Abstract
The article deals with the nature of the offence of infringement of rights to a trademark and other signs under Section 268(1) of the Criminal Code, in relation to the published case law of the Supreme Court. The resolution of the Supreme Court of 9 December 2020, Case No. 5 Tdo 1231/2020 (No. 45/2021-III Coll., Coll., of the Code of Criminal Procedure), without further justification, held, inter alia, that the perpetrator's mistake as to whether a protected trademark was involved, i.e. a mistake as to the normative characteristic of the offence under Section 268(1) of the Criminal Code, was a mistake as to whether the trademark was a protected trademark.
Code and about its extra-criminal legal regulation, which is not referred to in the Criminal Code, is assessed according to the rules on mistake of fact, which, however, is contrary to the previous settled case law, according to which the criminal offence of infringement of rights to a trademark and other signs under Section 268(1) of the Criminal Code is a criminal offence under Section 268(1) of the Criminal Code. 1 of the Criminal Code, as it refers to the relevant regulation on trademarks, i.e. the criminality here is conditional on the violation of these regulations (cf. Nos. 43/2009, 38/2011 and 3/2018-I Coll. of the Code of Criminal Procedure), which is obviously the more correct view.
The article also refers to the case-law of the Constitutional Court, according to which, if a panel of the Supreme Court reaches a legal opinion that differs from the legal opinion already expressed in a previous decision of the Supreme Court, it refers the case to the Grand Chamber of the Criminal Division of the Supreme Court for a decision. When referring the case, it shall give reasons for its different opinion.
If it fails to do so and decides the case itself, it exercises the power of the State in breach of Article 2(3) of the Constitution of the Czech Republic and Article 2(2) of the Charter of Fundamental Rights and Freedoms and burdens the proceedings with the defect of an improperly constituted court, which, in terms of constitutional law, constitutes a violation of the constitutional right to a lawful judge under Article 38(1) of the Charter of Fundamental Rights and Freedoms. In view of this, it will be necessary, in another similar case, for the competent Chamber of the Supreme Court to refer the case to the Grand Chamber of the Supreme Court. to a special chamber of the Criminal Division of the Supreme Court, which should then resolve the contradiction in the case-law.
Another option is to adopt the opinion of the Criminal Division of the Supreme Court.