Scope of authorities and manner of procedure in the Market Inspection Sector
The Market Inspection Sector, as a part of the Ministry of Trade, Tourism and Telecommunications, performs inspection supervision over the production and circulation of goods infringing Intellectual Property Rights (trademark, design, patent, petty patent, geographical indication of origin, topography of semi-conductor products, copyright and related rights).
Apart from the general authorization, prescribed by the Law on Government Administration, for all the bodies, which perform tasks of inspection supervision, and apart from the general authority of the market inspectors prescribed in the Law on Trade and Law on Inspection Supervision and implemented in the procedure initiated ex officio, the Market Inspection Sector also has:
– special authority for the purpose of the efficient protection of IP rights undertaken ex officio or at the request of the holder of IP rights;
– rights and duties in the framework of the inspection supervision under the enforcement of the Law on Optical Discs, implemented in compliance with that Law.
Implementation of special authorities for the purpose of efficient protection of intellectual property rights
The Law on Special Powers for the Purpose of Efficient Protection of Intellectual Property Rights (“Official Gazette RS”, no 46/06, 104/09 and other laws), the ex officio procedure and the procedure at the request of the holder of IPR are prescribed.
The holder of IP rights is the original holder of IPRs or his legal follower in title, including professional associations, or organizations for the collective management of rights (CMO) in compliance with the legislation regulating IP rights.
Procedure ex officio
If by direct insight, the violation of IPR is established, the market inspector has the authority to temporarily seize the goods infringing the right, as well as to pass the measure of temporary prohibition of the performance of activities infringing IP right. He immediately informs the IP holder inviting him to initiate the procedure for the protection of his right before the competent court in the term of 15 days from the date of the receipt of the information. In the same term, he has the obligation to inform the Market Inspection about the initiated procedure or the temporary measure passed by the court. If the IPR holder does not inform the Market Inspection about the initiated procedure or does not furnish the decision of the court passing the temporary measure. If there are no reasons for the final seizure and destruction of the goods, the temporarily seized goods are returned to the person from whom they have been confiscated and the act temporarily prohibiting the performance of activity is no longer valid.
In addition to the mentioned temporary measures, when acting ex officio, the Market Inspection has the possibility to take the samples of goods in order to examine the existence of the infringement of IP right and secure evidence about it. It has the authority to file the application to the competent public prosecutor`s office, or the misdemeanor court, and to present other evidence necessary to establish the infringement of intellectual property rights. At the request of the Market Inspection, when the goods have been temporarily seized for establishing the IP infringement, the holder of IP right shall offer assistance, including technical expertise, equipment and premises.
Procedure at the request of Intellectual Property Rights holder
The Market Inspection acts in compliance with the written request of the IP right holder, that can be filed at the address: Ministry of Trade, Tourism and Telecommunications, Market Inspection Sector, 11000 Belgrade, 22-26 Nemanjina Street.
The request can be individual, if it refers to one particular shipment /certain quantity of goods, or general, if it refers to all quantities of certain goods in the proposed time.
The request contains in particular: the description of goods; data on the basis of which infringing goods can be recognized; proof that the person filing the request is the holder of IP rights in relation to those goods; and proposal of the term in the course of which the undertaking of measures is demanded. In addition, the request can contain data on the basis of which the shipment or package can be recognized; data on the place where the goods are stored or its supposed destination; name of the producer, importer, owner or holder of goods; supposed data of arrival or dispatch of goods; data on the vehicle used for transport; samples or photographs of goods; record of the copyright protected work or the subject matter of related rights.
Decision is passed about the filed request, and decision on the adopted request is furnished to the departments of Market Inspection for further proceedings.
Based on the decision on the adopted request, the temporary seizure of goods corresponding to the description from the request can be performed, inviting the person that filed the request to initiate procedure for the protection of his right before the competent court in the term of 15 days. In that term, he should inform back the Market Inspection Sector about the initiated procedure, or the temporary measure determined by the court. If the holder of right does not furnish the decision of the court determining the temporary measure, temporarily seized goods will be returned to the person from whom they have been confiscated, except in the case when there are reasons for the final seizure and destruction of goods.
Rights and duties in the framework of the inspection supervision prescribed by the Law on Optical Discs
Based on the Law on Optical Discs (“Official Gazette RS”, no 52/11), Market Inspection has the right and duty to:
– Check the licensee’s premises and perform control of activities taking place in them;
– Check the issued license;
– Check optical discs, production parts (stamper), production equipment and raw material for the production of optical discs and make their listing;
– Check recordings, business books, contracts and other documents, as well as proof on the right of reproduction, or recording of the material protected by the copyright or related right on optical discs or production parts (stamper);
– Check and establish if the production parts (stamper), or molds, including spare parts and production equipment, are adapted for the placing of production codes contained in the license;
– Check and establish if the optical discs and production parts (stamper) are marked by a suitable production code;
– Check if the records are kept as prescribed by the law;
– Temporarily keeps, till the decision of the Court, optical discs, production parts (stamper), raw material or equipment for production, or multiplication of optical discs, if doubt is expressed that the Law has been infringed which is described as a transgression or violation of some other law, that is described as the economic transgression or criminal act of IP rights infringement, and to inform about it the holder of IP right, or organization (CMO);
– Take certain number of samples of optical discs, or production parts (stamper) necessary for the proof in the procedure before the competent court;
– Order by a decision the destruction of confiscated optical discs, or production parts (stamper), when apart from the undertaken activities for the location of the owner, the owner or holder remains unknown;
– Take samples of optical discs for checking and dispatch of data to international organizations for the protection of intellectual property rights.
Market Inspection Sector
Lidija Stojanović, Assistant Minister – Chief Market Inspector