Intellectual Property Offences – Which Articles Cover This Field
Criminal liability in the field of intellectual property is defined by two articles of the Criminal Code of Georgia: Article 189 – infringement of the right of the copyright and related-rights holder and of the database maker – and Article 196 – unlawful use of a trademark (service mark) or other commercial designation. The first protects the interests of authors and rights holders; the second protects the interests of the legitimate owners of trademarks and commercial designations.
In practice these two norms cover different situations. Article 189 concerns plagiarism – the appropriation of authorship or coercion to co-authorship – and the unauthorized reproduction of a work, phonogram, videogram or database, as well as the distribution of copies. Article 196 concerns the unlawful use of another's trademark or appellation of origin and the placing of marked goods into circulation. If a case has been opened against you under these articles, the sanctions of every part of both articles are set out separately below.
Article 189 – What Counts as an Infringement of Copyright
Part 1 of Article 189 speaks of the appropriation of authorship of an object of copyright, or coercion to co-authorship. Part 3 covers the reproduction of a work, phonogram, videogram or database in violation of the Georgian law on copyright and related rights, or the unauthorized acquisition, import, storage, sale, rental, transfer of copies, and other infringement of the right of the rights holder or the database maker, committed with the aim of receiving income in a large amount.
From the defense standpoint the following circumstances matter. First – whether there was a violation of the law and the absence of permission. Second – whether the act was connected with the aim of receiving income in a large amount. Third – what value or income is fixed in the case. According to the note to the article, an act is considered committed with the aim of income in a large amount where the value of the copies, or the income that would have been received in the case of lawful use, exceeds five thousand GEL; in a particularly large amount – where that value or income exceeds ten thousand GEL.
Article 189 – the Sanctions, Part by Part
The penalties of the parts of Article 189 must be read separately:
- part 1 – appropriation of authorship of an object of copyright, or coercion to co-authorship – a fine, or corrective labor for a term of up to two years;
- part 2 – the same act committed more than once – house arrest for a term of six months to one year, or imprisonment for a term of up to three years;
- part 3 – reproduction in violation of the law, or the unauthorized acts with copies, committed with the aim of income in a large amount – a fine, or house arrest for a term of one to two years;
- part 4 – the act provided for by part 3, committed with the aim of income in a particularly large amount, or by a group with prior conspiracy – imprisonment for a term of up to three years.
The note to the article also provides that a legal person is punished for these acts by a fine, by deprivation of the right to carry on activity, or by liquidation and a fine. The rules on individualization of punishment are defined by other norms of the Code.
Article 196 – the Unlawful Use of a Trademark
Article 196 concerns the unlawful manufacture or other unlawful use of another's trademark, appellation of origin of goods or geographical indication, as well as the production of goods unlawfully marked with another's mark or their introduction into civil circulation. Part 2 covers the false indication of a warning marking together with an unregistered trademark or other designation.
Under the note to the article, unlawful manufacture takes place in a large amount where the total number of the marks exceeds 1000 units, and the offence is considered to have caused significant damage where the value of the marked goods exceeds 5000 GEL. These thresholds are decisive for the qualification, and their correct application often decides the fate of the case.
Article 196 – the Sanctions, Part by Part
The penalties of the parts of Article 196 are likewise defined separately:
- part 1 – the unlawful manufacture or use of another's mark in a large amount, or the production or introduction into circulation of marked goods, having caused significant damage – a fine, or corrective labor for a term of up to two years, or imprisonment for the same term;
- part 2 – the false indication of a warning marking together with an unregistered trademark or other designation – a fine, or community service for a term of one hundred and twenty to one hundred and eighty hours, and/or corrective labor for a term of up to one year, or imprisonment for a term of two to three years;
- part 3 – an act provided for by part 1 or 2, committed more than once, by a convicted person, or by a group with prior conspiracy – a fine, or imprisonment for a term of three to five years.
Aggravating Forms and the Tasks of the Defense
The aggravating circumstances under Article 189 are commission more than once (part 2), the aim of income in a particularly large amount, and commission by a group with prior conspiracy (part 4). Under Article 196 they are repetition, commission by a convicted person, and group commission with prior conspiracy.
The task of the defense in this category of cases is the following: to verify the absence of permission – whether a legal ground for the use existed; to establish the amount and aim of the income – whether the act met the criterion of a large or particularly large amount; and to assess the damage precisely. Assessing these questions relies on digital and accounting evidence, whose evaluation procedure is defined by other provisions.
How a Lawyer Assists in Intellectual Property Cases
An intellectual property case always requires the analysis of diverse evidence: contracts, licenses, the history of use and expert conclusions. A lawyer will assess the correctness of the qualification – whether the facts fall under Article 189 or Article 196 – and determine under which part the case proceeds, which translates directly into the expected penalty.
The lawyers of Legal.ge work on economic and intellectual property cases and will help you form an accurate assessment of your situation – both in the position of the accused and in that of the victim of an infringement.