies whose business activity has been recognised and qualifi ed as counterfeiting. Furthermore, this crime can also be the responsibility of natural persons. Given that the French Code of Intellectual Property Law is subject
to the provisions of the French New Code of Criminal Law, the result is that the fine incurred by an entity can be as high as $ 2,000,000 or $ 2,500,000 depending on the case an whether the entity can also be punished by various prohibition measures or even dissolution.
Furthermore, importation or exportation of allegedly counterfeit goods and pirated goods is now a customs offence. The Law of February 5, 1994 led to a corresponding modifi cation of Article 428 of the Code of Customs Regulations, enabling the import or export of goods, presented under a counterfeit trademark, to be punished by the penalties applicable to customs offences, as provided for in the Code of Customs Regulations.
These offences are punishable by Article 414, which provides that the import or export, without a declaration, of counterfeit trademarked goods is punishable by :
a maximum 3-year prison sentence
confiscation of the fraudulent goods
confiscation of the means of transport
confiscation of the objects that served to mask the fraud
a fine of between one and two times the value of the object of the fraud
Article 432 bis of the Code of Customs Regulations provides, as an additional penalty, that the court may also decree:
temporary prohibition to conduct whatsoever business activity
driving licence suspension (duration of suspension not to exceed 3 years)
These penalties provided for in the Code of Customs Regulations are in addition to those provided for by Article L.716-9 of the Code of Intellectual Property Law (4 or 5 years imprisonment and $ 400,000 $ 500,000 in fines).
Lastly, it must be stated that the directors of companies prosecuted as a result of breaches of laws and regulations designed to fight against the import, export or marketing of goods presented under a counterfeit trademark are personally liable for the fines and customs penalties incurred, in addition to any possible prison sentences.
Within this context, and in order to defend its rights, that CYBERGUN has already undertaken several legal actions for counterfeiting.
Jacques LOISEAU Attorney at Law, Essonne, France
Specialist in Company Law - Graduate of the Ecole Nationale des Douanes
17,000 noncompliant toys seized
PARIS, 22 Dec 2005 (AFP). Speaking from a Customs warehouse in Paris, French Deputy Budget Minister Jean-François Copé, issued an urgent warning "to parents and to Santa Claus" about the dangers of noncompliant toys, over 17,000 of which had been seized by authorities in Paris on 8 December that year.
"We truly need to be careful at Christmas time and I really want to warn parents. When you buy toys illegally, you may think you're saving money but there can be real hazards for your children", emphasized Jean-François Copé who had come to congratulate the Customs officers who had seized the goods.
In the company of a senior Customs Officer, Jean-François Copé used some of the seized articles to demonstrate to the many journalists the dangers of toys that violate EC safety standards.
Mr Copé shot a hole in a cardboard box with an overpowered pellet gun and easily tore a plastic eye off of a stuffed cat which could have been toxic to children.
"Buying this kind of product encourages infringement and organized crime", added the Minister, who reminded the audience that buying and selling counterfeit products is severely punishable by law.
"One toy out of ten is counterfeit", according to Joël Mansuy, Deputy Director of Customs in Paris, who says that this trend is far from waning.
On 8 December2005, law enforcement officers seized 17,169 toys in a warehouse in northern Paris, including toy soldiers, mechanical cats and dogs, comics figurines and miniature cars infringing on brands such as Pokémon, Mercedes, Motorola and Warner Bros.
According to French Customs officials, the actual value of the goods seized is 1.2 million euros.
A dozen Customs officers raided a Wholesaler to seize the toys, which, "for the most part came from Southeast Asia", according to Joël Mansuy.
Out of 1,662,228 toys inspected in 2005 by the French Customs Department, 64% were judged "noncompliant and dangerous" according to Customs officials who reported seizing "nearly 80,000 counterfeit toys" in the first eleven months of the year.
