The Law no. 202 on borderline measures for securing the intellectual property rights came into force on 21 December 2000.

The provisions set forth in the Law no. 202 are in line with articles 51 to 60 of the TRIP's Agreement and the Council regulation (EC) No. 3295/1994.

Romania is a Member State of the WTO and as such adhered to and ratified the TRIP's Agreement by means of the Law No. 133/1994, enacted on 1 January 1995.

The major aspects of the Law no. 202 on borderline measures for securing the intellectual property rights are briefly highlighted below.

1. The Authorities Involved In Adopting Customs Measures

  • The National Custom Authorities(NCA) imposes measures to prohibit the release for free circulation, import, export of pirated goods or goods infringing IP rights for a suspensive procedure of counterfeit and pirated goods.
  • Once such measure is pronounced, the Civil or Penal Courts are the judicial competent authorites with knowledge of claims that the owners of IP rights, who have obtained this first measure on the border, have to lodge a relevant claim in order to continue to apply the rules contained in the TRIP's Agreement. The jurisdictional procedure operates only between the right owner and the importer and does not involve any action by the Custom authorities.

2. The Subject Matter To Suspension By The Custom Authorities

Infringing copyright and related rights, trademarks, rights in geographical indications and industrial designs, infringing patents and supplementary protection certificates for patents.

The suspensive measures are not applicable to goods in transit.

3. Procedure Of Suspension

First Step:

To start the procedure, an application form must be completed and filed by the holder of respective IP right with the National Custom Authority.

Although not a requirement of filing an application, it is recommended to designate a local representative for liaison with customs.

It is required to provide customs with the following:

  • An appropriate evidence of industrial property right, e.g. the certificate of trademark or geographical indication or patent of invention or supplementary certificate;
  • -A summary of features of counterfeit or infringing goods, comprising their substantial features, appropriate for identifying and distinguishing these from genuine goods;
  • -Details of the authorized supply chains: manufactures, shippers and distributors.
  • The application for suspension is subject to paying a security deposit in the amount of 500 EUR;

Second Step:

The competent Custom Authorities shall examine the request and issue their decision within 10 working days. The positive decision for suspension remain valid provided that within the following 10 days (extendible for further 10 working days) the right IP holder lodges an action with the competent judicial authorities for interim injunction and for IP infringement action as well. If the IP holder does not fulfill such requirement, the custom clearing shall be effected.

Once the application has been accepted, the applicant is obliged to keep customs indemnified against liabilities and expenses incurred as a result of action taken in relation to the application.

The security is operational and effective as between the applicant and the Custom authorities and not in relation to the importer or any person interested in the goods.

4. Ex Officio Action

Custom may take Ex Officio action as meant in Article 58 of TRIP's if it appears prima facie evidence to the customs Authority that the goods are suspected of infringing IP rights.

The Custom Authority notifies the right holder on Ex Officio provisional action. If, within 3 working days the IP holder does not apply for suspensive procedure against the infringing IP rights and does not pay the official fee, the Custom Authority release the goods to the importer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.