Article appearared on IFLR August 2005

The legal system for protection of industrial property rights in Greece entails provisions for criminal prosecution and sanctions to be applied in infringement cases. Trademarks, Patents and Unfair Competition rules, in conjunction with provisions on crimes of common criminal law, provide an adequate protection framework, which may be considered as a significant deterrent for potential infringers. In this regard, criminal litigation may often prove more efficient and worth pursuing even before any civil action. Applicable penalties include imprisonment and/or monetary fines. The rules are explained in brief below.


Criminal Protection under Greek Trademark law
Greek trademark Law provides for criminal penalties to be applied in cases of willful trademark infringement (articles 28 - 30 of Law 2239/1994 on Trademarks, hereinafter "the Law"). The protection under the Law is in full compliance with provisions of uniform European law, harmonized through First Council Directive 89/104/EEC.

According to article 28 of the Law, whoever
•  knowingly and willfully forges or uses a counterfeit trademark,

•  knowingly and willfully affixes to his/her undertaking's goods a trademark, which belongs to another proprietor

•  knowingly and willfully imitates, in whole or in part, without alteration, a trademark, which belongs to another proprietor, or makes use of such a trademark, with intent to cause confusion or to mislead as to the source of origin of the goods involved

•  knowingly and willfully sells, offers or puts in the market goods bearing a trademark that constitutes an alteration or imitation of another trademark

•  uses as a trademark the emblems and other symbols, including religious symbols, of the Greek State and any other Greek Authority

iis punished by imprisonment of at least three (3) months and/or by a monetary fine of at least 587 Euros.

The above provisions apply for service marks as well.

Article 29 of the Law provides for the prosecution of persons liable for infringement (in above cases a - d), only after the filing of a complaint by the proprietor of the trademark. The complaint must be filed within 3 months from the knowledge of the act, which constitutes a trademark violation. In above case (e), prosecution shall be ex officio.

According to article 30 of the Law, the Court, apart from imprisonment and/or monetary fine, shall order the publication of a summary of the condemning decision in a wide publicity, on the convicted party's expenses. It is to be noted that publication, which is a supplementary penalty in relation to the penalty of imprisonment and/or monetary fine, is always ordered by the Court in cases of wilful trademark infringement.


Enforcement of decisions

The maximum sentence for violation of article 28 of the Law is five years imprisonment and a fine of 14.673,50 Euros, which is the maximum sentence under Greek Penal Law for committing a misdemeanour. However, in practice, the Courts do not impose a sentence of more than one year of imprisonment, especially in cases when someone is convicted for the first time. In this case, the minimum sentence of three months of imprisonment is usually imposed. In addition, the enforcement of the condemning decision is always being suspended, when someone, who is convicted for the first time, is punished by imprisonment of no more that two years. Enforcement anyway is always being suspended until final judgement, when the convicted party files an appeal, which according to Greek Law of Penal Procedure has a suspensory effect. In practice, even after the final judgement, the sentence of imprisonment (for no more than three years) does not end up to an actual imprisonment, but it is, as a rule, convertible to a monetary fine.

Requisites for Conviction for Trademark Infringement


As it derives from the above (points a - d), Greek trademark Law provides for the conviction of the parties accountable for infringement, only if it is established that they have knowingly and willfully traded in counterfeit products. Thus, it is necessary for the proprietor of the trademark to establish the required circumstances where knowledge will be beyond doubt.

According to relevant recent case law, in order to establish that the defendant sold counterfeit products knowingly and willfully, it is crucial that evidence is provided to the Court in respect of the following:

•  That he/she had already sold counterfeit products before and he/she had been notified by the beneficiary of the trademark or by a customer on this matter.

•  That, although he/she had been notified, he/she did not refrain from such infringing acts and continued to sell counterfeit products.

•  That he/she has a long experience in the relevant market and as a result he/she is able to identify and distinguish the counterfeit from the genuine ones at the time of their purchase and sale

•  That he/she steadily refrains from cooperating with the authorized distributors of the products

•  Significant differences that may exist in the prices of invoices issued by different distributors for the same products.


Prosecution Procedure - Acceleration

As mentioned, Greek trademark Law provides for the prosecution of infringers only after the filing of a complaint by the proprietor of the trademark. In ordinary circumstances, from the time of filing until actual prosecution, the procedure may prove time consuming. It is to be mentioned, however, that the filing of a criminal complaint may operate per se as a deterrent for the infringer.

There are special rules of criminal prosecution that provide for a swift prosecution procedure within 48 hours from the commitment of a crime. To this effect, ordinary and time consuming criminal proceedings may be avoided. In particular: The Law ( Greek Code of Criminal Procedure, art. 417 in conjunction with article 242 pars 1 and 2), provides that if a person is arrested either at the time he or she commits a criminal offense (i.e. in the act) or no longer than 24 hours following the day when such person committed the act, he may be brought before the Prosecutor; the Prosecutor must immediately press charges and bring the person to trial on the same or the next day; then the Court may decide for adjournment of the Court Hearing by a maximum of 15 days. This is the so-called "fragrante delicto" procedure.

For the "fragrante delicto" procedure to be implemented, f ollowing the filing of the complaint, the police will be authorized to conduct a raid of the site of the alleged infringement, make a search and seize any counterfeit goods that may be found. The police, subsequently, forwards all documents and seized goods to the competent Prosecutor. The latter subsequently files criminal charges against the individuals allegedly responsible for the infringement. The Court will hear the case immediately, or within 15 days at the latest, on the condition that the infringer was arrested during the raid. When the offense is attributed to the commercial activities of a business entity, its representatives are considered the persons liable to be brought to trial.

During the adjournment period of 15 days, no further investigation is carried out by the police, in spite of the commencement of the prosecution. Neither the police nor the prosecutor undertakes any further investigative work until the date of the court hearing. The "fragrante delicto" procedure is an expedited procedure by which the regular preparatory stage of preliminary investigation is avoided for the purpose of allowing the authorities to try the case in a fast and efficient manner. Apart from the lack of preliminary investigation, there is no other deviation from the regular procedure before the court. The aggrieved party has the right to appear before the criminal court as a civil plaintiff, in order to support the complaint; actually it is the civil plaintiff who furnishes all evidence to the Court (apart from merchandise confiscated on the spot at the raid) and provides the sophisticated information needed to establish criminal liability; among others, to demonstrate to the court the delicate differences in grey goods and the method for the dilligent merchand to identify those. . If the infringer is convicted, the Court orders additionally - apart from the penalties of imprisonment,monetary fine and of publication - the destruction of all counterfeit goods seized.

Once an infringer is found criminally liable, the aggrieved party will very possibly be a successful plaintiff in civil courts. Apart from the common form of relief granted, which is an injunction against further infringement, the plaintiff will be awarded monetary damages on tort.

However, it should be noted that article 424 of the Criminal Procedure Code provides that if the evidence is considered insufficient, the Court may at its discretion refer the case to the ordinary criminal procedure. In such case further investigation will be carried out.


Criminal Protection under Greek Unfair Competition Law

Law 146/1914 on Unfair Competition contains many provisions, which provide for the criminal protection of the beneficiary of an industrial property right. We refer indicatively to Art. 14 of Law 146/1914, according to which "whoever knowingly and willfully uses, in the course of trade, a trade name or a distinctive sign of a shop or of an industrial business with the intention to create confusion regarding the trade name or the distinctive sign lawfully used by another, shall be punished by imprisonment of maximum 6 months and/or by a monetary fine of maximum 8,80 Euros". This provision is not applicable in cases of trademark infringement, where the above mentioned special provisions of the Law apply. However, the provisions of Law 146/1914 may also apply in cases of trademark infringement, if it is shown that the trademark infringement constitutes a competition act as well, which is contrary to the business ethics.


Criminal Protection under Greek Patent Law

Greek Law 1733/1987 on patents provides for the criminal protection of the inventor or the owner of a right to a patent in art. 17 par. 7, according to which "w hoever places; on products or on their wrapping or on any kind of commercial documents destined for the public or on other relevant means of publicizing and advertising; a false statement, that the objects in question are protected by patent shall be punished by up to one year imprisonment or by a monetary fine amounting to at least 146, 75 Euros or by both penalties".


Joinder of Offenses

Provisions regarding crimes of common criminal law may be applicable in cases of industrial property rights infringement as well, in conjunction with the above mentioned criminal provisions included in the special Greek Laws on Trademarks, Unfair Competition, Patents etc. Thus, a single act may constitute a trademark 'violation' as well as forgery and/or fraud and/or a breach of Laws on Market Regulation. In particular, the following provisions may be applicable as well:

i) Article 216a par. 2 of the Greek Penal Code on forgery , which provides that "whoever knowingly uses a forged document with the purpose of misleading someone as to the origin of this document is punished by imprisonment of at least three months" and

ii) Article 386 (on fraud), which provides that "whoever with the purpose of securing himself or a third party a financial profit deprives another of his/her property by persuading someone to commit an act or to refrain from committing an act through the intentional misrepresentation of facts or through the concealment of the true facts is punished by imprisonment of at least three months; and if the damage is very significant he/she is punished by imprisonment of at least two (2) years".

These crimes may be also prosecuted and tried according to the above described accelerated procedure. However, in the above cases, the infringer shall also be convicted for committing forgery and/or fraud, only if it is established that he/she had knowingly and willfully put on the market counterfeit products.

A provision, which also may be applicable in conjunction with the ones described, is article 30 par. 7 of Law 136/46 on Market Regulations, according to which "whoever gives inaccurate information or denies to give any information to the public or to the Authorities regarding the quality, quantity, the place of production and the origin of products and whoever gives inaccurate information regarding the prices at which he carries out his transactions . is punished by imprisonment or/and by a monetary fine".


Effectiveness of Criminal Prosecution

It is true that criminal protection of industrial property rights may be a difficult option, given the obstacles inherent in criminal proceedings, such as to prove criminal intent, notwithstanding the fact that no damages are to be expected. However, it may prove of interest to owners of industrial property rights to take advantage of the provisions with respect to the criminal protection of their rights, combined with the "fragrante delicto" procedure. The immediate disruption of infringing business following prosecution, potential prison sentences and fines foreseen by Greek Law in matters of industrial property rights' infringement, in combination with the immediate results of the accelerated procedure, may prove to be more efficient to prevent the harmful conduct of an infringer than a civil injunction proceeding or an action for damages. In addition, proceedings in a criminal case may prove significantly less costly than civil proceedings in the long term. All these considered, criminal proceedings should be seriously considered as an effective tool in the use of the owner of an industrial property right when the end goal is to deter all possible infringers from trading on counterfeit goods.