THE
MINISTRY OF SCIENCE AND TECHNOLOGY
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
11/2015/TT-BKHCN
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Hanoi,
June 26, 2015
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CIRCULAR
DETAILING AND GUIDING A NUMBER OF ARTICLES OF THE
GOVERNMENT’S DECREE NO. 99/2013/ND-CP OF AUGUST 29, 2013, ON SANCTIONING OF
ADMINISTRATIVE VIOLATIONS IN THE FIELD OF INDUSTRIAL PROPERTY
Pursuant to the 2012 Law on
Handling of Administrative Violations;
Pursuant to the 2005 Law on
Intellectual Property; and the 2009 Law Amending and Supplementing a Number of
Articles of the Law on Intellectual Property (below referred to as the Law on
Intellectual Property);
Pursuant to the Government’s
Decree No. 81/2013/ND-CP of July 19, 2013, detailing a number of articles of
and measures to implement the Law on Handling of Administrative Violations;
Pursuant to the Government's
Decree No. 99/2013/ND-CP of August 29, 2013, on sanctioning of administrative
violations in the field of industrial property;
Pursuant to the Government's
Decree No. 103/2006/ND-CP of September 22, 2006, detailing and guiding a number
of articles of the Law on Intellectual Property concerning industrial property;
and Decree No. 122/20I0/ND-CP of December 31, 2010, amending and supplementing
a number of articles of Decree No. 103/2006/ND-CP (below referred to as revised
Decree No. 103/2006/ND-CP);
Pursuant to the Government’s
Decree No. 105/2006/ND-CP of September 22. 2006, detailing and guiding a number
of articles of the Law on Intellectual Property concerning protection of
intellectual property rights and stale management of intellectual property; and
Decree No. 119/2010/ND-CP of December 30, 2010, amending and supplementing a
number of articles of Decree No. 105/2006/ND-CP (below referred to as revised
Decree No. 105/2006/ ND-CP);
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At the proposal of the Chief
Inspector and the Director of the Legal Department,
The Minister of Science and
Technology details and guides a number of articles of the Government s Decree No.
99/2013/ND-CP of August 29, 2013, on sanctioning of administrative violations
ill the field of industrial property.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of regulation and subjects of application
1. Scope of regulation:
This Circular details and guides a
number of articles of the Government’s Decree No. 99/2013/ND-CP of August 29,
2013, on sanctioning of administrative violations in the field of industrial
property (below referred to as Decree No. 99/2013/ND-CP).
2. Subjects of application:
a/ Organizations and individuals
that commit administrative violations in the field of industrial property;
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c/ Other subjects involved in the
handling of administrative violations in the field of industrial property.
Article 2.
Subjects to be sanctioned for administrative violations
1. Individuals that commit
administrative violations in the field of industrial property, including:
a/ Vietnamese citizens or
foreigners;
b/ Business households established
and operating in accordance with the law on business registration.
2. Organizations that commit
administrative violations in the field of industrial property, including:
a/ Public non-business units,
political organizations, socio-political organizations,
socio-political-professional organizations, social organizations, and
socio-professional organizations;
b/ Economic organizations
established in accordance with the Law on Enterprises, including private
enterprises, joint-stock companies, limited liability companies and
partnerships;
c/ Economic organizations
established in accordance with the Law on Cooperatives, including cooperatives
and unions of cooperatives;
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dd/ Other lawfully established
organizations.
Article 3.
Additional sanctions
Confiscation of material evidence
and means used for commission of administrative violations specified at Point
a, Clause 2, Article 3, and Point a, Clause 12, Article 12, of Decree No.
99/2013/ND-CP, shall be applied to violations due to intentional fault when:
1. It is necessary to prevent
material evidence and means used for commission of violations from being
destroyed or dispersed or having their state changed, or to minimize the
possibility of subsequent violations.
2. Violators arc unidentifiable.
Article 4.
Remedies
1. Remedies specified at Point a,
Clause 3, Article 3 of Decree No. 99/2013/ND-CP shall be taken as follows:
a/ Forcible removal of infringing
elements shall be applied to material evidence and means used for commission of
violations which are products, goods, signboards, means of business, and
transaction documents bearing signs of infringement upon industrial property
rights or misleading trade indications.
One or more than one method, such
as detachment, disassembly, cut-off, erasure, abrasion or other appropriate
measures, may be used to remove infringing elements from material evidence and
means used for commission of violations;
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c/ Forcible change of enterprise
name or removal of infringing elements from enterprise name shall be applied to
cases where the party requested to be handled for infringements fail to
terminate its act of using an infringing enterprise name or fails to carry out
procedures for changing an infringing enterprise name according to the notice
of the business registry office or the agreement between the parties.
2. Forcible destruction of goods,
material evidence and means used for commission of violations prescribed at Point
d, Clause 3, Article 3 of Decree No. 99/2013/ND-CP shall be applied to:
a/ Goods bearing counterfeit marks
or geographical indications; raw materials, materials and means used
principally for manufacture and trading of goods bearing counterfeit marks or
geographical indications; stamps, labels and articles bearing counterfeit marks
or geographical indications; stamps, labels and articles containing infringing
elements;
b/ Goods which are no longer
usable;
c/ Goods which are harmful to
health of humans, livestock, plants and the environment;
d/ Goods from which infringing
elements cannot be removed or from which the removal of infringing elements
cannot lead to the thorough prevention of infringing acts or will render the
application of other remedies impossible.
3. For infringing goods, raw
materials, materials and means used principally for manufacture of infringing
goods, material evidence and means used for commission of violations, competent
agencies shall base themselves on properties and characteristics of goods and
specific circumstances and conditions of the cases to decide on appropriate
handling measures after consulting rights holders, requesters for infringement
handling and the involved organizations and individuals.
After infringers remove infringing
elements from goods, infringement handling agencies may:
a/ Allow infringers to use
infringing goods, raw materials and materials as materials for manufacture of
other goods or to distribute or use them for non-profit purposes without
affecting rights holders’ ability to exploit them, prioritizing humanitarian,
charity or social service purposes; or,
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4. Forcible payment of illicit
profit amounts earned through the commission of administrative violations
specified at Point h, Clause 3, Article 3 of Decree No. 99/2013/ND- CP shall be
applied when there are valid invoices and documents proving that infringements
were committed (stating the volume and value of infringing goods) and
infringing goods were detected up to the time of inspection and examination.
Procedures for paying illicit
profit amounts into the State Treasury are similar to those for paying fines
under administrative sanctioning decisions. In case agencies with infringement
handling competence have accounts for temporary collection opened at the State
Treasury, these illicit profit amounts shall be paid into such accounts.
Periodically, agencies with infringement handling competence shall remit such
amounts into the State Treasury in accordance with law.
5. Violators shall bear all
expenses for the application of the remedies under Article 85 of the Law on
Handling of Administrative Violations.
Article 5.
Valuation of infringing goods and services under Article
4 of Decree No. 99/2013/ND-CP
1. The total value of infringing
goods and services at the time of commission of an administrative violation
prescribed in Chapter II of Decree No. 99/2013/ND-CP shall be determined
according to the following formula:
Total value of infringing goods and
services is (=) the quantity of infringing goods or volume of infringing services
multiplied by (x) the unit price of infringing goods or services at the time of
commission of the administrative violation.
2. The valuation of infringing
goods and services must comply with Clause 1, Article 4 of Decree No.
99/2013/ND-CP.
Where there are grounds to believe
that listed prices or prices stated in contracts or sale and purchase invoices
or import declarations specified at Point a, Clause 1, Article 4 of Decree No.
99/2013/ND-CP are untruthful, competent agencies shall apply next prices in the
priority order prescribed at Points b and c, Clause 1, Article 4 of Decree No.
99/2013/ND-CP.
3. In case there are no grounds for
application of Clause 2 of this Article, the competent person handling the case
may issue a decision on temporary seizure of material evidence of infringements
and set up a valuation council under Clause 3, Article 4 of Decree No. 99/2013/
ND-CP.
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Article 6.
Determination of illicit profit amounts earned through
the commission of administrative violations
1. Illicit profit amounts earned
through the commission of administrative violations are benefits earned through
committing such administrative violations, including:
a/ Money;
b/ Valuable papers;
c/ Other assets.
2. Determination of illicit
monetary profit amounts:
a/ The monetary amount earned by a
infringer through committing an administrative violation in the field of
industrial property is (=) the quantity of goods or volume of services
illegally transferred, sold, dispersed or destroyed multiplied by (x) the unit
price.
The quantity of goods or volume of
services provided shall be determined on the basis of declaration by the
infringer and inspection and verification by the competent person.
The unit price shall be determined
on the basis of dossiers and documents of the infringer or the market price of
similar goods or services.
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b/ In case of illegal transfer, sale,
dispersal or destruction of banned, smuggled or counterfeit goods or provision
of services subject to conditional business, the money amount earned by the
infringer is (=) the quantity of goods or volume of services illegally
transferred, sold, dispersed or destroyed multiplied by (x) the unit price.
c/ In addition to goods and
services specified at Point b of this Clause, in case of illegal transfer,
sale, dispersal or destruction of other goods or services, the money amount
earned by the infringer is (=) the quantity of goods or volume of services
illegally transferred, sold, dispersed or destroyed multiplied by (x) the unit
price minus (-) direct costs of such goods or services (if the infringer has
sufficient dossiers and documents to prove the legality and validity of such
costs).
3. In case there are no grounds for
determination of illicit monetary profit amounts under Clause 2 of this
Article, illicit profit amounts shall be determined to be valuable papers or
other assets.
Illicit profit amounts being
valuable papers or other assets shall be determined under the the Ministry of
Finance’s guidance on illicit profit amounts earned through the commission of
administrative violations for payment into the state budget.
Chapter II
INFRINGEMENTS TO BE ADMINISTRATIVELY
SANCTIONED
Section 1.
INFRINGEMENTS OF REGULATIONS ON MANAGEMENT OF INDUSTRIAL PROPERTY ACTIVITIES
Article 7.
Infringements of provisions on indications of industrial
properly rights protection in Article 6 of Decree No. 99/2013/ND-CP
1. Act of false indication of legal
status specified at Point b, Clause 1, Article 6 of Decree No. 99/2013/ND-CP
shall be understood as the use of indicative information misleading that a
subject enjoys the industrial property rights protection in Vietnam though
he/she/it is not or has not been eligible for protection, including the case
where he/she/it has filed a registration application but is not yet granted a
protection title or his/her/its protection title has been revoked or
invalidated, or the term of protection has expired, for example:
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b/ Printing on his/her/its
products, goods, product or goods packages an indication misleading that such
products or goods are under patent or industrial design protection, such as
“product/goods is under industrial design protection,” “product/goods is under
patent,” “product is manufactured from the patented process of...,” including
the use of the symbol “P” or the word “Patent” together with numbers
(indicating that a product has been patented).
2. Act of false indication or
failure to provide an indication of goods manufactured under an industrial
property licensing contract under Point c, Clause 1, Article 6 of Decree No.
99/2013/ ND-CP shall be understood as:
a/ Act of false indication means an
act of inscribing on goods the phrase “manufactured under the industrial
property licensing contract of...” or an indication of similar meaning, regardless
of whether it is in Vietnamese or a foreign language, while the manufacturer
has not yet been lawfully licensed to use the industrial property subject
matter;
b/ Act of failure to provide an
indication means an act of failing to inscribe on goods or goods packages an
indication that such goods are manufactured under a mark licensing contract.
Article 8.
Infringements of provisions on industrial property
representation in Article 7 of Decree No. 99/2013/ND-CP
1. Act of concurrently acting as
representatives for industrial property rights disputing parties prescribed at
Point a, Clause 2, Article 7 of Decree No. 99/2013/ND-CP shall be understood as
either of the following:
a/ Providing one or more than one
service of industrial property representation specified in Clause 1, Article
151 of the Law on Intellectual Property to both the requester for handling and
the party requested to be handled for an infringement upon industrial property
rights in the same case;
b/ Providing one or more than one
service of industrial property representation specified in Clause 1, Article
151 of the Law on Intellectual Property to the party carrying out procedures
for opposing, requesting revocation or invalidation of the protection title or
handling the infringement while representing the protection title applicant or
holder in carrying out procedures for establishing, enforcing or protecting
industrial property rights in the same case.
2. Act of intentionally obstructing
the establishment, enforcement and protection of industrial property rights,
causing damage to persons with related rights and interests specified at Point
h, Clause 2, Article 7 of Decree No. 99/2013/ND-CP shall be understood as one
of the following:
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b/ Providing untruthful information
on the legal status of a protection title, an industrial property registration
application or a request for infringement handling and other documents in the
course of establishment, enforcement and protection of industrial property
rights, affecting the lawful rights and interests of the title holder;
c/ Filing groundless petitions or
complaints related to the establishment and protection of industrial property
rights in order to prolong the process of settlement by competent agencies,
causing material and spiritual damage to persons with related rights and
interests;
d/ Failing to perform or improperly
performing the obligations of industrial property representatives.
3. Serious errors or infringements
committed by industrial property representatives while practicing
representation which cause damage to the interests of the State or society
prescribed at Point b, Clause 4, Article 7 of Decree No. 99/2013/ND-CP shall be
understood as one of the following:
a/ Registering a confidential
invention overseas without permission of a competent agency;
b/ Disclosing information and
documents not yet permitted for disclosure or information classified as state
secret in the course of providing the service of industrial property
representation;
c/ Renting or leasing an industrial
property representation service practice certificate.
Article 9.
Infringements of provisions on industrial property
examination in Article 8 of Decree No. 99/2013/ND-CP
1. Act of disclosing information obtained
while conducting examination without permission of related parties prescribed
at Point b, Clause 3, Article 8 of Decree No. 99/2013/ND-CP shall be understood
as either of the following:
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b/ Disclosing information or
documents not yet permitted for disclosure or information classified as state
secret or business secret provided by a competent agency or a requester for
examination, for the examination.
2. Act of taking advantage of the
examiner status and examination activities for self- seeking purposes
prescribed at Point a, Clause 4, Article 8 of Decree No. 99/2013/ND-CP shall be
understood as either of the following:
a/ Taking advantage of the status
of an examination organization or examiner or the participation in examination
activities to influence involved organizations and individuals in order to earn
illicit profits;
b/ Conducting activities outside
areas of examination stated in the business registration certificate or
operation registration certificate in order to earn illicit profits.
3. Act of intentionally making
untruthful examination conclusions prescribed at Point b, Clause 4, Article 8
of Decree No. 99/2013/ND-CP shall be understood as an act of intentionally
making groundless examination conclusions not based on the information and
documents provided for the examination.
Section 2. ACTS
INFRINGING UPON INDUSTRIAL PROPERTY RIGHTS
Article 10.
Acts infringing upon industrial property rights on the
Internet
1. Acts regarded as satisfying the
conditions prescribed in Clauses 1, 2 and 3, Article 5 of revised Decree No.
105/2006/ND-CP and committed on the Internet against consumers or information
users in Vietnam shall also be concluded as acts infringing upon industrial
property rights and administratively sanctioned under Articles 10, 11 and 12 of
Decree No. 99/2013/ND-CP.
2. Owners of national domain names
that hire other organizations and individuals to commit acts mentioned in
Clause 1 of this Article shall also be regarded as having committed acts
infringing upon industrial property rights and been sanctioned under Articles
10, 11 and 12 of Decree No. 99/2013/ND-CP.
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The identification of acts
infringing upon rights to inventions must comply with Articles 5 and 8 of
revised Decree No. 105/2006/ND-CP and the following guidance:
1. A product/product part/process
in question shall be regarded as identical or similar to a protected
product/product part/process in a certain (independent and dependent) point of
the protection request in an invention patent/utility solution patent if all
basic technical specifications (features) stated in that point can be found in
the product/product part/process in question in the identical or similar form,
in which:
a/ Two technical specifications
(features) are regarded as identical if they have the same nature, utility and
method of utilization and share the same connection with other specifications
stated in the protection request;
b/ Two technical specifications
(features) are regarded as similar if they have similar or interchangeable
natures and basically the same utility and method of utilization.
2. If a product/product
part/process in question does not contain at least one basic technical
specification (feature) stated in a certain point of the protection request, it
shall be regarded as neither identical nor similar to any product/product
part/process protected under that point.
Article 12.
Acts infringing upon rights to industrial designs
The identification of acts
infringing upon rights to industrial designs must comply with Articles 5 and 10
of revised Decree No. 105/2006/ND-CPand the following guidance:
1. A product/product part in
question shall be regarded as a replication of a protected industrial design if
it has a combination of visual shaping (external appearance) features
incorporating all functional and non-functional shaping features of the
protected industrial design.
2. A product/product part in
question shall be substantially regarded as a replication of a protected
industrial design if it has a combination of visual shaping (external
appearance) features incorporating all functional shaping features of the
protected industrial design and they are different from each other only in
their shaping features that are not easily identified and remembered.
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4. Functional shaping features of a
protected industrial design shall be understood as shaping features that can be
easily identified or remembered and used to distinguish an industrial design as
a whole from another. Functional shaping features may be configuration, pattern
and correlation between configuration and/or pattern features, and color
features identified on the basis of the set of photos/drawings enclosed with
the industrial design patent.
Article 13.
Acts infringing upon rights to marks
The identification of acts
infringing upon rights to marks must comply with Articles 5 and 11 of revised
Decree No. 105/2006/ND-CP and the following guidance:
1. Grounds for assessing
confusability of a sign with a protected mark include:
a/ Scope of protection in whole and
in each component of the mark; similarity between the sign and the mark in
whole and in distinctive components, especially those making strong impression
on consumers;
b/ Relevance of the goods or
service by function, utility or composition; practice and custom of sale,
purchase, distribution, selection and use of the goods or service; conditions,
methods and places of display, distribution, marketing, promotion and sale and
purchase of the goods or service;
c/ Characteristics and level of
attention of consumers when selecting, purchasing and selling the goods or
service;
d/ Other criteria such as practical
use and protection of similar marks for the same goods; effect of other elements
suggestive of the relation between the goods or service in question and the
protected goods or service;
dd/ Evidence of consumer confusion
consequences may be used to support the assessment of confusability of the use
of the sign but does not constitute a compulsory condition for making a
conclusion on confusability of the use of the sign.
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a/ In case of use of a sign
identical to a mark for a goods or service identical to that stated in a mark
registration certificate or certificate of internationally registered mark
protectable in Vietnam or the Official Gazette of international registration of
marks of the World Intellectual Property Organization, it is unnecessary to
examine the possibility of consumer confusion about the goods or service
bearing the mark;
b/ In case of use of a sign
identical to a mark for a similar or relevant goods or service; use of a sign
similar to a mark for a goods or service identical or similar or relevant to
that on the list of goods and services bearing marks as stated in a mark
registration certificate or certificate of internationally registered mark
protectable in Vietnam or the Official Gazette of international registration of
marks of the World Intellectual Property Organization, it is necessary to
examine the possibility of consumer confusion about the goods or service
bearing the mark.
3. Identification of elements
infringing upon rights to well-known marks:
a/ In case of use of a sign
identical or similar to a well-known mark or sign in the form of definition or
transcription from a well-known mark for any goods or service, including also
goods or service neither identical nor similar nor relevant to that on the list
of goods and services bearing well-known marks, it is necessary to examine the
possibility of confusion about the origin of goods or service or the relation
between the user of such sign and the owner of the well-known mark;
b/ In case the use of a sign
identical or similar to a well-known mark specified at Point a. Clause 3 of
this Article cannot cause a confusion about the origin of a goods or service
but causes a misleading impression on consumers about the relation between the
user of such sign and the owner of the well-known mark, it shall also be
regarded as an act infringing upon industrial property rights;
c/ When filing a request for
handling of an infringement against a well-known mark, a rights holder shall
provide evidence that such mark is well known in Vietnam according to the criteria
prescribed in Article 75 of the Law on Intellectual Property, regardless of
whether or not it has been registered for protection in Vietnam;
d/ Before deciding to carry out
procedures for handling the infringement, the agency competent to handle infringements
shall base itself on the criteria prescribed in Article 75 of the Law on
Intellectual Property to consider whether or not a mark is well known in
Vietnam. It may exchange professional opinions with the National Office of
Intellectual Property and/or consult an advisory council.
In case a well-known mark in
Vietnam is recognized according to the civil procedures or under a recognition
decision of the National Office of Intellectual Property, the infringement-
handling agency may base itself on relevant documents to consider the
recognition of the mark regarded as well-known in Vietnam if the recognition of
well-known marks by the above-said agencies at the time of infringement
handling request is still appropriate.
Article 14.
Acts infringing upon rights to trade names
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1. The ground for examining
elements infringing upon rights to a trade name is the protection scope of such
trade name determined on the basis of evidence of lawful use of such trade
name, indicating business subjects, business establishments, business
activities and products or services bearing the trade name, specifically as
follows:
a/ Evidence that the trade name is
used at the place of business (for example, at the place where there are
customers or business partners or where exists reputation through advertising,
marketing or distribution) in a lawful business sector (stated in the business
household registration certificate, enterprise registration certificate,
investment registration certificate, certificate of eligibility for business
operation for conditional business sectors or lines, tax identification number
registration and articles of incorporation registered with competent agencies,
or other papers of legal validity);
b/ Time of starting the use and use
course: The trade name has been known by business partners and customers
through goods, services and business activities (for example, the trade name is
used on goods, sale and purchase contracts, goods orders, business transaction
documents, advertising leaflets, customs declarations, tax payment documents
and other transaction documents).
2. Business household registration
certificate, enterprise registration certificate, investment registration
certificate, certificate of eligibility for business operation, tax
identification number registration and articles of incorporation are regarded
as evidence proving the lawfulness of business activities conducted under the
trade name. The name of a business establishment or an enterprise stated in the
above papers may only be regarded as a trade name when there arc documents
proving that the name of the business establishment or enterprise is used in
practical lawful business activities and satisfies the protection conditions
prescribed in Articles 76,77 and 78 of the Law on Intellectual Property.
3. In case the use of a mark, an
industrial design, a trade name or a geographical indication causes a conflict
and leads to a dispute, the settlement of such conflict and dispute must comply
with Article 6 of the Law on Intellectual Property, Article 17 of revised
Decree No. 103/2006/ ND-CP, Article 27 of Decree No. 99/2013/ND-CP, and the
following specific guidance:
a/ Based on documents and evidence
proving the time of arising or establishment of rights on the principle that
the right to a subject matter which arises or is established earlier shall be
protected.
In case related parties all have
evidence proving that their rights arise or are established lawfully, they may
exercise their rights within the scope and term of protection and the exercise
of their rights does not infringe upon the interests of the State, public interests,
lawful rights and interests of other organizations and individuals and does not
violate other relevant laws;
b/ Based on the protection title,
certificate or written certification of the competent agency and relevant
documents, contents of the contract or lawful agreement between the parties,
the scope of protection of the subject matter concurrently protectable as
different intellectual property subject matters shall be determined;
c/ In case the trade name or mark
bearing a geographical name is used before a protection title is granted for a
geographical indication or mark bearing the same geographical name and these
subject matters satisfy the protection conditions prescribed by law, the
bona-fide use of such subject matters shall not be regarded as an infringing
act under Points g and h, Clause 2, Article 125 of the Law on Intellectual
Property.
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Article 15.
Acts infringing upon rights to geographical indications
The identification of acts
infringing upon rights to geographical indications must comply with Articles 5
and 12 of revised Decree No. 105/2006/ND-CPand the following guidance:
1. The ground for assessing the
confusability of a sign with a geographical indication may be applied in an
appropriate manner like the ground for assessing the confusability of a sign
with a protected mark.
2. Infringing products and goods
may be:
a/ Products of the same type
bearing a sign identical to a geographical indication and manufactured in a
locality in the region bearing the protected geographical indication but not
satisfying the condition of particular quality under such geographical
indication;
b/ Products of the same type
bearing a sign identical or similar to a geographical indication but not
manufactured in a locality in the region bearing the protected geographical
indication, even if such products have equal quality specifications and product
manufacturing and management process;
c/ Products of the same type bearing
a sign identical or similar to a geographical indication, manufactured in a
locality in the region bearing the protected geographical indication, and
satisfying the condition of particular quality, but their manufacturer is not
permitted by the organization managing such geographical indication to use it;
d/ Similar products bearing a sign
identical or similar to a geographical indication for the purpose of taking
advantage of the popularity and reputation of such geographical indication
and/or misleading as to their geographical origin, regardless of whether or not
their place of manufacture is located in the region bearing the protected
geographical indication.
Article 16.
Acts infringing upon stamps, labels and articles
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2. Other stamps, labels and
articles specified in Article 13 of Decree No. 99/2013/ND-CP refer to stamps of
all kinds of manufacturers, distributors and importers to be affixed on
products, including quality control stamps containing infringing elements;
goods labels; decals; product packages; product parts which can be detached but
cannot be independently circulated, on which counterfeit marks or geographical
indications are printed, molded or embossed.
Article 17.
Transit of goods infringing upon industrial property
rights
Competent agencies shall handle
acts of transiting goods infringing upon industrial property rights in case
industrial property rights holders have sufficient grounds to prove such
transited goods cause damage to them or to consumers in Vietnam.
Article 18.
Parallel importation
1. Parallel importation prescribed
in Clause 2, Article 26 of Decree 99/2013/ND-CP means the importation by an
organization or individual of a product which has been lawfully launched on the
domestic or overseas market by its owner or the organization or individual with
licensed use right, including the case of compulsory licensing, or a person
with the right to prior use of industrial property subject matter, without
permission of the industrial property rights holder.
2. Parallel importation by
organizations and individuals shall not be regarded as an infringement upon
industrial property rights and parallel importers shall not be administratively
sanctioned.
Article 19.
Unfair competition in the field of industrial property
1. Act of using misleading trade
indications:
a/ A rights holder that may request
handling of the act of using a misleading trade indication is a business entity
that has made prior use of a trade indication specified in Clause 2, Article
130 of the Law on Intellectual Property in a public and stable manner in its
lawful business activities in Vietnam and has its reputation and goods or
services bearing such trade indication known to consumers.
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- Goods labels, which are scripts,
prints, drawings or photos of letters, pictures or images stuck, printed,
attached, molded, carved or engraved directly on goods or commercial packages
of goods or on other materials to be affixed on goods or commercial packages of
goods.
- Business mottos, which are groups
of words appearing beside enterprise names or labels affixed on products of
enterprises to emphasize business purposes or guidelines of enterprises or
customers targeted by such products.
- Business symbols, which are
signs, letters, figures or configurations uniquely designed and used as symbols
of enterprises in their business activities.
- Package designs, which are
designs and decorations of goods packages, including shapes, patterns, figures,
letters, numbers, colors, presentations, blending of colors, arrangements and
combination of these elements to create a particular impression or typical
feature of goods packages.
c/ A misleading trade indication is
a trade indication containing signs (components, presentation, combination of
elements, colors, overall impression on consumers) identical or confusingly
similar to a corresponding trade indication of the rights holder requesting
handling of an act of unfair competition used for identical or similar goods or
services.
The use of such an indication aims
to mislead consumers as to the business entity, business activities, commercial
origin of goods or services, geographical origin, manufacturing method,
function, quality, quantity or other features of goods or services or
conditions of goods or service provision.
d/ A requester for handling of an
act of unfair competition in using a misleading trade indication shall provide
evidence to prove that:
- The business entity has used the
trade indication in a public and stable manner to the knowledge of many
consumers in Vietnam, which may include information on advertising, marketing,
display and exhibition; sale turnover; number of products sold; system of
distribution agents, joint ventures and associated parties; investment scale;
appraisal by state agencies, the mass media, selection by consumers, and other
information showing the reputation of the business entity associated with the
trade indication in its business activities in Vietnam;
- The party requested to be handled
has used the misleading trade indication on goods, goods packages, means of
business, means of services or means of advertising.
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a/ A party that may request
handling of an act of registering, appropriating the domain name use right or
using domain names is the owner of a mark, geographical indication or trade
name and has used the subject matter in a public and stable manner in its
lawful business activities and has its reputation as an industrial property
rights holder and goods or services bearing such mark, geographical indication
or trade name known to Vietnamese consumers;
b/ Act of registering,
appropriating the domain name use right or using domain names shall be regarded
as an act of unfair competition in industrial property, except for domain names
already distributed through auction or contest for selection under Point a.
Clause 2, Article 48 of the Law on Telecommunications, falling in either of the
following cases:
- Using Vietnamese national domain
names “.vn” with sequences of characters identical or confusingly similar to
marks, trade names or geographical indications currently protected or widely
used for advertising, introduction of products, offer for sale of identical,
similar or related goods or services on websites which such domain names direct
to; causing a confusion about and taking advantage or causing damage to the
reputation of or material damage to owners of such marks, trade names or
geographical indications; or,
- Registering or appropriating the
right to use Vietnamese national domain names vn” with sequences of characters
identical to reputable or well-known marks, trade names or geographical
indications in Vietnam, while there are grounds to believe that organizations
or individuals register or appropriate the domain name use right only for
resale to earn profits or to prevent owners of such protected marks, trade
names or geographical indications from registering domain names.
c/ The party requesting handling of
the act of registering, appropriating domain name use right or using a domain
name regarded as an act of unfair competition in industrial property shall
provide the following evidence to prove that:
- The rights holder has used the
mark, geographical indication or trade name in a public and stable manner and
has its reputation as an industrial property rights holder and goods or
services bearing such mark, geographical indication or trade name (possibly
information on advertising, marketing, exhibition; sale turnover; number of
products sold; system of distribution agents, joint ventures and associated
parties; investment scale; appraisal by state agencies, the mass media,
selection by consumers, and other information showing the reputation of the
business entity; goods or services bearing such mark, geographical indication
or trade name) known to consumers in Vietnam.
- For the act of using a domain
name regarded as an act of unfair competition in industrial property: The
requesting party shall prove that the party requested to be handled has used
the domain name on the Internet for advertising or introducing products,
offering for sale identical, similar or related goods or services, causing
damage to the reputation of or material damage to the owner of the protected
mark, trade name or geographical indication; and the party requested to be
handled continues to use the misleading mark, trade name or geographical
indication through such domain name after being requested by the mark, trade
name or geographical indication owner to stop using it.
For the act of registering or
appropriating the domain name use right regarded as an act of unfair
competition in industrial property: The requesting party shall prove that the
party requested to be handled has registered but has not used the domain
containing characters identical to a mark, trade name or geographical
indication widely used and reputable in Vietnam; and there arc grounds to
believe that the party requested to be handled registers or appropriates the
domain name use right only for resale to earn profits or to prevent the owner
of the protected mark, trade name or geographical indication from registering a
domain name;
- The party requested to be handled
has no lawful rights to and interests from protected marks, geographical
indications and trade names of the rights holder.
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The reuse, repair or recycling by
organizations or individuals of products or product packages bearing marks,
trade names or geographical indications marketed by rights holders to create
other products shall also be regarded as an act of infringing upon industrial
property rights or an act of unfair competition in case such act misleads
consumers as to the commercial origin of products, business entity, business
activities or properties of products under relevant provisions on acts
infringing upon industrial property rights and acts of unfair competition.
This provision does not apply in
case where products bear an explicit notification that products and product
packages are reused, repaired or recycled and have no signs which may mislead
consumers as to the commercial origin of products, business entity, business activities
or properties of products under relevant provisions on acts infringing upon
industrial property rights and acts of unfair competition.
Article 21.
Means of business
Means of business specified in
Clause 15, Article 11, and at Point b, Clause 15, Article 14, of Decree No.
99/2013/ND-CP shall be understood as any means bearing or containing a
protected industrial property subject matter or trade indication and used to
serve business activities (for example, websites, introduction documents, name
cards, means of transport and utensils and decorations in business
establishments).
Chapter III
INFRINGEMENT HANDLING
PROCEDURES
Article 22.
Power of attorney for requesting infringement handling
When being attached to a written
request for infringement handling, a power of attorney for requesting
infringement handling must satisfy the conditions prescribed in Article 23 of
Decree No. 99/2013/ND-CP, with attention paid to the following cases:
1. In case the original power of
attorney containing the authorization for carrying out procedures to protect
industrial property rights has been filed in the previous dossier with the same
infringement handling agency, the rights holder shall submit a copy of the
power of attorney directing to the original.
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Article 23.
Requests for infringement handling
1. Requests for infringement
handling must satisfy the conditions prescribed in Article 24 of Decree No.
99/2013/ND-CP.
2. Documents and evidence attached
to a request:
a/ Copies of written
certifications, protection titles, certificates and other documents shall be
considered valid if the rights holder produces the originals for comparison or
copies authenticated by a competent agency or copies certified by agencies
granting the originals. The officer receiving the dossier shall sign for
certification on copies already compared with the originals without requiring
certification by notaries public or agencies that have granted such certificates
or titles;
b/ An explanatory report of the
rights holder (on turnover, reputation, advertising, widely used evidence,
copies of certificates and protection titles in other countries) provided to
the infringement handling agency shall be considered valid if there is a
commitment to bear the legal responsibility for contents and information of the
report and certification signature and seal (if any) of the rights holder or
its lawful representative. If the report has multiple pages, the rights holder
shall sign on each page and append a seal (if any) on every two adjoining
pages.
This provision also similarly
applies to documents provided by the party requested to be handled.
3. Documents proving the right to
request infringement handling:
a/ Documents proving the owner of a
trade name include documents and material evidence proving the prior and lawful
use of the trade name in the business line and sector satisfying the protection
conditions prescribed in Articles 76, 77 and 78 of the Law on Intellectual Property;
b/ Documents proving the owner of a
business secret include documents proving that the organization or individual
has lawfully held and taken measures to keep confidential information
classified as business secret under Articles 84 and 85 of the Law on
Intellectual Property;
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In addition to documents and
evidence proving the status of the rights holder specified in Article 24 of
revised Decree No. 105/2006/ND-CP, the rights holder may submit copies of
documents proving his/her/its status and produce the originals for comparison.
4. In a request for infringement
handling, the rights holder may request the handling of:
a/ One or more than one
infringement related to one or more than one industrial property subject matter
committed by the same organization or individual;
b/ One or more than one infringement
related to one industrial property subject matter committed by more than one
organization or individual;
c/ In ease of requesting handling
of one or more than one organization or individual committing an infringement
in the same locality, the rights holder shall file only one request with the
agency with handling competence in such locality;
d/ In case of requesting handling
of one or more than one organization or individual committing an infringement
in different localities, the rights holder may file a request with the agency
with handling competence in each locality or file a request with a central
agency with infringement handling competence in such localities.
5. In case different agencies arc
competent to handle an infringement, the rights holder may choose one from
among those agencies to file his/her/its request.
Article 24.
Consideration and settlement of requests for
infringement handling
1. If a request for infringement
handling has sufficient evidence of counterfeit goods or goods infringing upon
rights to a mark, a geographical indication or an industrial design, the
competent agency shall coordinate with the rights holder in inspecting,
examining and handling the infringement under Point d. Clause 2, Article 25 of
Decree No. 99/2013/ND-CP.
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a/ If the parties make their
statements at the request of the competent agency but new circumstances or
evidence are discovered in the case, the competent agency may request the
parties to make statements, counter-statements and provide additional evidence
under Clause 6, Article 26 of Decree No. 99/2013/ND-CP within the time limit
prescribed above.
The parties may provide to the
agency with infringement handling competence written expertise opinions of the
sate management agency in charge of industrial property, written conclusions of
industrial property examination, dispute settlement decisions and decisions on
handling of related or similar infringements of competent agencies and other
documents and evidence to prove their requests, arguments and statements and
clarify facts of the case.
b/ In case written statements of
the parties cannot clarify facts of the case and when requested by one or all
of the parties, the competent agency shall work directly with the parties. The
written record of opinions of the parties made during working with the
competent agency shall be used as a proof for settlement of the case;
c/ In case the parties reach an
agreement on measures to settle the case in compliance with the law on
intellectual property without affecting rights and interests of third parties,
consumers and the society, the competent agency shall record such agreement and
announce to stop the settlement of the case under Clause 2, Article 27, and
Point d, Clause 2, Article 28, of Decree No 99/2013/ND-CP.
3. If a request for infringement
handling is filed with different agencies competent to handle the same
infringement, the agency that first accepts the request is competent to settle
it. The rights holder shall notify other competent agencies of that acceptance.
a/ Before accepting the case, if
the agency receiving the request knows that another agency with handling
competence or a court has accepted the case, it shall issue a notice of refusal
to accept the request;
b/ After accepting the case and
before inspecting, examining and handling the infringement, if the
request-receiving agency knows that another agency with handling competence has
inspected, examined and handled the infringement or a court is dealing with the
case, it shall issue a notice of refusal to carry out procedures for
infringement handling;
c/ After conducting inspection and
examination, if the handling agency knows that another agency has conducted
inspection and examination, it shall request the latter's coordination in the
handling and agree to let either of them carry out sanctioning procedures. In
case another agency has handled the infringement but at the time of inspection
and examination, another organization or individual is detected to have
committed such infringement, the handling agency shall handle the infringement
with the aggravating circumstance of recidivism;
d/ In the course of handling the
infringement, if signs of crime are detected, the handling agency shall
transfer the case file to a competent investigative agency of the locality
where the infringement is committed.
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1. When requested by the industrial
property rights holder or the person with dispute settlement or infringement
sanctioning competence of another agency or organization defined in Clause 5,
Article 26 of Decree No. 99/2013/ND-CP, the agency with infringement handling
competence shall provide copies of the written record, documents, samples and
photos related to the infringement handling, provided the provision of such
information and documents does not affect the effectiveness of the infringement
handling and does not fall into any case of confidentiality keeping prescribed
by law.
2. If there is a request for
infringement handling prescribed in Article 24 of Decree No. 99/2013/ND-CP, the
agency with infringement handling competence shall send written conclusions,
the sanctioning decision and notice of refusal or suspension of infringement
handling to the requester in accordance with law.
Article 26.
Coordination in infringement handling
1. The National Office of
Intellectual Property, the Intellectual Property Science Institute and agencies
competent to handle infringements upon industrial property rights shall
coordinate with one another in handling infringements when receiving requests
for coordination in infringement handling under Clause 1, Article 29 of Decree
No. 99/2013/ND-CP.
2. The coordination in handling of
infringements related to enterprise names violating the law on intellectual
property must comply with the guidance in the joint circular of the Ministry of
Science and Technology and the Ministry of Planning and Investment.
3. The handling of infringements
related to domain names violating the law on intellectual property must comply
with the guidance in the joint circular of the Ministry of Science and
Technology and the Ministry of Information and Communications.
Article 27.
Coordination in the handling of infringements related to
products and goods harmful to health, environment or social safety
1. Upon receiving a request for
infringement handling or detecting an act infringing upon industrial property
rights related to products and goods harmful to health, environment or social
safety prescribed at Point b, Clause 3, Article 22 of Decree No. 99/2013/ND-CP,
the infringement- handling agency may ask the party requested to be handled to
provide information, documents and statements as evidence under Point a, Clause
3, Article 25 of Decree No. 99/2013/ND-CP, or shall coordinate with the rights
holder in conducting inspection, examination, verification and collection of
evidence. After examining documents and evidence, the infringement-handling
agency shall issue:
a/ Written conclusions on
infringement upon industrial property rights; and/or,
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2. In case the
infringement-handling agency issues written conclusions on infringement upon
industrial property rights specified at Point a, Clause 1 of this Article, it
shall send such conclusions to the rights holder and infringer and create
conditions for the parties to reach an agreement and negotiate within 30 days
after receiving such conclusions.
a/ In case the parties reach an
agreement and propose handling measures in compliance with the law on
intellectual property without affecting rights and interests of third parties,
consumers and the society under Clause 2, Article 27 of Decree No.
99/2013/ND-CP, the infringement-handling agency shall issue a notice recording
such agreement and stop the settlement of the case;
b/ In case the parties cannot reach
an agreement within the prescribed time limit, the infringement-handling agency
shall inspect, examine, and handle the infringement.
3. The infringement-handling agency
shall send written conclusions on the infringement, notice recording the
agreement between the parties or the decision on sanctioning of administrative
violation to the state management agency in the relevant sector or field for
coordinated infringement handling.
Article 28.
Settlement of cases upon occurrence of disputes
1. In case a dispute occurs under
Clause 1, Article 27 of Decree No. 99/2013/ND-CP, the competent agency
accepting the case for settlement may request the state management agency in
charge of intellectual property to clarify the legal status of industrial
property rights, specifically as follows:
a/ Information on the ownership and
use rights, licensing of the subject matter subject to a dispute, complaint or
denunciation;
b/ Scope of protection of
industrial property rights in question; scope and conditions of application of
the provisions on cases not regarded as infringements upon industrial property rights;
c/ Possibility of invalidation or
revocation of the protection title or change in the scope of protection of
industrial property rights in question.
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a/ The competent agency shall
consider stopping the handling of an infringement after accepting the request
for infringement handling in the following cases:
- When it receives a notice from
the state management agency in charge of industrial property of its acceptance
of a request for revocation or invalidation of the protection title, a
complaint about the scope of protection of industrial property rights related
to the subject matter in the request; or a notice from a court of its
acceptance of the infringement case; or a complaint about or a dispute on
industrial property rights related to the subject matter in the request;
- When it finds that the case
involves contents related to a contractual dispute between the parties on the
right to use the industrial property subject matter.
b/ A notice of stopping of the
settlement of a case must clearly state grounds and reasons for stoppage, and
rights and obligations of related parties, and shall be sent to the requester
for infringement handling, the party requested to be handled for infringement
and the agency competent to settle disputes and complaints.
3. The competent agency shall
request the rights holder to make statements and commitments under Point b, Clause
1, Article 27 of Decree No. 99/2013/ND-CP and consider handling the
infringement based on the grounds prescribed at Points a and c or Points a, b
and c below:
a/ The party requested to be
handled has filed a request for revocation or invalidation of the protection
title which is not yet accepted by the competent agency;
b/ The party requested to be
handled has filed an application for registration of protection of the subject
matter stated in the request for infringement handling with the state management
agency in charge of industrial property but there is no decision on grant of a
protection title;
c/ The requester requests continued
handling and commits to pay compensation under Point b, Clause 2, Article 32 of
Decree No. 99/2013/ND-CP in case the decision on sanctioning of administrative
violation is amended, cancelled or invalidated under a dispute settlement
decision of the competent agency.
4. Refusal to handle infringements:
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Article 29.
Competence of heads of specialized science and
technology inspection teams
Heads of specialized inspection
teams of the Ministry of Science and Technology and provincial-level
Departments of Science and Technology may use seals of agencies in charge of
inspection when issuing documents on application of measures to perform the
inspection tasks specified in Clause 1, Article 53 of the Law on Inspection.
Article 30.
Assistance of industrial property rights holders in the
inspection, examination, verification and handling of infringements
1. Industrial property rights
holders that request infringement handling may propose cooperation and
technical assistance, including information, documents, means of transport,
technical equipment and manpower, for agencies competent to investigate,
verify, collect evidence and handle material evidence and means used for
infringements under Point d, Clause 2, Article 25 of Decree No. 99/2013/ND-CP.
2. Expenses for assistance for the
investigation, verification and collection of evidence and handling of material
evidence and means for infringements in the field of industrial property
mentioned in Clause 1 of this Article shall be regarded as reasonable expenses
for industrial property rights protection and may be accounted as production
expenses under revised Decree No. 103/2006/ND-CP.
Chapter IV
ORGANIZATION OF
IMPLEMENTATION
Article 31.
Effect
This Circular takes effect on
August 11, 2015, and replaces the Minister of Science and Technology’s Circular
No. 37/2011/TT-BKHCN of December 27, 2011, guiding a number of articles of the
Government’s Decree No. 97/2010/ND-CP of September 21, 2010, on sanctioning of
administrative violations in the field of industrial property.
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1. Heads of the units of the
Ministry of Science and Technology, heads of related agencies and
organizations, and related individuals shall implement this Circular.
2. Any problems arising in the course
of implementation should be promptly reported to the Ministry of Science and
Technology for study and settlement guidance.
MINISTER
OF SCIENCE AND TECHNOLOGY
Nguyen Quan