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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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|
No.
99/2013/ND-CP
|
Hanoi, August
29, 2013
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DECREE
ON SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN INDUSTRIAL
PROPERTY
Pursuant to the Law on organization of
Government dated December 25, 2001;
Pursuant to the Law on handling of
administrative violations dated June 20, 2012;
Pursuant to the Law on intellectual property
dated November 29, 2005; Law on amending and supplementing a number of articles
of Law on intellectual property dated June 19, 2009 (hereinafter collectively
referred to as Law on intellectual property);
Pursuant to the Law on information technology
dated June 29, 2006;
Pursuant to the Law on competition dated
December 03, 2004;
At the proposal of Minister of Science and
Technology;
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Chapter 1.
GENERAL PROVISIONS
Article 1. Scope of
adjustment
This Decree specifies acts of administrative
violation, sanctioning forms and levels, remedies; procedures for filing
written requests for handling of violations; competence and procedures for
settling written requests for handling of violations; sanctioning competence and
enforcement of decisions on sanctioning administrative violations in industrial
property.
Article 2. Provisions on the
maximum fine level, sanctioning competence for individuals, organizations
1. The fine levels for acts defined in Chapter 2
of this Decree will be the fine levels applicable to individuals. The maximum
fine level for individuals will be 250,000,000 VND.
For the same act of administrative violation,
the fine level for organization will be twice as the fine level for individual.
The maximum fine level for organizations will be 500,000,000 VND.
2. The competence of
sanctioning administrative violations of persons defined in Articles from 16
thru 21 of this Decree is competence applicable to an administrative violation
of individual. In case of fine, sanctioning competence for organizations will
be twice as sanctioning competence for individuals.
Article 3. Sanctioning
forms, remedies
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2. Depend on nature and severity of violations,
infringing organizations and individuals may also be applied one or more of the
following additional sanctioning forms:
a) Confiscation of material evidence and means
used in the commission of administrative violations, including goods bearing
counterfeit marks or geographical indications; raw materials, materials and
means used mainly for producing or trading in those goods;
b) Deprivation of the right to use industrial
property representation practice certificates; assessor cards; or certificates
of eligibility for assessment practice, for between 01 and 03 months from the
effective date of the sanctioning decision;
c) Suspension of the production, trading or
provision of infringing products or services, for between 01 and 03 months from
the effective date of the sanctioning decision.
3. Apart from principal sanctioning forms,
additional sanctioning forms, infringing organizations and individuals may also
be forced to apply one or more of the following remedies:
a) Forcible removal of infringing elements on
their goods or means of business and destruction of infringing elements;
forcible alteration or return of domain names; forcible alteration of
enterprise names, removal of infringing elements in enterprise names;
b) Forcible use for noncommercial purposes of
goods bearing counterfeit marks or geographical indications; raw materials,
materials and means used mainly for producing or trading in these goods, after
infringing elements on these goods are removed, provided such act does not
affect the exercise of the industrial property rights by their holders;
c) Forcible bringing out of the Vietnamese
territory of transit goods infringing upon industrial property rights or
forcible re-export of goods bearing counterfeit marks or geographical
indications, or imported means, raw materials and materials used mainly for
producing or trading in these goods after infringing elements on these goods
are removed;
d) Forcible destruction of goods bearing
counterfeit marks or geographical indications, means, raw materials and
materials used mainly for producing or trading in these goods, evidence and
means involved in violations on which infringing elements cannot be removed;
infringing goods which may cause harms to the health of humans, domestic
animals, plants and the environment; stamps, labels, and articles bearing
counterfeit marks or geographical indications; stamps, labels, packages and other
articles bearing infringing elements; protection titles, certificates or other
documents which are modified, erased or counterfeited;
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e) Forcible public correction of errors, for
acts of giving wrong indications on industrial property rights;
g) Forcible confiscation of dispersed material
evidence or means of violation;
h) Forcible remittance of illicit earnings from the
commission of administrative violations or forcible remittance of an amount
equal to value of material evidence or means of administrative violation which
have been sold, dispersed or destroyed in contrary to provisions of law.
Article 4. Valuation of infringing
goods or services
1. The valuation of goods or services infringing
the industrial property rights for use as a basis for determining the fine
bracket and sanctioning competence shall be applied basing on one of grounds
according to the priority order specified in Clause 2 Article 60 of the Law on
Handling of Administrative Violations as follows:
a) The price listed or stated in the contract or
purchase invoices or import declaration;
b) The price according to the notice of local
financial agencies; in case of without price notice, the price shall be based
on the market price in the localities at the time of happening administrative
violations;
c) The cost price of infringing goods if they
are goods not yet been brought out for sale.
2. For material evidences being goods bearing
counterfeit marks as prescribed in Clause 2 Article 213 of the Law on Handling
of Administrative Violations, the valuation of such goods shall be conducted as
valuation of goods infringing industrial property rights as prescribed in
Clause 1 of this Article.
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Chapter 2.
ACTS OF ADMINISTRATIVE
VIOLATIONS, SANCTIONING FORMS AND REMEDIES
SECTION 1. VIOLATIONS OF
PROVISIONS ON MANAGEMENT OF INDUSTRIAL PROPERTY ACTIVITIES
Article 5. Violations of
provisions on procedures for establishment, exercise and protection of industrial
property rights
1. A fine of between VND 3,000,000 and VND
5,000,000 for acts of modifying, erasing, falsifying content of protection
titles or documents proving industrial property rights.
2. A fine of between VND 3,000,000 and VND
5,000,000 for acts of providing false information and evidence in the process
of carrying out any of the following procedures:
a) Carrying out procedures for establishment,
recognition, certification, amendment, maintenance, extension, request for
termination or cancellation of the validity of industrial property rights
protection titles;
b) Requesting competent state agencies to issue
decisions on compulsory licensing of inventions.
3. A fine of between VND 15,000,000 and VND
20,000,000 for acts of forging papers in the cases specified in Clause 2 of
this Article.
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Forcible destruction of counterfeit papers,
documents for acts of violation specified in Clause 3 of this Article.
Article 6. Violations of
provisions on indications on protection of industrial property rights
1. A warning or a fine of between VND 500,000
and 1,000,000 for any of the following acts:
a) Providing wrongful indications on objects or
elements subject to industrial property rights protection, industrial property
rights holders, and authors of inventions, industrial designs or layout
designs;
b) Providing wrongful indications on the legal
status and scope of protection of industrial property rights;
c) Providing wrongful indications or no
indication on goods produced under licensing contracts.
2. Remedial measures:
a) Forcible removal of infringing elements on
goods or means of business, for violations specified in Clause 1 of this
Article;
b) Forcible public correction of errors, for
violations specified at Points a and b, Clause 1 of this Article;
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Article 7. Violations of
provisions on industrial property representation
1. A fine of between VND 2,000,000 and 5,000,000
for any of the following acts:
a) Failing to notify in writing a state agency
competent to establish and protect industrial property rights of a change in
their names, addresses or legal status of industrial property representation,
or a change related to the parties authorizing and authorized to conduct
industrial property representation;
b) Failing to notify or untruthfully notify
industrial property representation items, charges and fees at the request of a
competent agency;
c) Failing to perform procedures for deleting
name in the National register of industrial property representation when ending
operation at organizations of industrial property representation;
d) Failing to perform again procedures for recording
in the National register of industrial property representation when operate at
other organization of industrial property representation.
2. A fine of between VND 5,000,000 and
10,000,000 for any of the following acts:
a) Concurrently representing parties to a
dispute over industrial property rights;
b) Withdrawing applications for protection
titles, disclaiming the protection, withdrawing complaints or taking other acts
in the establishment of industrial property rights without permission of the representation
authorizing person;
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d) Failing to deliver protection titles,
documents proving industrial property rights, certificates and other decisions
to the representation authorizer in time limit prescribed by law without any
plausible reason;
dd) Failing to implement or respond to requests
of competent state agencies for establishment of industrial property rights or
settlement of industrial property disputes or handling of industrial property
violations without any plausible reason;
e) Modifying or falsifying contents of
industrial property representation practice certificates;
g) Deliberately advising or notifying wrongful
information on provisions of the industrial property law or information on
industrial property activities;
h) Deliberately obstructing the establishment,
exercise and protection of industrial property rights, causing damage to
parties with related rights and interests;
i) Abandoning the industrial property
representation activities when not yet transferred legally the unfinished
representation job to other industrial property representation organization.
3. A fine of between VND 10,000,000 and
20,000,000 for any of the following acts:
a) Providing industrial property representation
services without satisfying the practice conditions specified by law;
b) Forging papers and documents or providing
untruthful information to competent state agencies in the process of
registration and inspection of industrial property representation operations,
application for industrial property representation practice certificates or
request for recognition of industrial property representation service
providers.
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a) Disclosing information not yet permitted for
disclosure of competent state management agencies relating to the process of
receipt, appraisal and processing of various registration applications,
complaints and requests for handling of industrial property violations;
b) Committing serious errors or violations in
the course of practicing representation, causing damage to the interests of the
State or society.
5. Additional sanctions:
Deprivation of the right to use industrial
property representation practice certificates for between 01 and 03 months from
the effective day of decision on sanction, for violations specified in Clause 4
of this Article;
6. Remedial measures:
Forcible destruction of counterfeit papers,
documents for acts of violation specified in point b Clause 3 of this Article.
Article 8. Violations of
provisions on industrial property assessment
1. A warning or a fine of between VND 500,000
and 1,000,000 for any of the following acts:
a) Violating provisions on assessment order,
procedures and time limit;
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2. A fine of between VND 2,000,000 and VND
5,000,000 for acts of modifying, falsifying content of assessor cards or certificates
of eligibility for industrial property assessment.
3. A fine of between VND 5,000,000 and
10,000,000 for any of the following acts:
a) Conducting industrial property assessment
without satisfying the practice conditions specified by law;
b) Disclosing secret information acquired while
conducting assessment without permission of concerned parties;
c) Failing to compile assessment dossiers or
failing to preserve exhibits and documents related to cases subject to
assessment;
d) Using industrial property assessor cards of
other persons or letting other persons use their own industrial property
assessor cards to practice assessment.
4. A fine of between VND 10,000,000 and
20,000,000 for any of the following acts:
a) Taking advantage of the assessor status and
assessment activities for self-seeking purposes;
b) Deliberately making untruthful assessment
conclusions;
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d) Forging or using forged papers or supplying
untruthful information to competent state agencies in the process of
registration and inspection of industrial property assessment operations,
application for industrial property assessor cards or request for recognition
of industrial property assessment organizations.
dd) Conducting assessment in cases in which
assessment must be refused as prescribed by law.
5. Additional sanctions:
Deprivation of the right to use assessor cards
or certificates of eligibility for industrial property assessment for between
01 and 03 months, for violations specified at Points a and b Clause 4 of this
Article.
6. Remedial measures:
a) Forcible destruction of documents modified,
falsified content or forged for violations specified in Clause 2, point c,
point d Clause 4 of this Article;
b) Forcible remittance of illicit earnings from
the commission of administrative violations specified in point a Clause 4 of
this Article.
Article 9. Violations of
provisions on sealing, temporary seizure of infringing material evidence and
means in the course of inspection and examination
1. A fine of between VND 2,000,000 and 5,000,000
for acts of removing or breaking seals of material evidence and means of
industrial property administrative violations subject to sealing or temporary
seizure.
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3. A fine of between VND 15,000,000 and
30,000,000 for acts of selling, dispersing or destroying material evidence or
means of industrial property administrative violations subject to sealing or
temporary seizure.
4. Remedial measures:
Forcible recovery of dispersed material evidence
and means, or forcible remittance of an amount equal to value of material
evidence and means sold, dispersed, or destroyed for violations specified at
Clause 3 of this Article.
SECTION 2. INFRINGEMENT OF
RIGHTS AND UNFAIR COMPETITION IN INDUSTRIAL PROPERTY
Article 10. Infringement of
rights to inventions, utility solutions and layout designs
1. A fine of between VND 500,000 and 2,000,000
shall be imposed for any of the following acts with business purpose in case
where infringing goods are valued up to VND 3,000,000:
a) Selling, offering for sale; transporting,
included transiting; storing; displaying for sale of products infringing upon
rights to inventions, utility solutions or layout designs, or products produced
from a process infringing upon rights to inventions or utility solutions;
b) Utilizing products infringing upon rights to
inventions or utility solutions or products produced from a process infringing
upon rights to inventions or utility solutions;
c) Placing orders to, assigning or hiring other parties
to commit violations specified at Points a and b of this Clause.
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3. A fine of between VND 4,000,000 and 8,000,000
for any violation specified in Clause 1 of this Article in case infringing
goods are valued at between over VND 5.000,000 and 10,000.000.
4. A fine of between VND 8,000,000 and
15,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 10.000,000 and 20,000.000.
5. A fine of between VND 15,000,000 and
25,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 20.000,000 and 40,000.000.
6. A fine of between VND 25,000,000 and
40,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 40.000,000 and 70,000.000.
7. A fine of between VND 40,000,000 and
60,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 70.000,000 and 100,000.000.
8. A fine of between VND 60,000,000 and
80,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 100.000,000 and 200,000.000.
9. A fine of between VND 80,000,000 and
110,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 200.000,000 and 300,000.000.
10. A fine of between VND 110,000,000 and
150,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 300.000,000 and 400,000.000.
11. A fine of between VND 150,000,000 and
200,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 400.000,000 and 500,000.000.
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13. A fine of equal to 1.2 times the fine levels
specified in Clauses 1 thru 12 of this Article, which must not exceed VND
250,000,000, shall be imposed for any of the following violations with business
purposes:
a) Conducting production, including stages of:
designing, building, manufacturing, processing, assembling and packaging
products or goods infringing upon rights to inventions, utility solutions or
layout designs;
b) Applying processes infringing upon rights to
inventions, utility solutions;
c) Importing products infringing upon rights to
inventions, utility solutions or layout designs or products produced from
processes infringing upon rights to inventions or utility solutions;
d) Placing orders to, assigning or hiring other
parties to commit violations specified at Points a, b and c of this Clause.
14. Additional sanctions:
Suspension of the production, trading of
infringing goods, for between 01 and 03 months, for violations specified in
Clauses 1 thru 13 of this Article.
15. Remedial measures:
a) Forcible removal and destruction of
infringing elements for violations specified in Clauses 1 thru 13 of this
Article;
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c) Forcible bringing out of the Vietnamese
territory of transit goods infringing industrial property rights for violations
specified in Clauses 1 thru 12 of this Article;
d) Forcible remittance of illicit earnings from
the commission of administrative violations specified in Clauses 1 thru 13 of
this Article.
Article 11. Infringement of
rights to marks, geographical indications, trade names or industrial designs
1. A warning or fine of between VND 500,000 and
2,000,000 shall be imposed for any of the following acts with business purpose
in case where infringing goods or services are valued up to VND 3,000,000:
a) Selling, offering for sale; transporting,
included transiting; storing: displaying for sale of products or services
infringing upon rights to marks, geographical indications, trade names or
industrial designs;
b) Placing orders to, assigning or hiring other
parties to commit violations specified at Point a of this Clause.
2. A fine of between VND 2,000,000 and 4,000,000
for any violation specified in Clause 1 of this Article in case infringing goods
or services are valued at between over VND 3.000,000 and 5,000.000.
3. A fine of between VND 4,000,000 and 8,000,000
for any violation specified in Clause 1 of this Article in case infringing
goods or services are valued at between over VND 5.000,000 and 10,000.000.
4. A fine of between VND 8,000,000 and
15,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods or services are valued at between over VND 10.000,000 and
20,000.000.
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6. A fine of between VND 25,000,000 and
40,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods or services are valued at between over VND 40.000,000 and
70,000.000.
7. A fine of between VND 40,000,000 and
60,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods or services are valued at between over VND 70.000,000 and
100,000.000.
8. A fine of between VND 60,000,000 and
80,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods or services are valued at between over VND 100.000,000 and
200,000.000.
9. A fine of between VND 80,000,000 and
110,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods or services are valued at between over VND 200.000,000 and
300,000.000.
10. A fine of between VND 110,000,000 and 150,000,000
for any violation specified in Clause 1 of this Article in case infringing
goods or services are valued at between over VND 300.000,000 and 400,000.000.
11. A fine of between VND 150,000,000 and
200,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods or services are valued at between over VND 400.000,000 and
500,000.000.
12. A fine of between VND 200,000,000 and
250,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 500.000,000.
13. A fine of equal to 1.2 times the fine levels
specified in Clauses 1 thru 12 of this Article, which must not exceed VND
250,000,000, for any of the following violations:
a) Designing, manufacture, processing, assembling
and packaging goods bearing signs infringing upon rights to marks, trade names,
geographical indications or industrial designs;
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c) Importing goods bearing signs infringing upon
rights to marks, geographical indications, trade names or industrial designs;
d) Placing orders to, assigning or hiring other
parties to commit violations specified at Points a, b and c of this Clause.
14. A fine of between VND 10,000,000 and
30,000,000 shall be imposed for acts of infringing upon rights to marks,
geographical indications, trade names or industrial designs as specified in
Clauses 1 and 13 of this Article in case the value of infringing goods or
services cannot be determined.
15. A fine of between VND 10,000,000 and
20,000,000 shall be imposed for acts of using signs infringing upon rights to marks,
geographical indications, trade names on signboards, business transaction
papers, means of business or service, goods packages.
16. Additional sanctions:
Suspension of trading in infringing goods or
services, for between 01 and 03 months, for violations specified in from
Clauses 1 thru 15 of this Article.
17. Remedial measures:
a) Forcible removal and destruction of
infringing elements for violations specified in from Clause 1 thru Clause 15 of
this Article;
b) Forcible destruction of material evidence and
means used in the commission of violations which infringing elements cannot be
removed, infringing stamps, labels, packages and articles, for violations
specified in Clauses 1 thru 15 of this Article;
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d) Forcible change of enterprise name or removal
of infringing elements in enterprise name, for violations specified in Clauses
1 thru 13 of this Article;
d) Forcible remittance of illicit earnings from
the commission of administrative violations specified in Clauses 1 thru 15 of
this Article.
Article 12. Production,
import, trading, transportation or storage for sale of goods bearing counterfeit
marks or geographical indications
1. A fine of between VND 4,000,000 and 8,000,000
for any of the following acts in case where infringing goods are valued up to
VND 5,000,000:
a) Selling, offering for sale; transporting,
included transiting; storing; displaying for sale of goods bearing counterfeit
marks or geographical indications;
b) Placing orders to, assigning or hiring other
parties to commit violations specified at Point a of this Clause.
2. A fine of between VND 8,000,000 and 12,000,000
for any violation specified in Clause 1 of this Article in case infringing
goods are valued at between over VND 5.000,000 and 10,000.000.
3. A fine of between VND 12,000,000 and
20,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 10.000,000 and 20,000.000.
4. A fine of between VND 20,000,000 and
35,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 20.000,000 and 40,000.000.
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6. A fine of between VND 55,000,000 and
85,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 70.000,000 and 100,000.000.
7. A fine of between VND 85,000,000 and
120,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 100.000,000 and 200,000.000.
8. A fine of between VND 120,000,000 and
180,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 200.000,000 and 300,000.000.
9. A fine of between VND 180,000,000 and
250,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 300.000,000.
10. A fine of equal to 1.2
times the fine levels specified in Clauses 1 thru 9 of this Article, which must
not exceed VND 250,000,000, for any of the following violations:
a) Manufacturing, processing, assembling and
packaging goods bearing counterfeit marks or geographical indications;
b) Printing, sticking, attaching, molding or
embossing or otherwise affixing stamps, labels or other articles bearing
counterfeit marks or geographical indications on goods;
c) Importing goods bearing counterfeit marks or
geographical indications;
d) Placing orders to, assigning or hiring other
parties to commit violations specified at Points a, b and c of this Clause.
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12. Additional sanctions:
a) Confiscation of material evidence and means
used in the commission of violations, for violations specified in Clauses 1
thru 11 of this Article;
b) Suspension of trading in infringing goods or
services, for between 01 and 03 months, for violations specified in from
Clauses 1 thru 11 of this Article.
13. Remedial measures:
b) Forcible destruction or distribution or
bringing into use without commercial purpose for goods bearing counterfeit
marks or geographical indications; raw materials, materials and means used
mainly for producing or trading in those goods, provided such act does not
affect the exercise of the industrial property rights by their holders, for
violations specified in Clauses 1 thru 11 of this Article;
c) Forcible re-export of goods bearing
counterfeit marks or geographical indications, or imported means, raw materials
and materials used mainly for producing or trading in these goods after
infringing elements on these goods are removed, for violations specified in
Clauses 1 thru 10 of this Article;
c) Forcible remittance of illicit earnings from
the commission of administrative violations specified in Clauses 1 thru 11 of
this Article.
Article 13. Production,
import, trading, transportation or storage for sale of stamps, labels or
articles bearing counterfeit marks or geographical indications
1. A warning or fine of between VND 500,000 and
1.000,000 shall be imposed for any of the following violations in case of
stamps, labels, packages or articles bearing counterfeit marks or geographical
indications with quantity of 500 pieces, sheets or similar units (hereinafter
abbreviated to units):
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b) Placing orders to, assigning or hiring other
parties to commit violations specified at Point a of this Clause.
2. A fine of between VND 1,000,000 and 2,000,000
for any violation specified in Clause 1 of this Article in case quantity of
stamps, labels, packages or articles bearing counterfeit marks or geographical
indications is between over 500 units and 1,000 units.
3. A fine of between VND 2,000,000 and 4,000,000
for any violation specified in Clause 1 of this Article in case quantity of
stamps, labels, packages or articles bearing counterfeit marks or geographical
indications is between over 1,000 units and 2,000 units.
4. A fine of between VND 4,000,000 and 8,000,000
for any violation specified in Clause 1 of this Article in case quantity of
stamps, labels, packages or articles bearing counterfeit marks or geographical
indications is between over 2,000 units and 5,000 units.
5. A fine of between VND 8,000,000 and 15,000,000
for any violation specified in Clause 1 of this Article in case quantity of
stamps, labels, packages or articles bearing counterfeit marks or geographical
indications is between over 5,000 units and 10,000 units.
6. A fine of between VND 15,000,000 and
25,000,000 for any violation specified in Clause 1 of this Article in case
quantity of stamps, labels, packages or articles bearing counterfeit marks or
geographical indications is between over 10,000 units.
7. A fine of equal to 1.2 times the fine levels
specified in Clauses 1 thru 6 of this Article shall be imposed for any of the
following violations:
a) Producing included designing, printing;
importing stamps, labels, packages or articles bearing counterfeit marks or
geographical indications;
b) Placing orders to, assigning or hiring other
parties to commit violations specified at Point a of this Clause.
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a) Forcible destruction of stamps, labels,
packages or articles bearing counterfeit marks or geographical indications, for
violations specified in Clauses 1 thru 7 of this Article;
b) Forcible remittance of illicit earnings from
the commission of administrative violations specified in Clauses 1 thru 7 of
this Article.
Article 14. Unfair
competition in the domain of industrial property
1. A warning or fine of between VND 500,000 and
2,000,000 for any of the following acts in case where infringing goods or
services are valued up to VND 3,000,000:
a) Selling; transporting, included transiting;
storing for sale of goods or services affixed with trade indications, thereby
misleading as to business entities or activities, trade origin of goods or
services or origin, method of production, utilities, quality, quantity or other
features of goods or services or conditions for provision of goods or services;
b) Placing orders to, assigning or hiring other
parties to commit violations specified at Point a of this Clause.
2. A fine of between VND 2,000,000 and 4,000,000
for any violation specified in Clause 1 of this Article in case infringing
goods and services are valued at between over VND 3.000,000 and 5,000.000.
3. A fine of between VND 4,000,000 and 8,000,000
for any violation specified in Clause 1 of this Article in case infringing
goods and services are valued at between over VND 5.000,000 and 10,000.000.
4. A fine of between VND 8,000,000 and
15,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods and services are valued at between over VND 10.000,000 and
20,000.000.
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6. A fine of between VND 25,000,000 and
40,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods and services are valued at between over VND 40.000,000 and
70,000.000.
7. A fine of between VND 40,000,000 and
60,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods and services are valued at between over VND 70.000,000 and
100,000.000.
8. A fine of between VND 60,000,000 and
80,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods and services are valued at between over VND 100.000,000 and
200,000.000.
9. A fine of between VND 80,000,000 and
110,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods and services are valued at between over VND 200.000,000 and
300,000.000.
10. A fine of between VND 110,000,000 and
150,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods and services are valued at between over VND 300.000,000 and
400,000.000.
11. A fine of between VND 150,000,000 and
200,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods and services are valued at between over VND 400.000,000 and
500,000.000.
12. A fine of between VND 200,000,000 and
250,000,000 for any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 500.000,000.
13. A fine of equal to 1.2 times the fine levels
specified in Clauses 1 thru 12 of this Article, which must not exceed VND
250,000,000, for any of the following violations:
a) Affixing trade indications on goods or
services, thereby misleading as to business entities or activities, trade
origin of goods or services or origin, method of production, utilities,
quality, quantity or other features of goods or services or conditions for
provision of goods or services;
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c) Placing orders to, assigning or hiring other
parties to commit violations specified at Points a and b of this Clause.
14. A fine of between VND 10,000,000 and
30,000,000 shall be imposed for acts of using misleading trade indications
specified in Clause 1 and Clause 13 of this Article in case the value of
infringing goods or services cannot be determined.
15. A fine of between VND 5,000,000 and
15,000,000 for any of the following acts:
a) Infringing upon rights to business secrets as
prescribed in Article 127 of the Law on intellectual property;
b) Using on transaction papers or means of business,
including also means of service, signboards and goods packages, trade
indications which mislead as to business entities or activities or trade origin
of goods or services or origin, method of production, utilities, quality,
quantity or other features of goods or services or conditions for provision of
goods or services.
16. A fine of between VND 5,000,000 and
20,000,000 for any of the following acts:
a) Registering or appropriating the right to use
or using domain names identical or confusingly similar to protected marks,
geographical indications or trade names of other parties in order to
appropriate domain names, taking advantage of or harming reputation of those
marks, trade names or geographical indications;
b) Using marks protected in a country being
contracting party to a treaty which bans representatives or agents of mark
owners from using these marks and to which Vietnam is a contracting party,
provided that users are representatives or agents of mark owners and this use
is neither authorized by mark owners nor justifiable.
17. Additional sanctions:
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18. Remedial measures:
a) Forcible removal or forcible destruction of
infringing elements, forcible destruction of infringing goods from which
infringing elements cannot be removed, for violations specified in Clauses 1
thru 16 of this Article;
b) Forcible removal of information on infringing
goods or services on means of business, services, or websites, for violations
specified in Clauses 15 and 16 of this Article;
c) Forcible change of enterprise name or removal
of infringing elements in enterprise name, for violations specified in Clauses
1 thru 15 of this Article; forcible change or withdrawal of domain names, for
violation specified in point a Clause 16 of this Article;
d) Forcible remittance of illicit earnings from
the commission of administrative violations specified in Clauses 1 thru 16 of
this Article.
Chapter 3.
COMPETENCE FOR
ADMINISTRATIVE SANCTION
Article 15. Sanctioning
competence
1. Scientific and technological inspectorates
are competent to handle violations specified in Chapter II of this Decree.
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3. Market management offices are competent to
handle the following violations:
a) Violations specified in Article 12 and
Article 13 of this Decree in manufacturing, trading, transporting, storing
goods at domestic market;
b) Violations specified in Articles 6, 9, 11 and
14 of this Decree in trading, transporting goods at domestic market. In case
where facilities producing those goods are identified when handling violations
specified in point b Clause 3 of this Article, the competent Market management
offices may continue handling violations at the production facilities.
4. Customs offices are competent to handle violations
specified in Articles 6, 9, 10, 11, 12, 13 and 14 of this Decree in the transit
or import of goods.
5. Police agencies are competent to detect,
verify, collect information and evidence of acts infringing industrial property
rights and provide them to agencies handling violations specified in Clauses 1,
2, 3 and 4 of this Article; and competent to handle violations specified in
Articles 9, 12 and 13 of this Decree.
6. The provincial and district-level People's
Committees are competent to handle violations in industrial property which are
committed in their respective localities on the principle of determination and
apportionment of competence sanctioning administrative violations provided in
Article 38 and Article 52 of the Law on Handling of Administrative Violations.
Article 16. Sanctioning
competence of scientific and technological inspectorates
1. Inspectors of the Inspectorate of Science and
Technology Ministry, or Inspectorate of provincial-level Science and Technology
Departments who are on duty may:
a) Impose warning;
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c) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
d) Apply remedies specified at Point d Clause 3
Article 3 of this Decree.
2. Chief inspectors of provincial-level Science
and Technology Departments, or heads of specialized inspectorate delegations of
the provincial-level Science and Technology Departments may:
a) Impose warning;
b) Fine up to VND 50,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
dd) Apply remedies specified at Clause 3 Article
3 of this Decree.
3. Chief inspector of the Science and Technology
Ministry may:
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b) Fine up to VND 250,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations;
dd) Apply remedies specified at Clause 3 Article
3 of this Decree.
4. Heads of specialized inspectorate delegations
of the Science and Technology Ministry may:
a) Impose warning;
b) Fine up to VND 175,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
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Article 17. Sanctioning
competence of information and communications inspectorates
1. Inspectors of the Inspectorate of information
and communications Ministry or Inspectorates of provincial-level
information and communications Departments who are on duty may:
a) Impose warning;
b) Fine up to VND 500,000;
c) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
d) Apply remedies specified at Point a Clause 3
Article 3 of this Decree.
2. Chief inspectors of provincial-level Science
and Technology Departments, or heads of specialized inspectorate delegations of
the provincial-level Science and Technology Departments may:
a) Impose warning;
b) Fine up to VND 50,000,000;
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d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
d) Apply remedies specified at Point a Clause 3
Article 3 of this Decree.
3. Chief inspector of Information and
Communications Ministry may:
a) Impose warning;
b) Fine up to VND 250,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations;
dd) Apply remedies specified at Point a Clause 3
Article 3 of this Decree.
4. Heads of specialized inspectorate delegations
of the Information and Communications Ministry may:
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b) Fine up to VND 175,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
dd) Apply remedies specified at Point a Clause 3
Article 3 of this Decree.
Article 18. Sanctioning
competence of market management officers
1. Heads of market management teams may:
a) Impose warning;
b) Fine up to VND 25,000,000;
c) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
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2. Directors of market management sub-departments
of the provincial Departments of Industry and Trade, Heads of anti-smuggling
divisions and anti-counterfeits divisions under the market management
departments may:
a) Impose warning;
b) Fine up to VND 50,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
dd) Apply remedies specified at Clause 3 Article
3 of this Decree.
3. Directors of the provincial market management
Departments may:
a) Impose warning;
b) Fine up to VND 250,000,000;
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d) Confiscate material evidence or means used in
the commission of administrative violations;
dd) Apply remedies specified at Clause 3 Article
3 of this Decree.
Article 19. Sanctioning
competence of customs officers
1. Heads of professional operation teams of
Customs sub-Departments or Post-Customs Clearance Inspection Sub-Departments
may:
a) Impose warning;
b) Fine up to VND 5,000,000,000;
2. Directors of Customs Sub-Departments or
Post-Customs Clearance Inspection Sub-Departments, heads of control teams of
provincial, inter-provincial or municipal Customs Departments (below referred
to as provincial-level Customs Departments), heads of anti-smuggling control
teams, heads of customs procedures teams, heads of intellectual property right
control and protection teams and captains of sea patrol flotillas of the
Anti-Smuggling Investigation Department of the General Department of Customs
may:
a) Impose warning;
b) Fine up to VND 25,000,000;
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d) Apply remedies specified at Points a, b, d,
dd, g and h Clause 3 Article 3 of this Decree.
3. The directors of the Anti-Smuggling
Investigation Department and the Post-Customs Clearance Inspection Department
of the General Department of Customs and directors of provincial-level Customs
Departments may:
a) Impose warning;
b) Fine up to VND 50,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
dd) Apply remedies specified at Points a, b, c,
d, dd, g and h Clause 3 Article 3 of this Decree.
4. General Director of the General Department of
Customs may:
a) Impose warning;
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d) Confiscate material evidence or means used in
the commission of administrative violations;
d) Apply remedies specified at Points a, b, c,
d, dd, g and h Clause 3 Article 3 of this Decree.
Article 20. Sanctioning
competence of People’s Public Security officers
1. Heads of border-gate and processing and
exporting zone police stations may:
a) Impose warning;
b) Fine up to VND 2,500,000;
c) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
d) Apply remedies specified at Point d Clause 3
Article 3 of this Decree.
2. District-level police chiefs, heads of police
sections for investigation of crimes related to economic management order and
positions may:
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b) Fine up to VND 25,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
dd) Apply remedies specified at Points b, d, dd,
and g Clause 3 Article 3 of this Decree.
3. Directors of provincial-level Police
Departments may:
a) Impose warning;
b) Fine up to VND 50,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
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4. Director of the Police Department for
Investigation of Crimes related to Economic Management Order and Positions may:
a) Impose warning;
b) Fine up to VND 250,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
d) Confiscate material evidence or means used in
the commission of administrative violations;
dd) Apply remedies specified at Points b, d, dd,
g and h Clause 3 Article 3 of this Decree.
5. Apart from persons defined in Clauses 1, 2, 3
and 4 of this Article, competent persons of People’s Public Security forces who
detect acts of administrative violations in industrial property under their
competence and management localities may sanction as prescribed in Article 39
of the Law on handling of administrative violations and this Decree.
Article 21. Sanctioning
competence of chairpersons of district- and provincial-level People's
Committees
1. Chairpersons of district-level People's
Committees may:
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b) Fine up to VND 50,000,000;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
c) Confiscate material evidence or means used in
the commission of administrative violations valued not exceeding the fine level
specified in point b of this Clause;
dd) Apply remedies specified at Points b, d, dd,
e, g and h Clause 3 Article 3 of this Decree.
2. Chairpersons of provincial People's
Committees may:
a) Impose warning;
b) Fine up to VND 250,000,000;
d) Confiscate material evidence or means used in
the commission of administrative violations;
c) Deprive of the right to use practice permits
or certificates for a definite period or suspend the business in infringing
goods or services for a definite period;
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Chapter 4.
HANDLING OF VIOLATIONS
Article 22. Right to
request handling of violations and competence to take the initiative in detecting
and handling violations
1. Industrial property rights holders that may
request handling of violations in the domain of industrial property include:
a) Industrial property rights holders that
suffer damage caused by violations, including also organizations authorized to
manage geographical indications currently protected in Vietnam;
b) Persons licensed to use industrial property
objects who suffer damage caused by violations, provided their right to request
handling of violations are not restricted by industrial property rights
holders.
When exercising the right to request handling of
acts infringing upon industrial property rights provided at Point a, Clause 1,
Article 211 of the Law on Intellectual Property and acts of unfair competition
specified in Article 130 of the Law on Intellectual Property, organizations and
individuals defined in this Clause shall clearly indicate the nature and
severity of violations in their requests and supply documents and evidence
specified in Clause 2, Article 26 of this Decree.
2. Organizations and individuals that detect
acts infringing upon industrial property rights, thus causing damage to
consumers or the society, violations related to goods, stamps, labels or
articles bearing counterfeit marks or geographical indications; organizations
and individuals that suffer damage or are likely to suffer damage caused by
acts of unfair competition in the domain of industrial property may notify and
request competent agencies to carry out procedures for verifying and
sanctioning violations.
Upon receiving notices of organizations and
individuals defined in this Clause, agencies competent to handle violations
shall inspect and coordinate with industrial property rights holders in
verifying and handling violations under Clause 3 of this Article.
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a) Goods, stamps, labels, packages and other
articles bearing counterfeit marks or geographical indications;
b) Infringing goods or services related to food,
foodstuffs, pharmaceuticals, cosmetics, livestock feed, fertilizers, veterinary
drugs, plant protection drugs, construction materials, means of transport,
chemicals for medical, agricultural or environmental use, and other items
identified by competent persons while conducting periodical or irregular
inspection or examination.
Article 23. Authorization
to request handling of violations
1. Industrial property rights holders defined in
Clause 1, Article 24 of this Decree that do not directly file their requests
for handling of violations may authorize heads of their representative offices,
branches or agents or industrial property representation service providers in
Vietnam to carry out all procedures for requesting handling of violations under
this Decree.
2. Authorization must be made in writing in the
form of power of attorney or authorization contract.
A power of attorney of organization or
individual in Vietnam must bear a signature of legal representative of the
authorizing party and confirmation seal of the authorizing party, in case of
possessing a legally-registered seal.
A power of attorney made by a foreign
organization or individual must be certified by a notary public, consular
office or local administration or other form considered as being lawful as
prescribed by law of where it is made.
3. A power of attorney enclosed with the request
for handling of violations must be original. A power of attorney made in a
foreign language must be enclosed with its Vietnamese translation certified by
local administration or bearing guarantee and certification by an industrial
property representation service provider being the authorized.
In case a copy of a power of attorney refers to
the original power of attorney already included in a dossier previously filed
with the same violation-handling agency, such copy is also considered valid,
provided that the applicant must specify number code of the filed dossier and
the original is still valid and consistent with contents of authorization.
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5. Time limit of authorization is defined under
time limit inscribed in the power of attorney. If a power of attorney fails to
inscribe time limit, the time limit of authorization will be defined according
to Clause 3 Article 107 of the law on intellectual property.
Article 24. Requests for
handling of violations
1. A request for handling of a violation must be
made in writing, under form of application for handling of violation, clearly
indicating the date of making, name(s) of request-receiving agency(ies),
information on the requesting organization or individual; lawful representative
or authorized organization or individual; concerned industrial property object;
goods or service showing signs of infringement; name and address of infringing
organization or individual; proposed handling measure(s); signature of the
lawful representative of the requesting organization or individual or the
authorized organization or individual, and the seal for signature certification
(if any). If such a request has been previously filed with another agency, it
must clearly indicate the name of this agency and the filing date.
2. A written request for handling of a violation
must be enclosed with documents evidencing the right to request handling of
violation; documents describing or photos of infringing act, goods or service;
place in which the infringing act is committed or infringing goods or service
exists.
The requester may supply other documents,
samples or evidence to help the competent agency identify the infringing act
and goods or service.
Article 25. Receipt and
examination of written requests for handling of violations
1. When receiving a written request for handling
of a violation, a violation-receiving agency shall implement the following
jobs:
a) Determine the competence to handle the
violation; if the written request for handling of a violation falls under the
handling competence of another agency, guide the requester to file this request
with that agency;
b) Examine documents and evidence enclosed with
the written request.
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a) Within 10 working days after receiving the
written request, the violation-handling agency shall consider the validity of
the written request and enclosed documents and evidence;
b) When documents or evidence supplied by the
requester are insufficient, the violation-handling agency shall request the
requester to supplement documents and evidence or give explanations within 30
days after being requested;
c) The agency competent to accept the case for
handling may request the alleged violator to furnish information, evidence and
give explanations; solicit expert opinions of the state management agency in
charge of industrial property or request industrial property assessment to
clarify circumstances of the case;
d) Within 30 days after receiving the complete
dossier which satisfies the requirements, the competent person shall notify the
requester of the projected time of handling, procedures and measures and
request cooperation and support of the industrial property rights holder in the
inspection, examination, verification and handling of the violation.
3. Rights and responsibilities of parties
requested to be handled for their violations:
a) In the course of handling a case, the party
requested to be handled may, at his/her/its own will or the request of a competent
person, provide information, documents and evidence and give explanations, in
case of disagreeing with the requester, within 10 days after the date fixed in
the notice of the competent person currently handling the violation or the date
of making a minutes of inspection, minutes of administrative violation. If
there is a plausible reason, the party requested to be handled may request in
writing the competent person currently handling the case to prolong that time
limit for not more than 30 days after the date fixed in the notice or the date
of making a minutes of inspection or minutes of administrative violation;
b) The party requested to be handled may
authorize another organization or individual under Article 23 of this Decree to
provide information, documents and evidence and give explanations under Point a
of this Clause;
c) To prove that his/her/its act does not
infringe upon the right to an invention or a utility solution being a process,
the party requested to be handled is obliged to prove that the product believed
to be produced from the process infringing upon the right to that invention or
utility solution has, in fact, not been produced from the process protected as
an invention or a utility solution and satisfied the relevant conditions specified
in Clause 4, Article 203 of the Law on Intellectual Property;
d) In case the party requested to be handled
fails to provide or provides insufficient information, documents, evidence and
explanations to prove his/her/its lawful act, the competent person shall decide
to handle the case based on inspection and examination results and information,
documents and evidence provided by the requester, for issuing a handling
decision.
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1. A requester for handling of a violation may
request industrial property assessment or request the state management agency
in charge of industrial property to give its expert opinions for identifying
the protection scope and infringing elements, or take the initiative in
providing documents and evidence to prove the infringing act or to clarify
circumstances of the case.
2. The agency competent to handle the violation
may request the requester to provide documents, evidence and explanations or
clarify circumstances of the case within a given time limit; request the
industrial property rights holder to provide information, documents and samples
to identify signs of violation, genuine goods and counterfeit or infringing
goods, source of supply or place of consumption of lawful goods, grounds for
identifying goods produced beyond the scope of licensing of industrial property
object or imports other than parallel imports.
3. The agency competent to handle the violation
may conduct at its own will inspection, verification, collection of evidence,
determination of the scope of industrial property rights protection and
identification of the act of violation under the law on intellectual property.
When necessary, it may request a functional agency to conduct verification,
collect evidence of violation, request the state management agency in charge of
industrial property to give its expert opinions or request industrial properly
assessment to identify the scope of protection and infringing elements.
4. The person competent to handle the violation
may base him/herself on the industrial property rights holder's written
confirmation of goods or service bearing a counterfeit mark or geographical
indication, written expert opinions of the state management agency in charge of
industrial property and written assessment conclusion to identify the violation
but shall take legal responsibility for his/her violation conclusion and
violation-handling decision.
5. The agency competent to handle the violation
may provide relevant information on the place of production, consumption
channel and source of supply of counterfeit or infringing goods and
circumstances of the case at the request of the industrial property rights
holder or a person competent to settle disputes or sanction violations of
another agency or organization, provided that such supply of information and
documents does not affect the effectiveness of the concerned case handling and
is not confidential as prescribed by law.
6. The agency competent to handle the case may request
the party requested to be handled for his/her/its violation and parties with
related rights and benefits in the case to provide information, documents and
evidence to prove their requests and arguments or to disprove requests and
arguments of other parties; request the party currently keeping or controlling
evidence and documents related to the case of violation to furnish such
evidence and documents as a basis for handling the case.
7. The industrial property rights holder or his/
her/its authorized representative may request the agency competent to handle
the violation to permit his/her/its participation and assistance in the
inspection, examination, verification, collection of evidence, identification
of genuine goods, counterfeit or infringing goods and infringing elements on
goods, articles, raw materials, materials and means of business, and
determination of measure(s) to handle the infringing goods or service. The
agency competent to handle the violation shall decide to permit the
participation as requested as prescribed in this Clause, unless it is necessary
to protect a trade secret at the justifiable request of the handled party.
Article 27. Handling of
violations involving disputes
1. In case a complaint, denunciation or dispute
arises concerning the registration right, ownership right, right to request
handling of violation, conditions or scope of protection of concerned
industrial property rights after a written request for handling of a violation
is accepted, the agency competent to accept the case for handling shall take
the following handling measures:
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b) Requesting the industrial property rights
holder to give explanations or make commitment or to request the state
management agency in charge of industrial property to clarify the legal status
of industrial property rights subject to the complaint, denunciation or
dispute.
Within 30 working days after receiving a written
explanation or commitment of the industrial property rights holder or a written
reply of the state management agency in charge of industrial property, the
agency competent to accept the case for handling shall reply the requester of
whether it will carry out handling procedures or refuse to handle the
violation.
2. In case a written request for handling of a
violation has been accepted but parties involved in the case reach an agreement
and propose a handling measure in compliance with the law on intellectual
property which does not affect the rights and interests of a third party,
consumers and the society, the agency competent to handle the violation shall
recognize such handling measure and terminate the handling of the case.
Article 28. Refusal to
handle or termination of handling of violations
1. A violation-handling agency shall refuse to
handle a violation in the following cases:
a) The written request for handling of the violation
is filed when related industrial property rights are disputed;
b) The requester fails to meet requirements of
the violation-handling agency on explanation about or addition of evidence
proving the status of the industrial properly rights holder and the violation
under Point b, Clause 2, Article 25 of this Decree;
c) The statute of limitations for sanctioning
the administrative violation has expired under Clause 1, Article 6 of the Law
on Handling of Administrative Violations;
d) Results of verification by the
violation-handling agency or a police office disprove the violation as
described in the written request for violation handling;
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e) The act is neither regarded as a violation
under the law on intellectual property nor subject to any administrative
sanction specified in this Decree.
2. A person accepting a written request for
handling of a violation shall cease procedures for handling the violation in
the following cases:
a) Arising a complaint, denunciation or dispute
after the request is accepted and pending results of handling by a competent
agency defined in Clause 1, Article 27 of this Decree;
b) Lack of grounds to identify act infringing
industrial property rights after having accepted the written request for
handling of the violation;
c) The requester requests in writing withdrawal
of the written request for violation handling;
d) The involved parties can reach agreement on
the handling of the case under Clause 2, Article 27 of this Decree.
3. In case a violation is related to the
production of or trading in a goods or its package, stamp, label or other
articles bearing a counterfeit mark or geographical indication, a person with
sanctioning competence shall still carry out procedures for administratively
sanctioning this violation even after receiving a notice of withdrawal of the
written request for violation handling under Point c, Clause 2 of this Article.
Article 29. Coordination in
the handling of violations
1. Requirements for coordination in the handling
of violations:
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b) The agency receiving the request for
coordination shall reply within the indicated time limit, unless it refuses to
coordinate. In case of refusal to coordinate, it shall clearly state the
reason.
2. Use of results of examination and handling of
written requests for violation handling from other agencies:
a) A violation-handling agency may use results
of identification of violations or determination of the value of infringing
goods conducted by another competent agency (if any) to ensure uniformity of
handling measures and sanctioning levels applicable to the same or similar
violations or related to the same industrial property object of the same
industrial property rights holder;
b) When competent agencies have different
opinions, conclusions and decisions on the identification of the violation,
measures and extent of handling of the violation, the person competent to
handle the violation may set up an advisory council composed of experts
prestigious in relevant professional domains to assist the competent person in
making conclusions on the violation.
Article 30. Sanctioning
procedures
1. When detecting a violation in domain of
industrial property, persons with sanctioning competence defined in Articles
from 16 thru 21 of this Decree and civil servants and public employees on their
duty shall make a minutes of administrative violation.
2. Order of and procedures for sanctioning the
administrative violation shall comply with provisions in section 1 Chapter III
of the Law on Handling of Administrative Violations.
Article 31. Execution of
sanctioning decisions and enforcement of executing sanctioning decisions
1. Execution of sanctioning decisions and
enforcement of executing sanctioning decisions comply with Law on Handling of
Administrative Violations.
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After the time limit mentioned above, if
infringing organizations and individuals fail to carry out procedures for
changing enterprise name, removing infringing elements from enterprise name,
agencies issuing decisions on sanctioning administrative violations shall
request the business register agencies to withdraw certificate of business
register. The business register agencies shall withdraw certificates of
business register as prescribed by law.
3. For decisions on sanctioning administrative
violations which apply remedial measure of forcible change of information about
domain names or return of domain names, organizations and individuals shall
conduct procedures for changing information of domain names or returning domain
names at agencies managing domain names, within 30 days after the effective day
of decisions on sanctioning administrative violations.
After the time limit mentioned above, if
infringing organizations and individuals fail to carry out procedures for
changing information about domain names, or returning domain names, agencies
issuing decisions on sanctioning administrative violations shall request the
agencies managing domain names to revoke such domain names. The agencies
managing domain names shall revoke domain names as prescribed by law.
4. Credit institutions and State Treasuries
shall collect fines, remit or refund collected fine amounts based on handling decisions
of persons with sanctioning competence as prescribed by law.
Article 32. Modification,
cancellation or invalidation of administrative sanctioning decisions
1. In case a decision on the settlement of a
dispute on industrial property is issued by a competent agency within 90 days
from the date of issuance of an administrative sanctioning decision, leading to
a change in grounds and contents of the administrative sanctioning decision, a
person with sanctioning competence shall issue a decision to modify, invalidate
or cancel partially or wholly the validity of the issued administrative
sanctioning decision to make it consistent with the dispute settlement
decision.
2. In case an administrative sanctioning
decision has been complied with by the sanctioned organization or individual, a
person with sanctioning competence shall take any of the following measures:
a) Requesting the Slate Treasury that has
collected the fine to refund partially or wholly the fine amount remitted under
the decision on modification, cancellation or invalidation of the sanctioning
decision at the request of the organization or individual that has paid the
fine. The request for fine refund may be accepted within 90 days after the date
of issuance of the decision on modification, cancellation or invalidation;
b) Returning the goods, article or means of
business which has been seized or confiscated but not yet handled. In case such
goods, article or means of business has been handled, the organization or
individual that has requested the violation handling shall pay a compensation
to the handled organization or individual according to the commitment realized
upon requesting the violation handling, if any;
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3. In case the issuance of an administrative
sanctioning decision is detected involving a violation of issuing competence,
procedures or grounds, such decision shall be handled under Article 15 of the
Law on Handling of Administrative Violations and the provisions of the law on
settlement of complaints and denunciations.
Chapter 5.
IMPLEMENTATION
PROVISIONS
Article 33. Effect
1. This Decree takes effect on October 15, 2013.
2. The Government's Decree No. 97/2010/ND-CP
dated September 21, 2010 on sanctioning of administrative violations in
industrial property cease to be effective on the effective date of this Decree.
Article 34. Transitional
provisions
For acts of administrative violations in domain
of industrial property happened before July 01, 2013, then detected or
currently being considered and handled, provisions beneficial for infringing
organizations and individuals will be applied.
Article 35. Implementation
organization
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2. The Ministry of Planning and Investment, and
Ministry of science and technology shall guide the processes of and procedures
for changing enterprise name, removing infringing elements from enterprise
name, and revoking certificates of business register in case where enterprise
names infringe law on intellectual property.
3. The Ministry of Information and
Communications, and Ministry of science and technology shall guide processes of
and procedures for changing, revoking domain names infringing law on intellectual
property.
4. The ministers, the heads of the
ministerial-level agencies, the heads of the agencies attached to the
Government, the presidents of the People’s Committees of the provinces and
centrally-run cities shall, in their functions and tasks, organize
implementation of this Decree.
ON BEHALF OF
THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung