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Criminal enforcement of Trademarks -liable to public prosecution (ex-officio crime

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Intellectual property enjoys the same protection as physical property. It is protected by a multitude of fundamental rights, international rights, constitutional rights and judgement of the ECJ and ECHR.
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    Criminal enforcement of Trademarks – liable to public prosecution (ex-officio crime) Erich Auer 11.9.2019 Intellectual property enjoys the same protection as physical property. It is protected by a multitude of fundamental rights, international rights, constitutional rights and judgement of the ECJ and ECHR. 1  In a constitutional state, the prosecution of property infringements is the responsibility of the state (prosecutor, executive (police, etc), in particular when property is stolen. Intentional trademark-infringement is a crime (in most cases “ex-officio”) in EU member states i.e. one which has to be prosecuted by the authorities, whether reported or not. The fines imposed by the State on trademark criminals will in turn benefit the State (the Community). The trademark, which is designed by the legislator as an absolute, real legal position, is not only an individual legal property, but also a universal legal property (!) 2   1   Cf.   in   particular    Auer  ,   (Property) ‐ Milestones   regarding   (European)   Trademarks,   2017 ‐ 2019.   2   Cf.   also   Pfaffinger  ,   Rechtsgüter   und   Verhältnismäßigkeit   im   Strafrecht   des   geistigen   Eigentums,   p.   126;   Feiler  ,   Subjektive   Zurechnung   im   Markenstrafrecht,   2011,   p.   49;   Käbisch ,   Markenschutz   im   Strafrecht,   2006,   p.   356;      Trademark law also fulfils supraindividual protection purposes. 3   As a universal legal property, the legal system is to be protected. The aim is to protect society, the general public, the public or the market/trade against the use of a trademark in a way that is contrary to its function, e.g. deceptive or misleading.  As a universal legal property, the legal community as a whole, the public/economy or market participants are to be protected, since the sale of goods or services infringing a trademark results in market confusion damage or damage to the confusion of srcin ("fraud against the public"). The protection of legal property, in particular the protection of universal legal property, is again the main task of criminal law. It is therefore also in the general public interest that the unfair market conduct of trademark robbers is sanctioned efficiently and effectively by the criminal authorities. In this respect, it is also codified that anyone (i.e. the public) can file a trademark prosecution application. Trademarks and trademark-law is also interlinked with (unfair) competition-law. Unfair competition law is one body of law that is used to assure that competition among firms is fair; one aspect of this law is the law of trademarks (cf. Radack, David V., Trademark Infringement and Dilution Aspects of Unfair Competition Law, JOM, 48 (10) (1996), pp. 69.) The purpose of trade mark law is to protect undistorted competition . (Cf. ECJ, C-371-02 Björnekulla Fruktindustrier AB, Slg. 2004, I-5791, Rec. 20.) also   Heutz ,   Das   Spannungsverhältnis   zwischen   den   Intellektualgüterrechten   und   der   Kartellrechtlichen   Kontrolle   marktbeherrschender   Unternehmen,   p.   65.   3   Cf.   Pfaffinger  ,   Rechtsgüter   und   Verhältnismäßigkeit   im   Strafrecht   des   geistigen   Eigentums,   S.   102.      In Case C-104/01 4  the European Court of Justice affirmed in recital 48: It is settled case-law that trade mark rights constitute an essential element in the system of undistorted competition which the EC Treaty seeks to establish and maintain (see Case C-10/89 HAG II [1990] ECR I-3711, paragraph 13, and Case C-63/97 BMW [1999] ECR I-905, paragraph 62). The rights and powers that trade marks confer on their proprietors must be considered in the light of that objective. In the UK the CMA 5  is taking action against infringements of competition law. Trademark law is linked to competition law. The prosecution of trademark criminals must therefore be pursued by the state in the same way as antitrust violations and other competition violations.   Why then is there no state authority in the UK to take (ex-officio) action against criminal trademark infringements? It should also been drawn the attention to the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (also known as "(IPR) Enforcement Directive" or "IPRED" 6  especially article 3 Article 3 General obligation .1 Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellec- tual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable 4   http://curia.europa.eu/juris/document/document.jsf?text=&docid=48237&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2113884   5   https://www.gov.uk/government/organisations/competition ‐ and ‐ markets ‐ authority   6   https://eur ‐ lex.europa.eu/legal ‐ content/EN/TXT/PDF/?uri=CELEX:32004L0048R(01)&from=EN      time-limits or unwarranted delays. 2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.
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