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PART 8 PROVISIONS GOVERNING OFFENSES PUNISHABLE WITH IMPRISONMENT OR FINES; SEIZURE ON IMPORT OR EXPORT Chapter 1 Provisions Governing Offenses Punishable with Imprisonment or Fines 143. Punishable Infringement of Signs (1) Any person who, in the course of trade, unlawfully 1. uses a sign contrary to Section 14(2), No. 1 or 2; 2. uses a sign with the intention of taking advantage of or of impairing the distinctive character or the repute of a mark which has a reputation contrary to Section 14(2), No. 3; 3. affixes a sign contrary to Section 14(4), No. 1, or offers for sale, puts on the market, stocks, imports or exports a packaging or wrapping or a means of marking contrary to Section 14(4), No. 2 or 3, insofar as third parties would be prohibited from using the sign (a) under Section 14(2), No. 1 or 2; (b) under Section 14(2), No. 3, and the act is committed with the intention of allowing the distinctive character or the repute of a mark which has a reputation to be taken advantage of or to be impaired; 4. uses a designation or a sign contrary to Section 15(2); or 5. uses a designation or a sign contrary to Section 15(3) with the intention of taking advantage of or of impairing the distinctive character or the repute of a commercial designation which has a reputation, shall be punished by imprisonment of up to three years or by a fine. (1a) Any person who infringes the rights of the proprietor of a trade mark protected under the statutory provisions of the European Community shall be liable to the same penalties insofar as a statutory order under subsection (7) refers to this penal provision in connection with a specific offense. (2) If the offender acts on a commercial basis, he shall be punished by imprisonment of up to five years or by a fine. (3) The attempt to commit such an offense shall be punishable. (4) Where the cases referred to in subsections (1) and (1a) are applicable, the offense shall only be prosecuted upon request unless in the opinion of the prosecution authority ex-officio intervention is required in view of the particular public interest in criminal prosecution. (5) Objects implicated in the offense may be confiscated. Section 74a of the Penal Code [Strafgesetzbuch] shall apply. Where the claims to destruction referred to in Section 18 are upheld in proceedings under the Code of Criminal Procedure with regard to the compensation of the injured party (Sections 403 to 406c of the Code of Criminal Procedure), the provisions on confiscation shall not be applicable. (6) In the case of conviction, the sentence shall be published if the injured party so requests and if he has a legitimate interest in so doing. The scope and nature of the publication shall be determined in the judgment. (7) The Federal Ministry of Justice shall have power to determine by statutory order and without the consent of the Council of the Länder the offenses punishable as criminal offenses under subsection (1a) where required in order to implement the protection of trade marks afforded by the statutory provisions of the European Community. 144. Punishable Use of Indications of Geographical Origin (1) Any person who, in the course of trade, unlawfully uses an indication of geographical origin, a name, an indication or a sign 1. contrary to Section 127(1) or (2), also in conjunction with subsection (4) or a statutory order under Section 137(1), respectively; or 2. with the intention of taking advantage of or of impairing the reputation or the distinctive character of an indication of geographical origin contrary to Section 127(3), also in conjunction with subsection (4) or a statutory order under Section 137(1), shall be punished by imprisonment of up to two years or by a fine. (2) Any person who unlawfully uses, in the course of trade, a geographical indication or a designation of origin protected under the legal provisions of the European Community shall be punished in the same way insofar as an ordinance under subsection (6) refers to this penal provision in connection with a specific offense. (3) The attempt to commit such an offense shall be punishable. (4) In the case of conviction, the court shall order that the unlawful marking of the objects which are in the possession of the convicted person be removed or, if this is not possible, that the objects be destroyed. (5) If a sentence is awarded, its publication shall be ordered if this is necessary in the public interest. The scope and nature of the publication shall be determined in the judgment. (6) The Federal Ministry of Justice shall have power to determine by legal ordinance and without the consent of the Council of the Länder the offenses punishable as criminal offenses under subsection (2) insofar as this is necessary in view of implementing the protection of geographical indications and designations of origin provided in legal provisions of the European Community. 145. Provisions Governing Fines (1) An administrative offense shall be deemed to be committed by any person who, in the course of trade, uses for marking goods or services, in identical or counterfeit form, 1. armorial bearings, flags or other emblems of a State or the armorial bearings of a locality or an association of communities or an association of other communal entities within the country within the meaning of Section 8(2), No. 6; 2. official signs and hallmarks within the meaning of Section 8(2), No. 7; or 3. other signs, seals or designations within the meaning of Section 8(2), No. 8. (2) An administrative offense shall be deemed to be committed by any person who, willfully or negligently, 1. contrary to Section 134(3), also in conjunction with subsection (4), (a) does not permit the entering or inspection of business premises and real properties, sales outlets or means of transport; (b) does not display the agricultural products or foodstuffs to be inspected so as to make it possible for the inspection to be carried out in due form; (c) fails to provide the necessary assistance in the case of inspections; (d) does not permit the taking of samples; (e) does not submit business records or does not submit them in full or does not permit their examination; or (f) fails to supply information or does not supply it correctly or fully; or 2. contravenes an ordinance issued under Section 139(1) provided it refers to this provision governing fines in connection with a specific offense. (3) The administrative offense may be punished by a fine of up to DEM 5,000 in the cases referred to in subsection (1), and by a fine of up to DEM 20,000 in the cases referred to in subsection (2). (4) In the cases referred to in subsection (1), Section 144(4) shall apply mutatis mutandis. Chapter 2 Seizure of Goods on Import or Export 146. Seizure in Case of Infringement of Rights to a Sign (1) Goods which unlawfully bear a mark or a commercial designation protected by this Law shall be subject, upon request by the holder of the rights and against his security, to seizure by the customs authorities, on import or export, in those cases where the infringement is obvious and unless Council Regulation (EC) No. 3295/94 of 22 December 1994 laying down measures to prohibit the release for free circulation, export, re-export or entry for a suspensive procedure of counterfeit and pirated goods (OJEC No. L341, p.8) applies. This provision shall apply in trade with other Member States of the European Union as well as the other Contracting States of the Convention Concerning the European Economic Area only insofar as controls are carried out by the customs authorities. (2) Where the customs authorities order a seizure, they shall advise the person entitled to the right of disposal and the petitioner thereof without delay. The origin, quantity and place of storage of the goods, together with the name and address of the person entitled to the right of disposal, shall be communicated to the petitioner. The secrecy of correspondence and mail (Article 10 of the Basic Law [Grundgesetz]) shall be restricted to that extent. The petitioner shall be given the opportunity to inspect the goods where such inspection does not constitute a breach of commercial or trade secrecy. 147. Confiscation; Opposition; Release of Goods Seized (1) Where no opposition to the seizure is made, at the latest within two weeks of service of the notification under Section 146(2), sentence 1, the customs authorities shall order confiscation of the seized goods. (2) If the person entitled to the right of disposal opposes seizure, the customs authorities shall inform the petitioner without delay. The petitioner shall be required to declare to the customs authorities without delay whether he maintains the request under Section 146(1) in respect of the seized goods. (3) If the petitioner withdraws his request, the customs authorities shall lift the seizure without delay. If the petitioner maintains his request and submits an executable court decision ordering the impounding of the seized goods or limitation of the right of disposal, the customs authorities shall take the necessary measures. (4) Where neither of the cases referred to in subsection (3) is applicable, the customs authorities shall lift the seizure on the expiry of two weeks after service of the notification on the petitioner under subsection (2). Where the petitioner can show that a court decision under subsection (3), sentence 2, has been requested, but has not yet been received, the seizure shall be maintained for a further two weeks at the most. 148. Competence; Remedies (1) The request under Section 146(1) shall be submitted to the Regional Finance Office [Oberfinanzdirektion] and be effective for two years unless a shorter period of validity has been requested. The request may be repeated. (2) The cost of official acts related to the request shall be charged to the petitioner in accordance with Section 178 of the Fiscal Code [Abgabenordnung]. (3) Seizure and confiscation may be opposed by the legal remedies allowed by the fixed penalty procedure under the Law on Minor Offenses [Gesetz über Ordnungswidrigkeiten] in respect of seizure and confiscation. The petitioner shall be heard in the review proceedings. An immediate appeal shall lie from the decision of the Local Court [Amtsgericht]. The immediate appeal shall be heard by the Higher Provincial Court. 149. Damages in the Case of Unjustified Seizure Where the seizure proves to have been unjustified from the beginning and if the petitioner has maintained the request under Section 146(1) in respect of the seized goods or has not made a declaration without delay (Section 147(2), sentence 2), he shall be required to compensate the damages that seizure has occasioned to the person entitled to the right of disposal. 150. Seizure under Regulation (EC) No. 3295/94 In proceedings under the Regulation mentioned in Section 146(1), Sections 146 to 149 shall apply mutatis mutandis unless otherwise provided by the Regulation. 151. Seizure in the Case of Unlawful Marking with Indications of Geographical Origin (1) Goods which unlawfully bear an indication of geographical origin protected by this Law or by provisions of the European Community shall be subject, on import, export or in transit, to seizure for the purpose of removing the unlawful marking where the infringement is obvious. This provision shall apply in trade with other Member States of the European Union as well as the other Contracting States of the Convention Concerning the European Economic Area only insofar as controls are carried out by the customs authorities. (2) The seizure shall be carried out by the customs authorities. The customs authorities shall also order the measures necessary in order to remove the unlawful marking. (3) If the orders of the customs authorities are not complied with or if the removal is impracticable, the customs authorities shall order confiscation of the goods. (4) Seizure and confiscation may be opposed by the legal remedies allowed by the fixed penalty procedure under the Law on Minor Offenses in respect of seizure and confiscation. An immediate appeal shall lie from the decision of the Local Court. The immediate appeal shall be heard by the Higher Provincial Court.

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