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THE MINISTRY OF
SCIENCE AND TECHNOLOGY – THE MINISTRY OF PLANNING AND INVESTMENT
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SOCIALIST REPUBLIC
OF VIETNAM
Independence – Freedom – Happiness
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No.:
05/2016/TTLT-BKHCN-BKHDT
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Hanoi, April 05,
2016
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JOINT CIRCULAR
ON DETAILING AND
GUIDING MEASURES AGAISNT CORPORATE NAMES THAT INFRINGE INDUSTRIAL PROPERTY
RIGHTS
Pursuant to the Government's Decree No. 99/2013/ND-CP
dated August 29, 2013 on the sanctioning of administrative infringements in the
field of industrial property (referred to as the Decree No. 99/2013/ND-CP);
Pursuant to the Government's Decree
No. 78/2015/ND-CP dated September 14, 2015 providing for the enterprise
registration (referred to as the Decree No. 78/2015/ND-CP);
Pursuant to the Government’s Decree No.
20/2013/ND-CP dated February 26, 2013 defining functions, tasks, powers and
organizational structure of the Ministry of Science and Technology;
Pursuant to the Government’s Decree No.
116/2008/ND-CP dated November 14, 2008 defining the functions, tasks, powers
and organizational structure of Ministry of Planning and Investment;
The Minister of Science and Technology and the
Minister of Planning and Investment promulgate this Joint Circular to detail
and guide measures against corporate names that infringe industrial property
rights.
Chapter I
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Article 1. Scope of application
This circular details and guides grounds for
determining corporate names that infringe industrial property rights and
measures against such infringements; procedures for changing corporate names,
removing infringing elements in corporate names, revoking enterprise
registration certificates of companies whose names infringe the industrial
property rights.
Article 2. Regulated entities
1. Companies that are
established in accordance with the law on enterprises and use names that
infringe the industrial property rights.
2. Industrial property rights
holders of brands, trade names and geographical indications which are protected
(referred to the industrial property rights holders).
3. Authorities competent to
handle violations in the field of industrial property; and officials competent
to impose administrative penalties in the field of industrial property.
4. Business registration
offices affiliating to Departments of Planning and Investments (referred to as
the business registration offices).
5. Other relevant
organizations and individuals as regulated by the law.
Article 3. The competence to handle
infringements and decide the forcible change of corporate names or revocation
of enterprise registration certificates
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2. Authorities competent to
decide the forcible change of corporate names or revocation of enterprise
registration certificates are business registration offices where companies
that have infringing names are headquartered.
Chapter II
GROUNDS FOR DETERMINING CORPORATE NAMES THAT INFRINGE
INDUSTRIAL PROPERTY RIGHTS AND MEASURES AGAISNT SUCH INFRINGEMENTS
Article 4. Grounds for determining corporate
names that infringe industrial property rights
Grounds for determining corporate names that
infringe the industrial property rights shall comply with the law on
intellectual property, and be concluded or decided by authorities competent to
handle infringements or officials competent to impose administrative penalties
in the field of industrial property.
Article 5. Written conclusions on corporate
names that infringe industrial property rights
The written conclusion given by the competent
authority which specifies that the corporate name infringes the industrial
property rights as regulated in Point a Clause 4 Article 19 of the Decree No.
78/2015/ND-CP includes:
1. Conclusions on the
inspection made by the authority competent to handle infringements in the
industrial property rights as regulated in Clause 1 Article 3 of this Circular.
2. The decision on the
imposition of administrative penalties given by the competent official,
imposing administrative penalty which requests the company to change its name
or remove infringing elements from its name.
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1. The forcible change of the
company's name or forcible removal of infringing elements from the company’s
name shall apply to cases where the violating company fails to terminate its
act of using infringing name on products, means of business, means of services,
signboards or transaction documents, or fails to carry out procedures for
changing such infringing name according to the notice given by the competent
business registration office or agreements made between concerned parties.
2. If the decision on the
imposition of administrative penalties applies the forcible change of the
company’s name or forcible removal of infringing elements from the company’s
name, the violating company shall perform one or some of the following
measures:
a) Apply for change of the company’s name;
b) Send the written notice of change of the
company’s business lines to the business registration office;
c) Other measures as regulated by the law.
3. The application for change
of the company’s name or notice of change of the company’s business lines
regulated in Clause 2 of this Article shall be performed in accordance with
regulations of the law on enterprises.
Article 7. Revocation of enterprise registration
certificates
The revocation of the enterprise registration
certificate shall apply to the cases where the violating company fails to
comply with the forcible change of the company’s name or the forcible removal
of infringing elements from the company's name as prescribed in the decision on
the composition of administrative penalties given by the competent officials,
and fails to provide explanation as regulated in Point c Clause 1 Article 209
of the Law on enterprises to the business registration office within 06 months
as of the end of the deadline for sending such explanation or at written
request.
Chapter III
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Article 8. Procedures for handing infringements
related to corporate names
1. When
receiving the request for handing infringements related to the corporate name,
the infringement-handling authority may request the alleged violator to provide
information, documents and evidences as regulated in Point c Clause 2 Article
25 of the Decree No. 99/2013/ND-CP or conduct the inspection, verification and
collection of evidences. The infringement-handling authority shall give one of
the following documents of infringement handing results:
a) The written conclusion on the corporate name
that infringes the industrial property rights, specifying the assessment and
conclusion on the corporate name that comprises elements infringing rights of
brands, geographical indications and trade names that are protected; and the
using of such corporate name on products, means of business, means of services,
signboards or transaction documents in relevant business sectors is considered
as an infringement of the industrial property rights;
b) The decision on the imposition of administrative
penalties, specifying the forcible change of the company’s name or the forcible
removal of infringing elements from the company’s name.
2. The procedures for changing
the company’s name, changing business lines and revoking enterprise
registration certificate shall be performed in accordance with regulations of
the law on enterprises.
Article 9. Procedures for changing the company’s
name, removing infringing elements from the company’s name in the cases where
the company is granted with the written conclusion on the corporate name that
infringes the industrial property rights
1. In case the
infringement-handling authority makes a written conclusion on the corporate
name that infringes the industrial property rights as regulated in Point a
Clause 1 Article 8 of this Circular, such infringement-handling authority shall
send such written conclusion to the holder of industrial property rights and
violating company, and facilitate concerned parties in negotiating and reaching
an agreement within 30 days as of the issuance of such written conclusion.
2. If the concerned parties
reach an agreement within the prescribed time-limit and propose handling
measures in compliance with the law on intellectual property without affecting
rights and interests of third parties, consumers and the society as prescribed
in Clause 2 Article 27 of Decree No. 99/2013/ND-CP, the
infringement-handling authority shall issue a notice recording such agreement
and stop its settlement in this case;
In case the concerned parties cannot reach an
agreement within the prescribed time-limit, the holder of industrial property
rights is entitled to send written notice to the business registration office,
requesting the business registration office to grant the request to the company
whose name infringes the industrial property rights to change its name as
regulated. The written notice of the holder of industrial property rights shall
be enclosed with documents as regulated in Clause 4 Article 19 of the Decree
No.78/2015/ND-CP.
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3. Within 02 months as of the
date of notice, if the company that has the infringing name carries out
procedures for changing its name as regulated, the business registration office
shall send notices to the infringement-handling authority and the holder of
industrial property rights of the change of name of the violating company
within 05 workings days as of the date on which such change of the company's
name is approved by the business registration office.
4. Within 03 working days as
of the end of the time-limit for carrying out procedures for changing the
company's name as regulated in Clause 2 of this Article, if the company that
has the infringing name fails to carry out procedures for changing its name as
regulated, the business registration office shall send notices to the authority
competent to handle administrative violations in the field of planning and
investment, and the infringement-handling authority to inspect and handle in
accordance with the law on intellectual property.
Article 10. Procedures for changing the
company’s name, removing infringing elements from the company’s name and
revoking enterprise registration certificate in the cases where decisions on
the imposition of administrative penalties in the field of industrial property
are granted
1. If the competent official
grants a decision on the imposition of administrative penalties as regulated in
Point b Clause 1 Article 8 of this Circular, the infringement-handing authority
shall send such decision on the imposition of administrative penalties to
concerned parties and the business registration office. Within 60 days as of
the effective date of the decision on the imposition of administrative
penalties, the violating company must carry out procedures for changing its
name or removing infringing elements from its name as regulated in Clause 2
Article 6 of this Circular.
2. Within 10 working days as
of the end of the time-limit for executing the decision on administrative
penalties as regulated in Clause 1 of this Article, if the violating company
fails to carry out procedures for changing its name or removing infringing
elements from its name, the infringement-handing authority shall send notice to
the business registration office for the handing cooperation.
Within 05 working days as of the receipt of the
notice sent by the infringement-handing authority, the business registration
office shall grant a notice requesting the violating company to submit the
explanatory report as regulated in Point c Clause 1 Article 209 of the law on
enterprises.
3. Within 10 working days as
of the end of the time-limit for submitting the explanatory report as requested
by the business registration office, if the violating company fails to submit
such report, the business registration office shall send a notice to the
authority competent to handle administrative violations in the field of
planning and investment to handle in accordance with the law.
4. After 06 months as of the
end of the time-limit for submitting the explanatory report as regulated in
Clause 2 of this Article, if the violating company fails to submit such report
as requested, the business registration office shall revoke the enterprise
registration certificate according to procedures stated in Clause 4 Article 63
of the Decree No. 78/2015/ND-CP.
Article 11. Responsibility for cooperating to
impose measures against corporate names that infringe industrial property
rights
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2. The business registration
office where the violating company is headquartered shall receive and handle
the request for changing the name of violating company submitted by the
concerned holder of industrial property rights; the request for revoking
enterprise registration certificate from the infringement-handing authority.
3. The business registration
office shall cooperate and appoint its officials to the inspection team at the
request for cooperating to impose measures against the corporate name that
infringes the industrial property rights; request the violating company to
submit its explanatory report as regulated in Point c Clause 1 Article 209 of
the law on enterprises upon the receipt of notice from the infringement-handing
authority.
4. The infringement-handing
authority shall cooperate with the business registration office to consider the
explanatory report submitted by the violating company to impose handling
measures in conformity with current laws.
Chapter IV
IMPLEMENTATION
Article 12. Effect and implementation
organization
1. This circular shall take
effect as of May 20, 2016.
2. The Inspectorate of the
Ministry of Science and Technology; the Agency for Business Registration, the
Ministry of Planning and Investment shall inspect the implementation of
provisions of this Circular during the cooperation for imposing measures
against corporate names that infringe industrial property rights./.
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MINISTER
OF SCIENCE AND TECHNOLOGY
Nguyen Quan