Romania: The Counterfeiting Scene In Romania After Its Accession In European Community

Enforcement Of Legal Provisions On Fighting Forgery And Piracy In Romania
Last Updated: 11 May 2007
Article by Ion Mocanu

Romania is currently in a very important moment of its history. Integration in the European Union was a dream come true.

The period of the last nearly 10 years was a difficult one for the Romanian people, for the functional structures of the state and for the political forces.

It was a period of hardships for everybody, which had a happy end.

However, we are fully aware of the fact that 1 January 2007 is a new beginning, the beginning of a new, at least just as difficult period, when Romania will have to prove to everyone else that it deserves to be accepted as a member of the European Union.

The perspective of accession to the EU and the measures taken in order to fulfil the requirements set influenced the Romanian society in all of the activity fields.

I believe that we will not surprise anyone by saying that the field of intellectual property was permanently in the attention of the government, which was materialised mainly in a complex law system, harmonised to a large extend with the autochthonous realities, the EU norms and the European standards in general.

In this context, specific to the pre-accession period, fighting forgery and piracy was a constant objective of all the entities interested in preventing and fighting this recrudescent phenomenon.

The topic of the enforcement of legal provisions governing the field of intellectual property protection, known in the entire world under the generic name of "enforcement", is already a constant topic for debate during different IP events carried out over the past years in Romania.

For this reason, for some of the participants these events, the debated topic could already be a boring one.

As far as we are concerned, we think that this is an exciting topic, the interest for it resulting from a certain truth:

the way legal provisions in the field of intellectual property are observed and enforced constitutes the most relevant indicator regarding the quality of these laws, and especially regarding the efficiency of the legal actions undertaken by the competent entities of the state in this respect.

We think that this topic can be approached from at least two main points of view, namely:

  • one approach that can be developed by any of the government officials having responsibilities in this field, such as the Public Ministry, the Romanian Police, the Border Police, Romanian Office for Patents and Trademarks(ROPTO), Romanian Copy Rights Office(ROCRO), the Romanian Customs Authority etc.;
  • another approach supported by holders of industrial property rights or their representatives interested in the Romanian market.

Without any doubt, any of the two approaches will contain many subjective elements commanded by own interests and by circumstances.

As for us, we intend to maintain, as much as possible, an objective position, being aware of the common, national interest in fighting and preventing forgery and piracy.

It is well known that since 1991 the field of protection of the intellectual property rights has been recording an exceptional development as compared to other fields of activity.

Necessary and significant changes occurred in the relevant legislative framework, changes imposed either by the lack of regulations or by the need to harmonise the existing laws with the European standards and requirements.

The efforts made in this respect by the authorised government bodies became more constant and concerted during the last few years preceding Romania’s accession to the European Union.

We shall not resume the list of all the prescriptive acts issued in Romania in the field of intellectual property starting with 1991, but we shall only state a few important moments in the overall evolution of this field.

Therefore, we remind:

  • The Cooperation Programme of the Romanian Government with the World Intellectual Property Organisation, executed in Bucharest in 2001;
  • elaboration of the national strategy in the intellectual property field (2003 – 2007)
  • emergency ordinance aimed at ensuring the observance of industrial property rights
  • constitution of the workgroup on intellectual property issues;
  • organisation in Bucharest of the Regional Congress regarding the fighting against forgery and piracy, with the participation of many key figures from the most important international bodies and associations in the field.

Beyond the specific regulations and events listed above there is a daily activity carried out by specialists of governmental bodies in charge with the protection of industrial property rights.

Although it is probably too early to draw objective conclusions regarding the consequences of the improvements to the legislative framework and the increased professionalism of the government specialists, we can affirm however that the evolution noticed over the past years was favourable, and allowed us to be optimistic about the future.

In this context, we have the professional and the moral obligation to make a few strictly declarative comments regarding the activities of the main State bodies in charge with the protection of intellectual property.

The specialists who carry out their activity within the structures of the Romanian Customs Authority should be mentioned, thanks to the results obtained during the last years, characterised by professionalism and efficiency.

There is a close relation between the Customs Authority and the Border Police; in our opinion, both institutions succeeded in developing a better collaboration, with notable results in fighting forgery and piracy.

In keeping with the above are the actions undertaken by the Romanian Police, which we must say made its presence felt more and more over the past few years, not only in Bucharest or other big cities in the country, but also in smaller localities which only a few years ago were "not covered" by its actions.

At the same time, we want to recall the beneficial initiative regarding the establishment of the specialised sections in the field of intellectual property, organised within the Courts, Courts of Appeal and the High Court of Cassation and Justice.

The results obtained by the State structures specialising in the field of forgery and piracy fighting are the most eloquent indicator as far as the efficiency of their activity is concerned.

As duly authorised representative in Romania of a large number of holders of industrial property rights, we are able to formulate value judgements – favourable in this case – regarding the way in which the Romanian Customs Authority, the Romanian Police and the Border Police participated, according to the obligations incumbent on them under the existing special regulations, in the fight against the recrudescent, including at global level, phenomenon of forgery and piracy.

Our cooperation with these structures is permanent and positive, and it often lead to results in favour of the holders of rights, which they appreciated accordingly.

Besides, the efforts made by the specialists of the above-mentioned institutions are finally quantified in a considerable contribution to the image capital Romania needs so much.

We deliberately left for the end of our account a few observations regarding the involvement of the Public Ministry in the field of protection of intellectual property rights.

In order to be rigorous, we must specify that the Public Ministry has an exceptional role, which results from its capacity of coordinator of the national strategy in the field of intellectual property.

Looking back to the year 2006, we can underline at least two of the ambitious actions of the Public Ministry, as aforementioned, but which we have the pleasure to recall, in chronological order this time, as follows:

  1. constitution of the workgroup on intellectual property issues;
  2. organisation in Bucharest of the Regional Congress on fighting forgery and piracy, with the participation of many key figures from the most important international bodies and associations in the field.

Regarding the Workgroup on intellectual property issues we must praise the success of the Public Ministry, which materialised a wish expressed many times over the last 7 years by many of the specialists in this field.

This Workgroup gives sufficient premises allowing joining forces in fighting forgery and piracy.

Even if this organisation is at its beginning and it must face the unavoidable difficulties of any beginning, we believe that the future will confirm the appropriateness of this initiative based upon its favourable results.

Given its statute, the Workgroup will ensure a natural cooperation both among its members and with other stakeholders.

We believe that in time all the existing functional asperities between different State institutions or between these institutions and the stakeholders in the private area will be eliminated.

The facts presented in this account seem to create an idyllic image of the field of protection of intellectual property rights in Romania.

Yet, things are quite different in reality.

The provision of a legislative framework appropriated for the Romanian reality, as well as for the specific realities of the European Union is an expected step meant to re-establish the normality that was brutally taken away buy an unfair history, 60 years ago.

Reaching such normality shall always be subject to the actual and effective protection of the intellectual property rights, which requires a constant and serious preoccupation for fighting the recrudescent phenomenon of counterfeit.

The creation of a specific legal framework is essential, but not sufficient for efficiently fighting counterfeit. Modern and efficient tools are required for this purpose, which function concordantly and have a mutual objective, all under one coordination, of the Romanian State.

Such tools, as I have already mentioned above are:

  • the Romanian Customs Authority;
  • the Romanian Police;
  • the Border Police;
  • the Public Ministry (Prosecutors at any level)
  • the Civil and penal specialised courts

Even in Romania there are several associations established from private entities whose purpose is to take action against counterfeit, however the efficiency of such process can only be assessed in relation with the results obtained by the above-mentioned State institutions.

In this context I must state that the actual problems of the owners of intellectual property rights in Romania result from the imperfect functioning of such entities, due to both objective and subjective causes (grounds), such as:

  • mentalities that didn’t keep up with the current realities;
  • incapacity to understand the phenomenon against which it should act, due to obvious professional deficiencies;
  • lack of a real interest in substantial aspects of the problem, resulting from a still modest financial co-interesting;
  • insufficient and poor quality infrastructure as compared with the complex daily cases of such institutions;
  • lack of real and efficient coordination of the steps undertaken by such institutions, which entails a parallel and, finally, inefficient approach of certain common interest issues.

In order to eloquently support these opinions I shall address three examples of recurrent issues.

  1. Inconsistent organisation of penal courts of law.

    Whereas for 3 years there have been intellectual property specialised panels in the civil courts, the penal courts do not have this kind on organisation yet.

    Subsequently, the penal cases do not benefit from a judgment compliant with the spirit of the special laws in the IP field, as most judges exclusively enforce the provisions of the penal codes, which leads to incompliant decisions.

  2. The Prosecutors request from the owner of the infringed right evidence which are trade secrets of goods such as medicines, cosmetics, fine liqueurs, cigarettes.

    Because the trademark owners refuse to disclose such confidential details, the penal proceedings are rejected and the accused persons are released, together with the counterfeit goods.

  3. The Romanian Police and the Border Police act, most of time, against the effect and not against the cause, which translates, in many cases, into small briefs, with modest results.

We found it appropriate to generally underline part of the good things that happened in the post-accession period in the field of intellectual property, because they can constitute an important foundation for future actions to be carried out further to the EU accession and considering the obligations Romania assumed when joining the family of European countries.

Certainly, there are still many things to be done in Romania in the field of intellectual property in order to reach the standards of the European Union in this field.

In our opinion, three institutions will play an important role in this respect.

I am talking about the Romanian Patent and Trademark Office and the Romanian Copyright Office, which, in their capacity of national authorities in their respective fields of activity, will continue to play the role of a legislative barometer meant to ensure a permanent harmony between the legislative framework and the everyday realities of the relevant market, in order to ensure the protection of intellectual property right.

Besides these two institutions, the Public Ministry will continue to play an important role in the coordination of activities specific to the protection of intellectual property rights at national level.

We hope that the Public Ministry succeeds in eliminating, within a reasonable term, some imperfections still present in the activity of certain public prosecutors, particularly at the regional level (given their reduced involvement in intellectual property proceedings in comparison to the competent courts in Bucharest).

We cannot close this account without mentioning the active role of the Romanian Chamber of Commerce and Industry, as well as the role of the Bucharest Chamber of Commerce and Industry, which constantly pursue the achievement of one of their common goals, that is increasing the information degree of the business environment regarding the importance of the protection and observance of intellectual property rights in Romania.

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.

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