Infringement of trademark rights and other designations

Legal definiton 

Section 268 of the Criminal Code:

(1) Whoever circulates products or provides services unlawfully marked with a trademark to which the exclusive right belongs to another, or a mark that is interchangeable with it, or for this purpose offers, mediates, manufactures, imports, exports, or otherwise procures or stores such products for themselves or others, or offers or mediates such a service, shall be punished by imprisonment for up to two years, disqualification, or forfeiture of the item.

(2) The same sentence shall be imposed on anyone who, for the purpose of obtaining economic benefit, unlawfully uses a trade name or any designation interchangeable with it, or circulates products or services unlawfully marked with a designation of origin or geographical indication or a designation interchangeable with it, or for this purpose offers, mediates, manufactures, imports, exports, or otherwise obtains or stores such products or services for themselves or others.

(3) Whoever commits the act mentioned in paragraph 1 or 2 shall be punished by imprisonment for six months to five years, a monetary penalty, or forfeiture of the item if

a) they obtain a significant benefit for themselves or others by such an act, or

they commit such an act on a significant scale.

(4) Whoever commits the act mentioned in paragraph 1 or 2 shall be punished by imprisonment for three to eight years if

a) they obtain a large-scale benefit for themselves or others by such an act, or

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

Subjective aspect - intent

Infringement of trademark rights and other designations 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 trademark registered?
  
• Could the person in question have anticipated the protection?
  
• Did the trademark have sufficient distinctive character?
  
• Was the right that was allegedly infringed sufficiently identified in the criminal proceedings?
• Was the perpetrator's intent directed towards the decisive facts?