THE GOVERNMENT
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SOCIALIST REPUBLIC OF
VIET NAM
Independence - Freedom – Happiness
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No: 12/1999/ND-CP
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Hanoi, March 06,
1999
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DECREE
ON SANCTIONS AGAINST ADMINISTRATIVE VIOLATIONS IN THE FIELD
OF INDUSTRIAL PROPERTY
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
Pursuant to the Civil Code of October 28, 1995;
Pursuant to the Ordinance on Handling of Administrative Violations of July 6,
1995;
In order to raise the effectiveness of the protection of industrial property
rights of organizations and individuals, to protect the legitimate rights and
interests of consumers, and contribute to the combat against the production and
trading of fake goods and commercial fraudulence;
At the proposal of the Minister of Science, Technology and Environment,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Definition
of terms
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1. "Industrial property object" shall
be understood as an invention, utility solution, industrial design, trademark
(including service mark) or appellation of origin of goods.
2. "Industrial property owner" shall
be understood as a holder of title of protection, owner of international
registration of trademark or lawful transferee of industrial property right(s)
to industrial property object(s) currently under protection.
3. "Title of protection" shall be
understood as an invention patent, utility solution patent, industrial design
patent, trademark registration certificate or certificate of the right to use
appellation of origin of goods .
4. "Violation elements" shall be
understood as:
- Those signs which are identical or mistakenly
similar to the trademarks or appellations of origin of goods under protection;
- Those signs and/or indications which violate
the regulations on indications for protection of industrial property rights and
industrial property obligations;
- Parts of products, products or
product-manufacturing processes identical to the parts of products, products or
product-manufacturing processes which are being protected as inventions or
utility solutions;
- Parts of products or products with outer
appearance being an industrial design or embodying a part or parts which are
the substantial forming features of the industrial design under protection.
Article 2.- Scope and
objects of application:
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2. All organizations and individuals that
intentionally or unintentionally commit violations of the regulations on
industrial property protection and State management, which are not serious
enough to be examined for penal liability, shall be sanctioned according to the
Ordinance on the Handling of Administrative Violations and this Decree.
3. Foreign organizations and individuals that
commit acts of administrative violation in the field of industrial property
protection and State management in the territory of Socialist Republic of
Vietnam shall also be sanctioned according to this Decree, unless otherwise
provided for by international treaties which Vietnam has signed or acceded to.
Article 3.- Principles
of application of sanctioning forms and levels
1. For each act of administrative violation in
the field of industrial property, the violating organization or individual
shall be subject to either of the two main sanctioning forms: warning or fine.
Warning shall apply to unintentional violations;
minor first-time violations with extenuating factors.
In case of fine, the fine level shall correspond
to the nature and seriousness of the violation. A violation with extenuating
factors may be subject to a lower fine but not lower than the minimum level in
the fine bracket. A violation with aggravating factors may be subject to a
higher fine but not higher than the maximum level in the fine bracket.
2. Depending on the nature and seriousness of
the violation, the violating individual or organization may also be subject to
one or several forms of the following additional sanctions:
a) Stripping definitely or indefinitely the
right to use the business license or the operation license for industrial
property representation services;
b) Confiscating the exhibits and/or violation
means;
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a) Compulsory removal of violation elements on
products, goods or business facilities; compulsory rectification of false
information causing the violation; compulsory implementation of industrial
property obligations; compulsory addition of the industrial property
indications;
b) Compulsory destruction of articles with
violation elements and goods of inferior quality that may cause damage to human
health.
c) Compulsory compensation for damage caused by
the administrative violation.
The compensation for the damage caused by
administrative violations in the field of industrial property shall be made
according to the principle of mutual agreement between the damage causer and
the damage sufferer. For the material damage caused by an administrative
violation in the field of industrial property valued up to 1,000,000 VND, if
the involved parties can not reach agreement on the compensation level, the
person competent to sanction shall decide it. Damage valued at more than
1,000,000 VND, which the parties can not reach agreement on the level of
compensation for, shall be settled according to the civil procedures.
Forms of additional sanction and measures
prescribed in Clauses 2 and 3 of this Article shall be applied in cases of
necessity so as to thoroughly handle the violations, do away with the causes of
and conditions for continued violation and overcome the consequences of
administrative violations in industrial property.
Article 4.- The statute
of limitations for sanction
1. The statute of limitations for sanction
against an administrative violation in the field of industrial property is one
year from the date the violation is committed. For acts of production of and/or
trading in goods that infringe upon trademarks, appellations of origin of goods
and industrial designs under protection, such statute of limitations shall be
two years from the date the violation is committed. Upon expiry of the
above-said time limits, the organization or individual that has committed the
violation shall not be sanctioned, but may be subject to forcible destruction
of violation articles and/or goods that cause damage to human health.
2. For an individual who violates the
regulations on protection of industrial property rights and is prosecuted for
the offense of making and/or trading in fake goods, or served with the decision
to bring the case to court for trial according to the penal procedures, but
then there was a decision to suspend the investigation or the case, the statute
of limitations for sanction against such administrative violation shall be
three months from the date of issuance of such suspension decision.
3. If within the time limits prescribed in
Clauses 1 and 2 of this Article, the violating organizations or individuals
commit new industrial property violations, they shall be sanctioned for each
act of violation, and the statute of limitations for sanction shall be counted
from the date of committing the new violations.
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Chapter II
ACTS OF VIOLATION,
SANCTIONING FORMS AND LEVELS
Article 5.- Acts of
violating the regulations on the procedures for establishing and exercising the
industrial property rights, and the procedures for applying for licenses for
industrial property representation services.
1. A warning or a fine of 200,000 to 1,000,000
VND shall be imposed on an organization or individual that commits one of the
following acts:
a) Carrying out the procedures for establishing
or exercising the industrial property rights in order to avoid taking or take
acts in other fields prohibited or restricted by laws;
b) Carrying out the procedures for establishing
or exercising the industrial property rights for the purposes of unfair
competition, monopoly, illegal manipulation of market, abolishment of
industrial property objects, limitation or restriction of scope of protection
of industrial property rights of other persons, taking advantage or diminishing
the commercial goodwill of other business establishments.
c) Providing false information and/or evidences
in the appeal procedures concerning industrial property rights.
2. A fine of 2,000,000 to 10,000,000 VND shall
be imposed on an organization or individual that commits one of the following
acts:
a) Modifying, erasing or falsifying titles of
protection, certificates of industrial property right protection, but not
seriously enough to be examined for penal liability;
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c) Falsifying papers or committing dishonesty in
the process of applying for the granting or extension of certificate of
industrial property representation service organization or card of industrial
property attorney, but not seriously enough to be examined for penal liability.
3. Additional sanctioning forms:
a) Stripping of the right to use the business
licenses for 1 to 3 months for acts prescribed in Clause 1; 3 to 6 months for
acts prescribed in Clause 2 of this Article;
b) Confiscation of documents, materials, titles
of protection, certificates of protection of industrial property rights, which
are modified or falsified, for the acts prescribed in Clause 2 of this Article;
c) Confiscation of titles of protection or
certificates already granted to organizations or individuals that commit acts
prescribed in Points a and b, Clause 1 of this Article.
Article 6.- Acts of
violating the regulations on indications of protection of industrial property
rights
1. A warning or a fine of 500,000 to 2,000,000
VND shall be imposed on an organization or individual that commits one of the
following acts:
a) False indication (including symbol
indication) on the industrial property owner;
b) False indication (including symbol
indication) on products or services bearing element(s) under industrial
property protection;
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d) False indication that the products are
produced or services provided under a license;
e) False indication on the author of an
invention, utility solution or industrial design.
2. A warning or a fine of 1,000,000 to 5,000,000
VND shall be imposed on an organization or individual that commits one of the
following acts:
a) Failing to indicate the manufacture of
products or provision of services under a license with regard to products
manufactured or services provided under a license;
b) Failing to indicate, or unclearly and/or
inadequately indicating on the products the inscription "Made in
Vietnam" for products made in Vietnam under foreign licenses; the products
made in Vietnam under trademarks that may cause a misunderstanding that the
goods are from foreign countries or of foreign origin.
3. The additional sanctioning forms:
a) Stripping of the right to use the business
licenses for 1 to 3 months for acts prescribed in Clauses 1 and 2 of this
Article;
b) Confiscation of exhibits and/or
administrative-violation means, for acts prescribed in Clauses 1 and 2 of this
Article.
4. In addition to the sanctioning forms
prescribed in Clauses 1, 2 and 3 of this Article, the violating organization or
individual may be subject to one or several of the following measures:
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b) Compulsory addition of indications, for acts
prescribed in Clause 2 of this Article.
Article 7.- Acts of
violating the regulations on the industrial property consultancy and
representation services
1. A warning or a fine of 500,000 to 2,000,000
VND shall be imposed on an industrial property representation service
organization or industrial property attorney that commits one of the following
acts:
a) Deliberately providing false consultancy or
notification on the legal regulations on industrial property or information on
industrial property activities, thus causing damage to persons with lawful
industrial property rights;
b) Obstructing the routine process of
establishment or exercise of industrial property rights, thus causing damage to
persons with lawful industrial property rights;
c) Providing false consultancy or instructions
which lead to confusion, misunderstanding of the functions, scope of powers,
responsibilities of the concerned industrial property representation service
organization or industrial property attorney;
d) Collecting from clients national fee amounts
and levels or service charges related to the procedures for establishment and
protection of industrial property rights in contravention of the regulations;
e) Deceiving or coercing clients to enter into
industrial property representation service contracts, but not seriously enough
to be examined for penal liability;
f) Simultaneously representing the parties
involved in a dispute over industrial property rights, thereby causing damage
to the person who has lawful industrial property rights;
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h) Failing to provide information as requested
by the competent State authorities, or providing false information on matters
related to industrial property representation service activities.
2. A warning or a fine of 1,000,000 to 5,000,000
VND shall be imposed on an organization or individual that carries out
consultancy activities, industrial property representation services in the
establishment and exercise of the industrial property rights without any lawful
operation license for industrial property representation services.
3. A fine of 2,000,000 to 10,000,000 VND shall
be imposed on an organization or individual that commits act of modifying,
erasing and/or falsifying certificate of industrial property representation
service organization or card of industrial property attorney, which is not
serious enough to be examined for penal liability.
4. A fine of 5,000,000 to 20,000,000 VND shall
be imposed on an industrial property representation service organization or
industrial property attorney that commits one of the following acts:
a) Performing jobs relating to industrial
property activities beyond its/his/her functions, tasks and powers as
permitted;
b) Assuming wrongfully the name(s) of State
management body(ies) or official(s) of the State management body(ies) in charge
of industrial property to perform industrial property representation service
activities, but not seriously enough to be examined for penal liability.
5. The additional sanctioning forms:
a) Stripping of the right to use the business
licenses for 1 to 3 months, for acts prescribed in Clause 2 of this Article;
b) Stripping of the right to use the industrial property
representation service operation licenses for 1 to 3 months, for acts
prescribed in Clause 1; 3 to 6 months for acts prescribed in Clause 3 of this
Article;
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d) Confiscation of the falsified documents, for
acts prescribed in Clause 3 of this Article.
6. In addition to the sanctioning forms
prescribed in Clauses 1, 2, 3, 4 and 5 of this Article, the violating
organization or individual may be subject to one or several of the following
measures:
a) Compulsory rectification of false
information, for acts prescribed in Points a and c, Clause 1 of this Article;
b) Compulsory compensation for the damage caused
by the administrative violations, for acts prescribed in Clauses 1, 2 and 3 of
this Article.
Article 8.- Acts of
violating the regulations on industrial property obligations
1. A warning or a fine of 1,000,000 to 5,000,000
VND shall be imposed on an organization or individual that commits one of the
following acts:
a) Failing to perform the obligation to make or
register contracts for industrial property right transfer with the form,
content and procedures prescribed by industrial property legislation.
b) Failing to perform the obligation to register
trademarks for the products and/or services in the fields where the trademark
registration is required.
2. A fine of 2,000,000 to 10,000,000 VND for an
organization or individual that uses signs which make consumers misunderstand
or confuse or deceive them about the origin, properties, utility, quality and
value of goods and services bearing trademarks.
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4. The additional sanctioning forms:
a) Stripping of the right to use the business
licenses for 1 to 3 months, for acts prescribed in Clauses 1; 3 months to 1
year or indefinitely for acts prescribed in Clause 2 of this Article;
b) Confiscation of exhibits and
administrative-violation means, for acts prescribed in Point b, Clauses 1 and 2
of this Article.
5. In addition to the sanctioning forms
prescribed in Clauses 1, 2, 3 and 4 of this Article, the violating organization
or individual may be subject to one or all of the following measures:
a) Compulsory performance of the industrial
property obligations, for acts prescribed in Points a and b, Clause 1 and 3 of
this Article; compulsory removal of the violation elements on goods and
business facilities, for acts prescribed in Clause 2 of this Article;
b) Compulsory compensation for the damage caused
by the administrative violations, for the acts prescribed in Clauses 1, 2 and 3
of this Article.
Article 9.- Acts of
violating the regulations on protection of industrial property rights
1. A warning or a fine of 5,000,000 to
20,000,000 VND shall be imposed on an organization or individual that is not an
industrial property owner or a prior-user (for an invention, utility solution
or industrial designs) but carries out one of the following acts for commercial
purposes without the industrial property owner’s permission or the use license
granted by the Minister of Science, Technology and Environment (non-voluntary
license):
a) Producing (manufacturing, processing,
assembling, packaging) products or parts of products which are currently
protected as inventions, utility solutions or industrial designs;
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c) Exploiting products or parts of products,
which are currently protected as inventions or utility solutions;
d) Putting into circulation (sale and/or
transportation) and/or on advertisement (on media, sign-boards, business
facilities, other products and goods, service facilities, goods offer, sale
promotion, business transaction materials) in order to sell, offer for sale or
store for sale products or parts of products which are currently protected as
inventions, utility solutions or those produced under the process currently
being protected as an invention or utility solution;
e) Importing or exporting products or parts of
products which are currently protected as inventions, utility solutions, or
those produced under the process being currently protected as an invention or
utility solution;
f) Putting into circulation (sale and/or
transportation) and/or on advertisement (on media, sign-boards, business
facilities, other products and goods, service facilities, goods offer, sale
promotion, business transaction papers) in order to sell, offer for sale or
store for sale the following products:
- Products or parts of products with outer
appearance protected as an industrial design or embodying a part or parts which
are the basic shaping components of the industrial design under protection.
- Products or parts of products bearing signs or
with packages bearing signs identical or mistakenly similar to trademarks or
appellations of origin of goods which are currently protected for the goods of the
same kind or similar to such products, including the cases of using
appellations of origin of goods which have been translated into other languages
or accompanied by such words as "type", "model",
"adaptation" or the like;
g) Importing or exporting products prescribed in
Point f of this Clause;
h) Affixing (by all forms such as printing,
pasting, attaching, molding, stereotyping, etc.), on products or product
packaging, signs identical or mistakenly similar to trademarks or appellations
of origin of goods which are protected for the goods of the same kind or
similar to such products;
i) Providing services in the names or symbols,
or with signs affixed on service facilities, which are identical or mistakenly
similar to service marks protected for the services of the same kind or similar
to such services.
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3. A fine of 2,000,000 to 10,000,000 shall be
imposed on an organization or individual that commits one of the following
acts: producing, trading in, transporting, storing for trading, importing or
exporting decals, product labels, trademark samples or product packages, which
bear signs identical or mistakenly similar to trademarks, appellations of
origin of goods or industrial designs which are currently protected.
4. The additional sanctioning forms:
a) Stripping of the right to use the business
licenses for 1 to 6 months for acts prescribed in Clauses 1 and 3; 6 months to
1 year or indefinitely, for acts prescribed in Clause 2 of this Article;
b) Confiscation of exhibits and
administrative-violation means, for acts prescribed in Clauses 1, 2 and 3 of
this Article.
5. In addition to the sanctioning forms
prescribed in Clauses 1, 2, 3 and 4 of this Article, the violating organization
or individual may be subject to one or all the following measures:
a) Compulsory removal of the violation elements
on the products, goods or business facilities, for acts prescribed in Clauses 1
and 2 of this Article;
b) Compulsory compensation for the damage caused
by the administrative violation, for acts prescribed in Clauses 1 and 2 of this
Article;
c) Compulsory destruction of articles bearing
the violation elements, for acts prescribed in Clause 3 of this Article;
compulsory destruction of goods of inferior quality that may cause damage to
human health, for acts prescribed in Clauses 1 and 2 of this Article.
Chapter III
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Article 10.-
Sanctioning competence of the People’s Committees of all levels
The People’s Committees of all levels shall be
competent to sanction the acts of industrial property administrative violation
committed in the localities under their respective management as prescribed in
Articles 6, 7, 8 and 9 of this Decree. The sanctioning competence of the
People’s Committees of all levels are specified as follows:
1. The presidents of the People’s Committees of
rural districts, urban districts, provincial capitals and provincial towns
shall have the right to:
a) Serve a warning;
b) Impose a fine of up to 10,000,000 VND;
c) Confiscate exhibits and/or violation means
valued up to 100,000,000 VND;
d) Strip the right to use the business licenses
granted by the district level definitely or indefinitely;
e) Compel the removal of the violation elements
on the products, goods or business facilities; compel the public rectification
of false information leading to the violation;
f) Compel the compensation for the damage caused
by the administrative violation;
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2. The presidents of the People’s Committees of
provinces and centrally-run cities shall have the right to:
a) Serve a warning;
b) Impose a fine of up to 100,000,000 VND;
c) Confiscate exhibits and/or
administrative-violation means;
d) Strip the right to use the business licenses
granted by the district level or provincial level definitely or indefinitely;
e) Compel the removal of the violation elements
on the products, goods or business facilities; compel the public rectification
of false information leading to the violation;
f) Compel the compensation for the damage caused
by the administrative violation;
g) Compel the destruction of articles bearing
the violation elements or violation goods of inferior quality that may cause
damage to human health.
Article 11.- The
sanctioning competence of the specialized industrial property inspectorate
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1. A specialized industrial property inspector
who is on duty is competent to:
a) Serve a warning;
b) Impose a fine of up to 200,000 VND;
c) Confiscate exhibits and/or violation means,
valued up to 500,000 VND;
d) Compel the removal of the violation elements
on the products, goods or business facilities; compel the public rectification
of false information leading to the violation;
e) Compel the compensation for damage caused by
the administrative violation;
f) Compel the destruction of articles bearing
the violation elements or violation goods of inferior quality that may cause
damage to human health.
2. A specialized industrial property chief
inspector of a provincial/municipal Department of Science, Technology and
Environment has the right to:
a) Serve a warning;
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c) Confiscate exhibits and/or
administrative-violation means, valued up to 100,000,000 VND;
d) Compel the removal of the violation elements
on the products, goods or business facilities; compel the public rectification
of false information leading to the violation;
e) Compel the compensation for the damage caused
by the administrative violation;
f) Compel the destruction of articles bearing
the violation elements or violation goods of inferior quality that may cause
damage to human health.
g) Request the Director of the National Office
of Industrial Property to strip the right to use the operation licenses for
industrial property representation services.
3. The specialized industrial property chief
inspector of the Ministry of Science, Technology and Environment is competent
to:
a) Serve a warning;
b) Impose a fine of up to 20,000,000 VND;
c) Strip the right to use the operation licenses
for industrial property representation services definitely or indefinitely;
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e) Compel the removal of the violation elements
on the products, goods or business facilities; compel the public rectification
of false information leading to the violation;
f) Compel the compensation for the damage caused
by the administrative violation;
g) Compel the destruction of articles bearing
the violation elements or violation goods of inferior quality that may cause
damage to human health.
Article 12.- The
sanctioning competence of the police agency, customs authority and market
management agency
The head of District Police, the head of
Economic Police Division, the director of Provincial Police, the director of
the Economic Police Department, the head of the Border-Gate Customs Inspection
Team, the Director of Provincial Customs Department, the chief of the Market
Management Sub-Department and the director of the Market Management Department
shall have the right to apply administrative sanctions and other measures
against the acts of violating the regulations on protection of industrial
property rights in the domains under their respective competence as prescribed
in Clauses 1, 3, 4 and 5, Article 9 of this Decree and Articles 29, 30 and 33
of the Ordinance on Handling of Administrative Violations.
Article 13.- The
responsibilities of the specialized industrial property State management agency
in handling administrative violations
The National Office of Industrial Property shall
perform the function of State management over industrial property according to
law, and shall have to coordinate with other competent agencies at central and
local levels in handling administrative violations in industrial property, when
so requested by such agencies.
Article 14.- The
sanctioning procedures
1. Upon detecting a violation act or signs of an
administrative violation regarding industrial property, the person competent to
sanction shall have to order the immediate suspension of such violation act and
clearly explain the regulations on sanctions against administrative violations
regarding industrial property as well as the relevant provisions of industrial
property legislation to the violating organization or individual, and request
such organization or individual to strictly abide by the provisions of the
industrial property legislation.
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If he/she deems that the violation might be
subject to a fine, the person with sanctioning competence shall make a written
record on the administrative violation according to Article 47 of the Ordinance
on Handling of Administrative Violations.
3. If, after making the written record on the
violation, he/she deems that the violation handling requires evaluation and/or
conclusion of the specialized industrial property agency, the person with
sanctioning competence shall send the dossier and evidences of the violation
and a written request for expertise evaluation to the industrial property State
management agency at central or local level as stipulated in Article 13 of this
Decree for the evaluation and conclusion on the violation, as well as the
handling forms and measures suitable to the violation.
Within ten days after receiving such written
request and the dossier and evidences of the violation, the State management
agency in charge of industrial property shall reply the person with sanctioning
competence in writing.
4. Within fifteen days after making the written
record on the violation, the competent person shall have to issue a decision on
sanctioning the violation act. In case of a serious violation involving many
complicated circumstances, the said time limit may be prolonged but shall not
exceed thirty days. The issuance of the sanctioning decision and the contents
thereof shall comply with the provisions of Article 48 of the Ordinance on
Handling of Administrative Violations.
The effective date of a sanctioning decision
shall be its signing date or another date stated therein, which must not exceed
fifteen day after the signing of the sanctioning decision.
The sanctioning decision must be sent to the
sanctioned organization or individual within three days after its signing, and
at the same time to the National Office of Industrial Property for coordination
in supervising and carrying out the procedures for establishment, amendment,
suspension or cancellation of the relevant titles of protection, certificates
or licenses.
Article 15.- The
procedures for imposing fines
The imposing of a fine must comply with the
following regulations:
1. The fine level and the fine payment time
limit and place must be clearly specified in the sanctioning decision;
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3. The person imposing the fine is prohibited
from collecting the fine on the spot;
4. The collected fine amount shall be remitted
into the State budget via the account opened at the State Treasury;
5. The decision on a fine of 2,000,000 VND or
more must be sent to the People’s Procuracy of the same level.
Article 16.- The
procedures for stripping the right to use licenses
1. The procedures for stripping the right to use
the business licenses and the operation licenses for industrial property
representation services shall comply with the provisions of Article 50 of the
Ordinance on Handling of Administrative Violations.
The person with sanctioning competence shall
apply the sanctioning form of stripping the right to use the licenses in cases
where the violating organization or individual deliberately refuse to terminate
the violation act or is likely to resume the violation after the decision on
violation suspension is issued. The person with sanctioning competence, who has
decided to apply the sanctioning form of stripping the right to use the
license, shall have to clearly specify in the sanctioning decision the title,
type and serial number of such license and the duration of stripping the
license use right, and at the same time notify in writing the agency that has
granted such license thereof, clearly stating the reason and time limit for
tripping the right to use license.
If the type of to be-stripped license or the
stripping duration is deemed beyond his/her deciding competence, the person
with sanctioning competence shall have to issue a decision to suspend the
violation act and request the higher-level agency with sanctioning competence
or the licensing agency to issue a decision to strip the right to use or
withdraw the license.
2. The person with sanctioning competence shall
decide to apply the sanctioning form of stripping the right to use the license
for a definite time limit for cases where the violating organization or
individual is deemed able to take measures to overcome or restrict the
consequences caused by the violation, terminate the violation act and do away
with the causes and conditions for continued violation after a certain period
of suspending the production, business or service activities.
The applicable duration of stripping the right
to use the license must be in the time range prescribed for the relevant
violation act and correspond the duration necessary for the violating
organization or individual to overcome or restrict the violation consequences,
fully satisfy the requirements stated in the sanctioning decision and do away
with the causes and conditions for continued violation. Upon expiry of the time
limit stated in the sanctioning decision, the competent person who has issued
the decision on stripping the right to use the license must return the license
to the organization or individual that uses such license.
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Where a license is detected having been granted
ultra vires, not in compliance with the prescribed procedures, or with a
content contrary to law, the person with sanctioning competence shall promptly
withdraw the license, and at the same time promptly notify the licensing
agency, the agency competent to grant and manage such license, and the
competent State inspectorate.
Article 17.- The
procedures for temporary seizure of exhibits and violation means
1. The competence and procedures to apply the
measure of temporarily seizing exhibits and administrative-violation means shall
comply with the provisions of Article 41 of the Ordinance on Handling of
Administrative Violations.
2. The temporary seizure of exhibits and
violation means shall be applied in cases where it is necessary to immediately
prevent the violation act or secure evidences necessary to verify the involved
facts which shall serve as basis for handling the violation.
3. Upon expiry of the time limit for temporary
seizure of exhibits and violation means as prescribed, if the confiscation of
exhibits and/or violation means is deemed necessary, the competent person who
has decided the temporary seizure of exhibits and violation means may issue a
decision or request the agency with sanctioning competence to issue a decision
to confiscate the exhibits and violation means according to Article 51 of the
Ordinance on Handling Administrative Violations and Article 18 of this Decree.
Article 18.- The
procedures for confiscating exhibits and administrative-violation means
1. The procedures for confiscating exhibits
and/or administrative-violation means in the field of industrial property shall
comply with the provisions of Article 51 of the Ordinance on Handling of
Administrative Violations.
2. The confiscation of exhibits and means used
in the administrative violations in the field of industrial property shall be
applied in the following cases where:
a) The confiscation and sealing of such goods
and means are necessary, so as to obtain evidences and to ensure that the
evidences shall not be destroyed, abolished or deformed;
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c) The violating organization or individual has
neither capability nor conditions to do away with the violation elements on
goods, or deliberately does not fulfill the requirements of the person with
sanctioning competence regarding the removal of the violation elements,
modification or addition of signs and indications on goods and business
facilities;
d) Goods circulated on market, exported or
imported goods with violation elements, though their origin, owner, producer or
seller cannot be identified, there are enough grounds to determine that such
goods have not been produced or marketed by the owners of the relevant
industrial property objects;
e) The violation means are those with principal
function to produce violation goods or provide violation services.
Article 19.- The
procedures for dealing with confiscated exhibits and/or violation means
The procedures for dealing with the confiscated
exhibits and/or means used in the administrative violation in the field of
industrial property shall comply with the provisions of Article 52 of the
Ordinance on Handling of Administrative Violations and the following
regulations:
1. The destruction measure shall apply in cases
where the exhibits and violation means are the following objects:
a) Violation goods are of inferior quality,
causing damage to human life and health and living environment;
b) Violation goods and articles have no use
value;
c) Violation goods and articles are decals,
product labels, trademark samples, product and goods packages;
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2. In cases where the exhibits are goods or
production, business or service means which have use value, they shall be
handled through following measures:
a) Removal of the violation elements on goods
and production, business or service means and auction of such goods and
facilities, provided that the purchasers have measures to rationally make full
use of them and assure not to cause subsequent violations, not to affect the
legitimate rights and interests of the relevant owners of industrial property
objects. For means having the principal function to produce violation goods and
articles or provide violation services, the auction shall not be applied unless
the purchasers have remedial measures or secure the use of such means for other
functions or as raw materials;
b) Auction of goods, provided that the purchasers
have been granted a lawful license by the industrial property owner, the goods
meet the set quality standards and the purchaser has measures to secure the
addition of indications as prescribed;
c) In cases where the violation elements cannot
be removed or there are not enough conditions for auction as prescribed in
Points a and b of this Clause, such goods or means may be distributed to users
for non-commercial purposes (such as humanitarian, social welfare, research or
education purpose), provided that the exploitation or use of such products does
not affect the legitimate rights and interests of the relevant owners of the
industrial property objects.
Article 20.- Execution
of the sanctioning decisions
1. If past five days after receiving the sanctioning
decision, the sanctioned organization or individual still fails to voluntarily
abide by such decision, the person with sanctioning competence shall issue a
decision on coercive enforcement of the sanctioning decision.
2. The execution of sanctioning decisions, the
coercive enforcement of sanctioning decisions, and the statute of limitations
for enforcement of sanctioning decisions shall comply with provisions in
Articles 54, 55 and 56 of the Ordinance on Handling of Administrative
Violations.
Chapter IV
SETTLEMENT OF COMPLAINTS
AND DENUNCIATIONS, AND HANDLING OF VIOLATIONS
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1. If persons competent to sanction administrative
violations in the field of industrial property commit acts of violating the
regulations on administrative sanctions, harassing, tolerating or covering up
the violators, failing to sanction or sanctioning ultra vires, they shall,
depending on the nature and seriousness of the violation, be disciplined or
examined for penal liability. If material damage is caused to the State,
organizations and/or citizens, the compensation must be made according to laws.
2. The procedures for lodging and settling
complaints and denunciations by organizations and individuals that have been
sanctioned for administrative violations in the field of industrial property
shall comply with Chapter VIII of the Ordinance on Handling of Administrative
Violations and the Ordinance on the Procedures for Settling Administrative
Cases. The procedures for handling violations, which are applicable to the
person competent to sanction administrative violations and the person subject
to sanctions against administrative violations in the field of industrial
property, shall comply with Chapter IX of the Ordinance on Handling of
Administrative Violations.
Chapter V
IMPLEMENTATION
PROVISIONS
Article 22.- This
Decree takes effect 15 days after its signing. The provisions in Point a, Clause
1 and Point a, Clause 3, Article 15 of Decree No. 57/CP of May 31, 1997 on the
sanctions against administrative violations in the field of measurement and
goods quality are now replaced by the provisions on sanctions against the acts
of production of and/or trading in goods bearing the trademarks identical or
mistakenly similar to those of other establishments as prescribed in this
Decree.
Article 23.- The
Minister of Science, Technology and Environment, the Minister of Trade, the
Minister of Public Security, the Minister of Finance and the General Director
of Customs shall, within their respective management function, have to guide
and inspect the implementation of this Decree.
Article 24.- The
ministers, the heads of the ministerial-level agencies and the agencies
attached to the Government and the presidents of the People’s Committees of the
provinces and centrally-run cities shall have to implement this Decree.
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