THE SUPREME
PEOPLES COURT
THE SUPREME PEOPLES PROCURACY
THE MINISTRY OF PUBLIC SECURITY
THE MINISTRY OF JUSTICE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
01/2008/TTLT-TANDTC-VKSNDTC-BCA-BTP
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Hanoi, February
29, 2008
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JOINT CIRCULAR
GUIDING
THE EXAMINATION OF PENAL LIABILITY FOR ACTS OF INFRINGING UPON INTELLECTUAL
PROPERTY RIGHTS
In order to ensure the proper
and unified examination of penal liability for acts of infringing upon
intellectual property rights, contributing to protecting intellectual property
rights in Vietnam, the Supreme Peoples Court, the Supreme Peoples Procuracy,
the Ministry of Public Security and the Ministry of Justice jointly provide the
following guidance:
1. Examination of penal
liability for acts of infringing upon copyright and related rights
1.1. Those who intentionally
commit one of acts of infringing upon copyright or related rights specified in
Article 28 or Article 35 of the Law on Intellectual Property and fall into one
of the following cases will be considered having caused serious consequences
and examined for penal liability for the crime of infringing upon copyright
under Clause 1. Article 131 of the Penal Code if their act involves all other
crime-constituting elements:
a/ Committing violations on a
commercial scale and for commercial purposes;
b/ Causing to holders of
copyright or related rights material damage of between VND 50,000,000 and under
VND 150,000,000 (including damage due to infringement of copyright or related
rights and expenses paid by holders of copyright or related rights to remedy
consequences caused by the infringement);
c/ Goods involved in the
violation valued at between VND 50,000,000 and under VND 150,000,000.
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a/ Committing violations on a commercial
scale and for commercial purposes and having earned profits of between VND
30.000.000 and under VND 100,000.000:
b/ Causing to holders of
copyright or related rights material damage of between VND 150,000,000 and
under VND 450,000,000 (including damage due to infringement of copyright or
related rights and expenses paid by holders of copyright or related rights to
remedy consequences caused by the infringement);
c/ Goods involved in the
violation valued at between VND 150,000.000 and under VND 500,000,000.
1.3. Those who intentionally
commit one of acts of infringing upon copyright or related rights specified in
Article 28 or Article 35 of the Law on Intellectual Property and fall into one
of the following cases will be considered having caused particularly serious
consequences and examined for penal liability for the crime ofinfringing upon
copyright under Clause 2, Article 131 of the Penal Code if their act involves
all other crime-constituting elements:
a/ Committing violations on a
commercial scale and for commercial purposes and having earned profits of VND
100,000,000 or more;
b/ Causing to holders of
copyright or related rights material damage of VND 450,000.000 or more
(including damage due to infringement of copyright or related rights and expenses
paid by holders of copyright or related rights to remedy consequences caused by
the infringement);
c/ Goods involved in the
violation valued at VND 500,000.000 or more.
1.4. If a person intentionally
commits one of acts of infringing upon copyright or related rights specified in
Article 28 or Article 35 of the Law on Intellectual Property which does not
constitute a crime specified in Article 131 of the Penal Code but constitutes a
crime prescribed in other articles of the Penal Code, he/she will be examined
for penal liability for the crime prescribed in the relevant article of the
Penal Code.
2. Examination of penal
liability for acts of infringing upon industrial property rights
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a/ Having earned profits of
between VND 10,000,000 and under VND 50,000,000;
b/ Causing to mark owners
material damage of between VND 50,000,000 and under VND 150,000,000;
c/ Goods involved in the
violation valued at between VND 50,000,000 and under VND 150,000,000.
2.2. Those who, for business
purposes, intentionally commit of one of acts of infringing upon industrial
property rights involving goods with counterfeit marks specified in Clause 2,
Article 213 of the Law on Intellectual Property and fall into one of the
following cases will be considered having caused very serious consequences and
examined for penal liability for the crime of infringing upon industrial
property rights under Clause 1, Article 171 of the Penal Code:
a/ Having earned profits of
between VND 50,000,000 and under VND 150,000,000;
b/ Causing to mark owners material
damage of between VND 150,000,000 and under VND 450,000,000;
c/ Goods involved in the
violation valued at between VND 150,000,000 and under VND 500,000,000.
2.3. Those who, for business
purposes, intentionally commit of one of acts of infringing upon industrial
property rights involving goods with counterfeit marks specified in Clause 2,
Article 213 of the Law on Intellectual Property and fall into one of the
following cases will be considered having caused particularly serious
consequences and examined for penal liability for the crime of infringing upon
industrial property rights under Clause 1, Article 171 of the Penal Code:
a/ Having earned profits of VND
150,000,000 or more;
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c/ Goods involved in the
violation valued at VND 500,000,000 or more.
3. Conditions for penal
liability examination
Under Clause 1, Article 105 of
the Criminal Procedure Code, penal liability examination will only be carried
out:
a/ At the request of holders of
copyright or related rights, for cases guided at Item 1.1, Section 1 of this
Circular (Clause 1, Article 131 of the Penal Code);
b/ At the request of mark owners
or geographical indication-managing organizations, for cases guided at Item
2.1, Section 2 of this Circular (Clause 1, Article 171 of the Penal Code).
4. Disposal of exhibits
4.1. The disposal of exhibits
specified in Article 41 of the Penal Code and Article 76 of the Criminal
Procedure Code in cases related to crimes of infringing upon intellectual
property rights must be pursuant to Clause 5. Article 202 of the Law on
Intellectual Property and the guidance in Chapter IV of the Governments Decree
No. 105/2006/ND-CP of September 22, 2006, detailing and guiding the
implementation of a number of articles of the Law on Intellectual Property
regarding the protection of intellectual property rights and state management
of intellectual property.
4.2. In case it is stipulated by
Vietnamese law or treaties to which the Socialist Republic of Vietnam is a contracting
party that exhibits must be destroyed, procedure-conducting agencies shall
decide to destroy exhibits as stipulated, even if these exhibits are usable.
5. Implementation effect
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5.2. Any matters arising in the
course of implementation which need to be explained or additionally guided
should be reported to the Supreme Peoples Court, the Supreme Peoples Procuracy,
the Ministry of Public Security and the Ministry of Justice for timely
explanation or additional guidance.
FOR THE
PRESIDENT OF THE SUPREME PEOPLES COURT
VICE PRESIDENT
Dang Quang Phuong
FOR THE CHAIRMAN
OF THE SUPREME PEOPLES PROCURACY
VICE CLIAIRMAN
Hoang Nghia Mai
FOR
THE MINISTER OF PUBLIC SECURITY
VICE MINISTER
SENIOR LIEUTENANT-GENERAL
Le The Tiem
FOR
THE MINISTER OF JUSTICE
VICE MINISTER
Dinh Trung Tung