Infringement of protected industrial rights

Legal definiton 

Section 269 of the Criminal Code:

(1) Whoever unlawfully infringes, in a manner that is not insignificant, on the rights to a protected invention, industrial design, utility model, or topography of a semiconductor product shall be punished by imprisonment for up to two years, disqualification, or forfeiture of the item.

(2) The perpetrator shall be punished by imprisonment for six months to five years, a financial penalty, or forfeiture of the item if:

a) the act mentioned in paragraph 1 has characteristics of a commercial or other business activities,

b) they obtain significant benefits for themselves or another by such an act, or

c) they commit such an act on a significant scale.

(3) The perpetrator shall be punished by imprisonment for three to eight years if:

a) they obtain large-scale benefits for themselves or another by the act mentioned in paragraph 1, or

b) they commit such an act on a large-scale.

Subjective aspect - intent

Infringement of protected industrial rights is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence. 

Defense

There are various defense strategies available. Given the elements of this criminal offence, the following questions may be relevant:

• How was the breach of rights supposed to occur?
  
• Was the person in question, for example, in the position of the manufacturer of the disputed goods, or were they merely facilitating its transport, or were they the end-user?
  
• What should have led the person in question to believe that a breach of rights was occurring?
  
• Was the subject right recorded in the registry?
  
• Could the person in question have anticipated the protection?
  
• Was the right that was allegedly infringed sufficiently identified in the criminal proceedings?
• What was the extent of the infringement supposed to be?
  
• Was the perpetrator's intent directed towards the decisive facts?