Are there criminal sanctions for infringement of any intellectual property rights, and if so, what are they and how are they invoked?
Copyright – Section 136 of the Copyright Act covers criminal offences, including the sale, hire, importation, distribution, or possession of infringing copies of infringing works. Offenders can be liable for a fine up to S$100,000 and/or imprisonment for a term not exceeding 5 years upon conviction.
Trade marks – Part VI of the Trade Marks Act covers criminal offences, including the counterfeiting of a trade mark, false application of a registered trade mark to goods or services, the making or possessing of article for committing offence, and the importing or selling of goods with falsely applied trade mark. Offenders can be liable for a fine up to S$100,000 and/or imprisonment for a term not exceeding 5 years upon conviction.
Infringers may face criminal sanctions up to 3 years of imprisonment and a fine of 300, 000 euros for copyright (IPC art. L.335-2-1), neighbouring rights (IPC art. L.335-4), designs (IPC art. L521-10), plant varieties certifications (IPC art. L.623-32-2) and patents (IPC art. L.615-1).
For trademarks, the sanction is 4 years of imprisonment and a fine of 400,000 euros (IPC art. L.716-9).
For manufacturing secrets, the sanction is 2 years of imprisonment and a fine of 30,000 euros (IPC art. L.621-1 and Labour Code art. L.1227-1).
For legal entities, the fine is equal to five times the amount set for individuals (Criminal Code art. 131-38) and the sanctions mentioned in article 131-39 of Criminal Code such as dissolution or closure shall apply.
R: Some infringements are crimes such as the violation of the exclusive granted by patents, utility models, topographies of semiconductor or designs. Counterfeiting, imitation or illegal use of trademarks may also be a crime. The violation or illegal use of designations of origin and geographical indications may also represent a crime. The fraudulent registration or abusive fraudulent maintenance of some rights can be a crime as well. Several copyright infringements are also considered crimes. Depending on the importance of the infringement, the violation of IP rights may only be considered a misdemeanours act, as well as the violation or illegal use of logos or commercial names. The practice of unfair competition acts is also considered misdemeanour.
This sanctions shall be invoked by the interested parties in Court or Arbitration proceedings. Parties may also submit complaints to custom authority or to other official inspection entities.
Yes, there are criminal sanction for infringement in India in connection with trade mark, copyright and patent in India for acts amounting to falsification/infringement. Further, an infringer may also be liable for search and seizure of the infringing goods.
Further, the offences under the Trade Marks Act, 1999 and the Copyright Act, 1957, by virtue of the First Schedule table II of the Code of Criminal Procedure, 1973, are cognizable offense and the registration of the trade mark is not compulsory for initiation of criminal action.
An infringer hence may be liable for criminal actions under Sections 482(Punishment for using false property mark), Section 483 (Punishment for counterfeiting a property mark used by another), Section 486 (Punishment for selling goods marked with a counterfeit property mark) and Section 488 (Punishment for making use of any such false mark) of the Indian Penal Code, amongst others.
The Criminal remedies are invoked by filing a complaint before the Court of competent jurisdiction.
- Specific criminal provisions are available to enforce copyright and trade marks.
- Copyright: Under Art. 66 of Law 2121/1993, any person who, in contravention of the provisions of this law or of the provisions of lawfully ratified multilateral international conventions on the protection of copyright, unlawfully makes a fixation of a work or of copies, reproduces them directly or indirectly, temporarily or permanently in any form, in whole or in part, translates, adapts, alters or transforms them, or distributes them to the public by sale or other means, or possesses with the intent of distributing them, rents, performs in public, broadcasts by radio or television or any other means, communicates to the public works or copies by any means, imports copies of a work illegally produced abroad without the consent of the author and, in general, exploits works, reproductions or copies being the object of copyright or acts against the moral right of the author to decide freely on the publication and the presentation of his work to the public without additions or deletions, shall be liable to imprisonment of no less than a year and to a fine of 2.900-15.000 EUR.
If the financial gain sought or the damage caused by the infringing act is "particularly great", the sanction is a minimum 2 years imprisonment and heavy fines. If the perpetrator has acted "by profession" or "at a commercial scale" or if the circumstances in connection with the perpetration of the act indicate that the perpetrator party poses a serious threat to the protection of copyright or related rights, the sanction shall be imprisonment of up to ten (10) years, as well as revocation of the trading license of the undertaking which has served as the vehicle for the act. The act shall be deemed to have been perpetrated "by profession", if the perpetrator has prior irrevocable criminal copyright conviction (imprisonment).
The above sanctions also apply against infringers of performers rights, phonogram, audiovisual works producers' rights, radio and television organizations' rights. They will also apply to any person who (i) uses or distributes, or possesses with the intent to distribute, any system or means whose sole purpose is to facilitate the unpermitted removal or neutralization of a technical system used to protect a computer program; (ii) manufactures or imports or distributes, or possesses with intent to distribute, equipment and other materials utilizable for the reproduction of a work which do not conform to the specifications determined pursuant to Article 59 of this Law; (iii) manufactures or imports or distributes, or possesses with intent to distribute, objects which can thwart the efficacy of the above-mentioned specifications, or engages in an act which can have that result; (iv) reproduces or uses a work without utilizing the equipment or without applying the systems specified pursuant to Article 60 of this Law; and (v) distributes, or possesses with intent to distribute, a phonogram or film without the special mark or control label specified pursuant to Article 61 of this Law.
Additionally, any person who proceeds to unauthorized temporary or permanent reproduction of the database, translation, adaptation, arrangement and any other alteration of the database, distribution to the public of the database or of copies thereof, communication, display or performance of the database to the public, extraction and/or re-utilization of the whole or of a substantial part of the contents of the database without the authorization of the author thereof, is punished by imprisonment of at least one 1 year and fine.
- Trade marks: Under Art. 156 of Law 4072/2012, any person who (i) uses a mark identical with or confusingly similar to a registered TM, (ii) uses a famous TM in violation of Article 125 paragraph 3 (c), with the intent to exploit or harm its reputation, (iii) intentionally puts into circulation, owns, imports or exports goods or provides services under a third party (iv) intentionally commits the acts of transiting counterfeit goods through Greece or importing such goods for re-export, uses the mark on genuine goods that the right holder intended to market as no-name goods, or removes the trade mark from genuine goods and markets them as no-name goods or under a different mark, is sanctioned with imprisonment of at least 6 months and fine of minimum 6.000 EUR.
If the benefit sought or damage threatened by the above acts is "particularly great" and there subsists exploitation on a commercial scale, or the perpetrator acts "by profession, the sanction is imprisonment of at least 2 and a fine of 6.000 to 30.000 EUR.
- For other IP rights, the Greek Criminal Code's provisions on forgery and/or fraud may be applicable. Indeed, forgery is generally invoked for the criminal protection of copyright, brands, registered and unregistered designs and unregistered signs.
- There are also, not particularly strict, criminal provisions for unfair competition violation.