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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
97/2010/ND-CP
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Hanoi,
September 21, 2010
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DECREE
ON SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN INDUSTRIAL
PROPERTY
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the November 29, 2005 Law on Intellectual Property; and the June
19, 2009 Law Amending and Supplementing a Number of Articles of the Law on
Intellectual Property (below collectively referred to as the Law on
Intellectual Property);
Pursuant to the December 3, 2004 Law on Competition;
Pursuant to the June 29, 2006 Law on Information Technology;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative
Violations; and the April 2, 2008 Ordinance Amending and Supplementing a Number
of Articles of the Ordinance on Handling of Administrative Violations (below
collectively referred to as the Ordinance on Handling of Administrative
Violations);
At the proposal of the Minister of Science and Technology,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
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Article 2. Subjects of application
Vietnamese
organizations and individuals; foreign organizations and individuals that
commit violations of regulations on state management of industrial property and
infringements of industrial property rights or acts of industrial property-related
unfair competition in Vietnam; and other organizations and individuals involved
in the handling of administrative violations in industrial property.
Article 3. Sanctions and remedies
1. Each act
of administrative violation is subject to either of the principal sanctions:
caution and fine.
a/ Caution
shall be applied to violations in the cases specified in Article 13 of the
Ordinance on Handling of Administrative Violations and relevant articles and
clauses of this Decree which permit application of the sanction of caution to
such violations;
b/ Fine shall
be applied according to the fine bracket prescribed for each administrative
violation specified in relevant articles and clauses of this Decree. The
maximum fine level is VND 500,000.000.
2. Depending
on the nature and severity of violations, violators may also be subject to one
or more of the following additional sanctions:
a/
Confiscation of material evidence and means used in the commission of
administrative violations, including goods bearing counterfeit marks or
geographical indications; raw materials, materials and means used mainly for
producing or trading in those goods; stamps, labels, packages and other
articles bearing infringing elements; means of business, including also means for
service provision and advertisement media containing infringing elements;
protection titles, certificates or other documents which are modified, erased
or forged;
b/
Deprivation for a definite or indefinite period of time of the right to use
industrial property representation practice certificates; assessor cards; or
certificates of eligibility for assessment practice;
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3. In
addition to the principal and additional sanctions, violators may also be
forced to apply one or more of the following remedies:
a/ Forcible
removal of infringing elements on their goods or means of business; forcible
removal of information or indications on infringing goods or services on their
means of business, including also advertisement, media and computer networks,
or alteration or revocation of domain names or enterprise names containing
infringing elements;
b/ Forcible
distribution or use for noncommercial purposes of goods bearing counterfeit
marks or geographical indications or goods infringing upon industrial property
rights; raw materials, materials and means used mainly for producing or trading
in these goods, provided such act docs not affect the exercise of the
industrial property rights by their holders:
c/ Forcible
bringing out of the Vietnamese territory of transit goods infringing upon
industrial property rights or forcible re-export of goods bearing counterfeit
marks or geographical indications, or imported means, raw materials and
materials used mainly for producing or trading in these goods after infringing
elements on these goods arc removed;
d/ Forcible
destruction of infringing elements, goods, evidence and means involved in
violations on which infringing elements cannot be removed or infringing goods
which may cause harms to the health of humans, domestic animals, plants and the
environment; stamps, labels, packages and other articles bearing infringing
elements;
e/ Forcible
modification or addition of indications on industrial property;
f/ Forcible
public correction of errors, for acts of giving wrong indications on industrial
property rights:
g/ Forcible
confiscation of dispersed material evidence or means of violation;
h/ Remittance
into the state budget of illicit earnings from the commission of administrative
violations.
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a/ First
violations on a small scale:
b/ Violations
committed by persons who do not know or have no condition to know about the
status of protection of relevant industrial property rights.
5. The
statute of limitations for sanctioning administrative violations in industrial
property complies with Article 10 of the Ordinance on Handling of
Administrative Violations.
Article 4. Valuation of infringing goods or services
1. The
valuation of goods being evidence or means of violation for use as a basis for
determining the fine bracket and sanctioning competence shall be conducted by
competent persons based on the grounds and principles specified in Article 34
of the Government's Decree No. 128/2008/ND-CP of December 16, 2008, detailing a
number of articles of the Ordinance on Handling of Administrative Violations.
2. In case
the grounds mentioned in Clause 1 of this Article cannot be applied for
valuating infringing goods or services to serve as a basis for determining the
fine bracket or illicit earnings from the commission of violations, persons
with sanctioning competence shall valuate infringing goods or services based on
the quantity of goods produced, sold or transported or amount of services provided
which is indicated in payment invoices, contracts, orders, records of goods
handover and receipt, ex-warehousing bills, warehousing bills, consignment
bills, delivery bills, goods import declarations, written declarations to
competent agencies and prices of infringing goods or services indicated in
relevant documents. If no price is indicated in relevant documents, other
documents indicating the prices of these goods or services, including also
price advices, documents on product introduction or advertisement of infringing
goods or services, may be based on.
3. The value
of detected infringing goods or services and documents and grounds used for
determining such value shall be clearly recorded in minutes of administrative
violations to be included in case files.
4. When
impossible to valuate infringing goods or services under Clauses 1 and 2 of
this Article, fines shall be imposed under Clause 13, Article 10; Clause 12,
Article 11; Clause 11. Article 12; and Clause 8, Article 14 of this Decree.
Chapter II
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Section I. VIOLATIONS OF REGULATIONS ON MANAGEMENT OF
INDUSTRIAL PROPERTY ACTIVITIES
Article 5. Violations of regulations on procedures for
establishment, exercise and protection of industrial property rights
1. A fine of
between VND 5,000,000 and VND 10,000,000 shall be imposed on individuals or
organizations that commit either of the following violations:
a/ Modifying
or erasing protection titles or documents proving industrial property rights;
b/ Taking advantage
of procedures for establishment, exercise and protection of industrial property
rights to commit acts infringing upon the interests of the State, public
interests or lawful rights and interests of other organizations or individuals.
2. A fine of between
VND 10,000,000 and VND 15,000,000 shall be imposed on individuals or
organizations that commit acts of providing false information and evidence in
the process of carrying out any of the following procedures:
a/ Carrying
out procedures for establishment, recognition, certification, amendment,
maintenance, extension, request for termination or cancellation of the validity
of industrial property rights protection titles;
b/ Requesting
competent state agencies to issue decisions on compulsory licensing of
inventions;
c/ Lodging
complaints or denunciations about the establishment, exercise and protection of
industrial property rights;
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3. A fine of
between VND 15,000,000 and VND 20,000,000 shall be imposed on individuals or
organizations that commit acts of forging papers in the cases specified in
Clause 2 of this Article.
4. Additional
sanction: Confiscation of modified, erased or forged papers, documents,
protection titles or documents proving industrial property rights, for
violations specified at Point a. Clause 1, and Clauses 2 and 3 of this Article.
Article 6. Violations of regulations on indications on
protection of industrial property rights
1. A caution
or a fine of between VND 3.000,000 and 5.000.000 shall be imposed on
organizations or individuals that commit any of the following violations:
a/ Providing
wrongful indications on objects or elements subject to industrial property
rights protection, industrial property rights holders, authors of inventions,
industrial designs or layout designs;
b/ Providing
wrongful indications on the legal status and scope of protection of industrial
property rights;
c/ Providing
wrongful indications or no indication on goods produced under licensing
contracts (licensing indications).
2. Remedies:
a/ Forcible
removal of infringing elements on goods or means of business, for violations
specified in Clause 1 of this Article;
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c/ Forcible
modification or addition of indications, for violations specified at Point c.
Clause 1 of this Article.
Article 7. Violations of regulations on industrial property
representation
1. A caution
or a fine of between VND 2,000,000 and 5,000,000 shall be imposed on industrial
property representatives that commit either of the following violations:
a/ Failing to
notify in writing a state agency competent to establish and protect industrial
property rights of a change in their names, addresses or legal status or a
change related to the parties authorizing and authorized to conduct industrial
property representation;
b/ Failing to
notify or truthfully notify industrial property representation charges and fees
and their rates at the request of a competent agency.
2. A fine of
between VND 5,000,000 and VND 10.000,000 shall be imposed on industrial
property representatives that commit any of the following violations:
a/
Concurrently representing parties to a dispute over industrial property rights;
b/
Arbitrarily withdrawing applications for protection titles, disclaiming the
protection, withdrawing complaints or taking other acts in the establishment of
industrial property rights without permission of the representation authorizer;
c/ Failing to
notify contents of requests of a competent state agency competent to establish
industrial property rights, settle industrial property disputes or handle
industrial property violations to the representation authorizer:
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e/ Failing to
notify concerned organizations or individuals of contents of requests of
competent state agencies;
f/ Failing to
implement or respond to requests of competent state agencies for establishment
of industrial property rights or settlement of industrial property disputes or
handling of industrial property violations without any plausible reason;
g/ Modifying
or falsifying contents of industrial property representation practice
certificates;
h/
Deliberately advising or notifying wrongful information on provisions of the
industrial property law or information on industrial property activities;
i/
Deliberately obstructing the normal progress of the establishment, exercise and
protection of industrial property rights, causing damage to parties with
related rights and interests.
3. A fine of
between VND 10,000,000 and 15,000,000 shall be imposed on organizations or
individuals that commit either of the following violations:
a/ Providing
industrial property representation services without satisfying the practice
conditions specified by law;
b/ Forging
papers and documents or providing untruthful information to competent state
agencies in the process of registration and inspection of industrial property
representation operations, application for industrial property representation
practice certificates or request for recognition of industrial property
representation service providers.
4. A fine of
VND 15,000.000 and 20.000,000 shall be imposed on industrial property
representatives that commit either of the following violations:
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b/ Committing
serious errors or violations in the course of practicing representation,
causing damage to the interests of the State or die society.
5. Additional
sanctions:
a/
Termination of the provision of infringing services, for violations specified
at Point a, Clause 3 of this Article;
b/
Deprivation of the right to use industrial property representation practice
certificates for between 3 and 6 months, for violations specified in Clause 2
of this Article;
c/
Deprivation for an indefinite period of time of the right to use industrial
property representation practice certificates, for violations specified in
Clause 4 of this Article.
Article 8. Violations of regulations on industrial property
assessment
1. A caution
or a fine of between VND 2,000,000 and VND 5,000,000 shall be imposed on
individuals or organizations functioning to conduct industrial property
assessment that commit any of the following violations:
a/ Violating
regulations on assessment order, procedures and time limit;
b/ Failing to
be present when summoned by assessment-requesting agencies without any
plausible reason, or failing to explain assessment conclusions when requested
by assessment-requesting agencies;
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2. A fine of
between VXD 5.000,000 and 10,000,000 shall be imposed on organizations or individuals
that commit any of the following violations;
a/ Conducting
industrial property assessment without satisfying the practice conditions
specified by law;
b/ Disclosing
secret information acquired while conducting assessment without permission of
concerned parties;
c/ Failing to
compile assessment dossiers or failing to preserve exhibits and documents
related to cases subject to assessment;
d/ Using
industrial property assessor cards of other persons or letting other persons
use their own industrial property assessor cards to practice assessment.
3. A fine of
between VND 10,000,000 and 20,000,000 shall be imposed on organizations or
individuals that commit any of the following violations:
a/ Taking
advantage of the assessor status and assessment activities for self-seeking
purposes;
b/
Deliberately making untruthful assessment conclusions:
c/ Modifying,
erasing or otherwise falsifying assessment documents without permission;
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e/
Deliberately conducting assessment in cases in which assessment must be refused
as prescribed by law.
4. Additional
sanctions and remedies:
a/
Termination of the provision of infringing services, for violations specified
at Point a. Clause 2 of this Article;
b/
Deprivation of the right to use assessor cards or certificates of eligibility
for industrial property assessment for between 3 and 6 months, for violations
specified at Points a and c. Clause 1 of this Article;
c/
Confiscation of modified, falsified or forged documents, for violations
specified at Point c, Clause 1 and Point d. Clause 3 of this Article:
d/ Remittance
into the state budget of illicit earnings, for violations specified at Point a,
Clause 3 of this Article.
Article 9. Violations of regulations on industrial property
inspection and examination
1. A caution
or a fine of between VND 1,000,000 and VND 3,000,000 shall be imposed on
organizations or individuals that commit either of the following violations:
a/ Refusing
to receive inspection or examination decisions or administrative sanctioning
decisions without any plausible reason;
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2. A fine of
between VND 5,000,000 and 10,000.000 shall be imposed on organizations or
individuals that commit either of the following violations:
a/ Failing to
abide by requests, conclusions or decisions of industrial property inspection
or examination teams without any plausible reason;
b/
Obstructing, causing difficulties to or shirking industrial property inspection
or examination conducted by competent persons.
3. A fine of
between VND 1 0.000,000 and VND 15,000,000 shall be imposed on organizations or
individuals that commit either of the following violations:
a/ Reviling,
offending or humiliating persons competent to conduct industrial property
inspection or examination;
b/
Deliberately delaying, shirking or refusing the execution of administrative
decisions of persons competent to inspect, examine and handle administrative
violations in industrial property.
4. A fine of
between VND 15,000,000 and VND 20,000,000 shall be imposed on organizations or
individuals that commit either of the following violations:
a/
Arbitrarily removing or breaking seals or altering scenes of incidents,
quantity or category of goods which are material evidence of industrial
property violations subject to inspection, examination, sealing or seizure;
b/ Dispersing
or destroying material evidence or means subject to inspection or examination.
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Section 2. INFRINGEMENT OF RIGHTS AND UNFAIR COMPETITION IN
INDUSTRIAL PROPERTY
Article 10. Infringement of rights to inventions, utility
solutions and layout designs
1. A caution
or a fine of between VND 2,000,000 and 4,000.000 shall be imposed on
organizations or individuals that commit any of the following violations for
business purposes in case infringing goods are valued at up to VND 5,000.000:
a/ Selling,
offering for sale; transporting; transiting; storing; displaying for sale
products infringing upon rights to inventions, utility solutions or layout
designs, or products produced from a process infringing upon rights to
inventions or utility solutions;
b/ Utilizing
products infringing upon rights to inventions or utility solutions or products
produced from a process infringing upon rights to inventions or utility
solutions;
c/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Points a and b of this Clause.
2. A fine of
between VND 4,000.000 and 8,000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 5.000,000 and 10,000.000.
3. A fine of
between VND 8,000,000 and 15,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 10,000,000 and 20.000,000.
4. A fine of
between VND 15,000,000 and 30,000,000 shall be imposed on organizations or individuals
that commit any violation specified in Clause 1 of this Article in case
infringing goods are valued at between over VND 20,000.000 and 40,000,000.
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6. A fine of
between VND 50,000,000 and 80,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause J of this Article in
case infringing goods are valued at between over VND 70.000.000 and
100.000,000.
7. A fine of
between VND 80.000.000 and 160,000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause I of this Article in
case infringing goods are valued at between over VND 100.000.000 and
200.000,000.
8. A fine of
between VND 160,000.000 and 240,000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 200,000,000 and
300.000,000.
9. A fine of
between VND 240,000.000 and 320.000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 300,000.000 and
400,000.000.
10. A fine of
between VND 320,000,000 and 400,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 400.000,000 and
500,000,000.
11. A fine of
between VND 400.000.000 and 500.000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article
incase infringing goods are valued at over VND 500.000,000.
12. A fine
equal to 1 2 times the fine levels specified in Clauses 1 thru 11 of this
Article, which must not exceed VND 500,000,000, shall be imposed on
organizations or individuals that commit any of the following violations for
business purposes:
a/ Conducting
production, including stages of designing, building, manufacturing, processing,
assembling and packaging products or goods infringing upon rights to inventions,
utility solutions or layout designs;
b/ Applying
processes infringing upon rights to inventions, utility solutions or layout
designs;
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d/ Placing
orders to, assigning or hiring other parties to commit the violation specified
at Point a, b or c of this Clause.
13. A fine of
between VND 10.000,000 and 90.000,000 shall be imposed on organizations and
individuals that commit acts of infringing upon rights to inventions, utility
solutions or layout designs as specified in Clauses 1 and 12 of this Article in
case the value of infringing goods cannot be determined.
14. A fine of
between VND 10,000.000 and 20.000.000 shall be imposed on organizations and
individuals that commit acts of advertising products infringing upon rights to
inventions, utility solutions or layout designs or products produced from
processes infringing upon rights to inventions, utility solutions.
15.
Additional sanctions:
a/
Confiscation of material evidence or means used in the commission of
administrative violations, for violations specified in Clauses 1 thru 14 of
this Article;
b/ Suspension
of the production of or trading in infringing goods for up to 3 months, for
violations specified in Clauses 1 thru 14 of this Article.
16. Remedies:
a/ Forcible
removal or forcible destruction of infringing elements, forcible destruction of
goods, material evidence and means used in the commission of violations from
which infringing elements cannot be removed, for violations specified in
Clauses 1 thru 14 of this Article:
b/ Forcible
distribution or use for noncommercial purposes of infringing goods, for violations
specified in Clauses 1 thru 13 of this Article;
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d/ Remittance
into the state budget of illicit earnings from the commission of infringing
acts, for violations specified in Clauses 1 thru 14 of this Article.
Article 11. Infringement of rights to marks, geographical
indications, trade names or industrial designs
1. A caution
or a fine of between VND 3.000,000 and 5,000,000 shall be imposed on
organizations or individuals that commit any of the following violations for
business purposes in case infringing goods or services are valued at up to VND
5.000,000:
a/ Selling,
offering for sale; transporting, transiting; storing: displaying for sale
products or services infringing upon rights to marks, geographical indications,
trade names or industrial designs;
b/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Point a of this Clause.
2. A fine of
between VND 5,000,000 and 10,000.000 shall be imposed on organizations or
individuals that commit any violation sped tied in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 5.000.000 and
10,000,000.
3. A fine of
between VND 10,000.000 and 20.000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services arc valued at between over VND 10,000.000 and
20.000,000.
4. A fine of
between VND 20.000.000 and 40,000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 20,000,000 and
40,000,000.
5. A fine of
between VND 40,000,000 and 70,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 40,000,000 and
70,000.000.
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7. A tine of
between VND 100,000,000 and 200,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 100,000,000
and 200,000,000.
8. A fine of
between VND 200,000,000 and 300,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 200.000,000
and 300,000,000.
9. A fine of
between VND 300,000,000 and 400.000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 300,000,000
and 400,000,000,
A fine of
between VND 400,000,000 and 500.000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at over VND 400,000,000.
11. A fine
equal to 1.2 times the fine levels specified in Clauses 1 thru 10 of this
Article, which must not exceed VND 500.000,000, shall be imposed on
organizations or individuals that commit any of the following violations:
a/ Conducting
production, including stages of designing, manufacture, processing, assembling
and packaging goods bearing signs infringing upon rights to marks, trade names,
geographical indications or industrial designs;
b/ Conducting
affixture, including printing, sticking, attaching, molding or embossing or
otherwise affixing stamps, labels or other articles bearing signs infringing
upon rights to marks, geographical indications or trade names on goods:
c/ Importing
goods bearing signs infringing upon rights to marks, geographical indications,
trade names or industrial designs:
d/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Points a, b and c of this Clause.
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13. A fine of
between VND 10.000,000 and 20.000.000 shall be imposed for acts of using signs
infringing upon rights to marks, geographical indications, trade names or industrial
designs in advertisements or showing these signs on business transaction
papers, signboards, goods packages, or means of business or service or
advertisement media.
14.
Additional sanctions:
a/
Confiscation of material evidence or means used in the commission of
administrative violations, for violations specified in Clauses 1 thru 13 of
this Article;
b/ Suspension
of production of or trading in infringing goods or services including also
e-commerce activities, for up to 3 months, for violations specified in Clauses
1 thru 13 of this Article.
15. Remedies:
a/ Forcible
removal or forcible destruction of infringing elements, forcible destruction of
infringing goods from which infringing elements cannot be removed, for
violations specified in Clauses 1 thru 13 of this Article;
b/ Forcible
distribution or use for noncommercial purposes of infringing goods, for
violations specified in Clauses I thru 12 of this Article;
c/ Forcible
bringing out of the Vietnamese territory of infringing transit goods or forcible
re-export of infringing imported goods after infringing elements on these goods
are removed, for violations specified in Clauses 1 thru 12 of this Article;
d/ Forcible
removal of information on infringing goods or services on advertisement media
or websites or change or withdrawal of enterprise or domain names containing
infringing elements, for violations specified in Clause 13 of this Article;
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Article 12. Production, import, trading, transportation or
storage for sale of goods bearing counterfeit marks or geographical indications
1. A caution
or a fine of between VND 4.000,000 and 8,000,000 shall be imposed on
organizations or individuals that commit any of the following violations in
case infringing goods are valued at up to VND 5,000,000:
a/ Selling,
offering for sale; transporting, transiting; storing; displaying for sale goods
bearing counterfeit marks or geographical indications;
b/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Point a of this Clause.
2. A fine of
between VND 8,000.000 and 15.000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 5,000,000 and 10,000,000.
3. A fine of
between VND 15.000,000 and 30,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 10,000,000 and 20,000.000.
4. A fine of
between VND 30.000,000 and 60,000.000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods arc valued at between over VND 20,000,000 and 40,000,000.
5. A fine of
between VND 60.000,000 and 100,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 40,000,000 and 70,000,000.
6. A fine of
between VND 100.000,000 and 150.000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 70,000,000 and
100,000,000.
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8. A fine of
between VND 300,000,000 and 450,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at between over VND 200,000,000 and
300,000,000.
9. A fine of
between VND 450,000,000 and 500,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods are valued at over VND 300,000,000.
10. A fine
equal to 1.5 limes the fine levels specified in Clauses 1 thru 9 of this
Article, which must not exceed VND 500,000,000, shall be imposed on
organizations or individuals that commit any of the following violations:
a/ Conducting
production, including stages of manufacturing, processing, assembling and
packaging goods bearing counterfeit marks or geographical indications;
b/ Conducting
affixture, including printing, sticking, attaching, molding or embossing or
otherwise affixing stamps, labels or other articles bearing counterfeit marks
or geographical indications on goods;
c/ importing
goods bearing counterfeit marks or geographical indications;
d/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Points a, b and c of this Clause.
11. A fine of
between VND 10.000.000 and 90.000.000 shall be imposed lor violations specified
in Clauses 1 and 10 (if this Article in case the value of infringing goods or
services cannot be determined.
12. A fine of
between VND 20,000.000 and 40.000.000 shall be imposed for acts of using signs
imitating currently protected marks or geographical indications of other
parties in advertisements or showing these signs on business transaction
papers, signboards, goods packages, or means of business or service or
advertisement media.
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a/
Confiscation of material evidence or means used in the commission of
administrative violations, for violations specified in Clauses 1 thru 12 of
this Article;
b/ Suspension
of trading in infringing goods or services, including also c-commerce
activities, for between 3 and 6 months, for violations specified in Clauses 1
thru 12 of this Article.
14. Remedies:
a/ Forcible
removal or forcible destruction of infringing elements, forcible destruction of
infringing goods from which infringing elements cannot be removed, for
violations specified in Clauses 1 thru 12 of this Article;
b/ Forcible
distribution or use for noncommercial purposes of infringing goods, for
violations specified in Clauses 1 thru 11 of this Article;
c/ Forcible
bringing out of the Vietnamese territory of infringing transit goods or
forcible re-export of imported goods bearing counterfeit marks or geographical
indications, or imported raw materials, materials and means used mainly for
producing goods bearing counterfeit marks or geographical indications after
infringing elements on these goods are removed, for violations specified in
Clauses 1 thru 11 of this Article;
d/ Forcible
removal of information on infringing goods or services on advertisement media
or websites or change or withdrawal of enterprise or domain names containing
infringing elements, for violations specified in Clause 12 of this Article;
e/ Remittance
into the state budget of illicit earnings from the commission of infringing
acts. for violations specified in Clauses 1 thru 12 of this Article.
Article 13. Production, import, trading, transportation or
storage for sale of stamps, labels or articles bearing counterfeit marks or
geographical indications
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a/ Selling; transporting,
transiting; supplying: storing; displaying for sale stamps, labels, packages or
articles bearing counterfeit marks or geographical indications;
b/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Point a of this Clause.
2. A fine of
between VND 20.000,000 and 70.000,000 shall be imposed on organizations or
individuals that commit any of the following violations:
a/ Conducting
production, including stages of designing and printing; importing stamps,
labels, packages or articles bearing counterfeit marks or geographical
indications;
b/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Point a of this Clause.
3. Additional
sanctions:
a/
Confiscation of material evidence or means used in the commission of
violations, for violations specified in Clauses 1 and 2 of this Article;
b/ Suspension
of the trading of infringing goods or provision of infringing services for up
to 6 months, for violations specified in Clauses 1 and 2 of this Article.
4. Remedies:
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b/ Remittance
into the state budget of illicit earnings from the commission of infringing
acts, for violations specified in Clauses 1 and 2 of this Article.
Article 14. Unfair competition in the domain of industrial
property
1. A fine of
between VND 2,000.000 and 4,000,000 shall be imposed on organizations or
individuals that commit any of the following violations in case infringing
goods or services are valued at up to VND 5.000.000:
a/ Selling;
transporting, transiting; storing for sale goods or services affixed with trade
indications, including marks, trade names, business symbols or slogans,
geographical indications, package designs of goods or labels, thereby
misleading as to business entities or activities, trade origin of goods or
services or origin, method of production, utilities, quality, quantity or other
features of goods or services or conditions of provision of goods or services;
b/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Point a of this Clause.
2. A fine of
between VND 4,000,000 and 8,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services arc valued at between over VND 5.000.000 and
10,000,000.
3. A fine of
between VND 8.000,000 and 15,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 10,000,000 and
20,000,000.
4. A fine of
between VND 15,000.000 and 30,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 20,000,000 and
40,000,000.
5. A fine of
between VND 30,000,000 and 50,000,000 shall be imposed on organizations or
individuals that commit any violation specified in Clause 1 of this Article in
case infringing goods or services are valued at between over VND 40,000,(X)0
and 70,000,000.
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7. A fine equal
to 1.2 times the fine levels specified in Clauses 1 thru 6 of this Article,
which must not exceed VND 70,000,000, shall be imposed on organizations or
individuals that commit any of the following violations:
a/ Affixing
trade indications, including marks, trade names, business symbols or slogans,
geographical indications, package designs of goods or labels, thereby
misleading as to business entities or activities, trade origin of goods or
services or origin, method of production, utilities. quality, quantity or other
features of goods or services or conditions of provision of goods or services;
b/ Producing
or importing goods bearing misleading trade indications specified at Point a of
this Clause;
c/ Placing
orders to, assigning or hiring other parties to commit violations specified at
Points a and b of this Clause.
8. A fine of
between VND 10.000,000 and 50,000,000 shall be impc sed for acts of using
misleading trade indications specified in Clauses 1 and 7 of this Article in
case the value of infringing goods or services cannot be determined.
9. A fine of
between VND 10.000,000 and 30.000.000 shall be imposed on organizations or
individuals that commit either of the following violations:
a/ Infringing
upon rights to business secrets;
b/
Advertising or using on transaction papers or means of business, including also
means of service, signboards and goods packages, trade indications which
mislead as to business entities or activities or trade origin of goods or
services or origin, method of production, utilities, quality, quantity or other
features of goods or services or conditions on provision of goods or services.
10. A fine of
between VND 5,000,000 and 20,000,000 shall be imposed on organizations or
individuals that commit either of the following violations:
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b/ Using
marks protected in a country being contracting party to a treaty which bans
representatives or agents of mark owners from using these marks and to which
Vietnam is a contracting party, provided that users are representatives or
agents of mark owners and this use is neither authorized by mark owners nor
justifiable.
11.
Additional sanctions:
a/
Confiscation of material evidence or means used in the commission of
administrative violations, for violations specified in Clauses 1 thru 10 of
this Article;
b/ Suspension
of trading in infringing goods or services, including also e-commerce
activities, for up to 6 months, for violations specified in Clauses 1 thru 10
of this Article.
12. Remedies:
a/ Forcible
removal or forcible destruction of infringing elements, forcible destruction of
infringing goods from which infringing elements cannot be removed, for
violations specified in Clauses 1 thru 10 of this Article;
b/ Forcible
distribution or use for noncommercial purposes of infringing goods, for
violations specified in Clauses 1 thru 10 of this Article;
c/ Forcible
removal of information on infringing goods or services on advertisement media
or websites; forcible change or withdrawal of enterprise or domain names
containing infringing elements, for violations specified in Clauses 9 and 10 of
this Article;
d/ Remittance
into the state budget of illicit earnings from the commission of infringing
acts. for violations specified in Clauses 1 thru 10 of this Article.
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SANCTIONING COMPETENCE
Article 15. Competence to handle violations
1. Scientific
and technological inspectorates are competent to handle violations specified in
Chapter II of this Decree, except those committed in the transit or import of
goods.
2.
Information and communications inspectorates are competent to handle violations
specified in Article 9 and infringing acts specified at Point a, Clause 10,
Article 14 of this Decree.
3. Market
management offices are competent to handle violations specified in Articles 6
and 9 and infringing acts specified in Articles 11, 12 and 13 of this Decree in
the trading or transportation of goods in the domestic market.
4. Customs
offices are competent to handle violations specified in Articles 6 and 9 and
infringing acts specified in Section 2, Chapter II of this Decree in the
transit or import of goods.
5. Police
offices are competent to handle violations specified in Article 9 and
infringing acts specified in Article 9 and infringing acts specified in Article
12 and 13 of this Decree.
6. The
Competition Management Department is competent to handle violations specified
in Article 14 of this Decree.
7.
Provincial- and district-level People's Committees are competent to handle
violations in industrial property which are committed in their respective
localities on the principle of determination of competence provided in Article
42 of the Ordinance on Handling of Administrative Violations.
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1. Inspectors
of the Ministry of Science and Technology's Inspectorate or provincial-level
Departments of Science and Technology's inspectorates who are on duty may:
a/ Impose
cautions;
b/ Confiscate
material evidence or means used in the, commission of administrative violations
valued at up to VND 2,000,000;
c/ Apply
remedies specified at Points a, d, e. f and g, Clause 3. Article 3 of this
Decree.
2. Chief
inspectors of provincial-level Departments of Science and Technology may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 30,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
d/ Deprive of
the right to use industrial properly representation practice certificates for a
definite period of lime;
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f/ Apply
remedies specified at Points a. b, d, e, f, g and h. Clause 3, Article 3 of
this Decree.
3. The Chief
Inspector of the Ministry of Science and Technology may:
a/ Impose
cautions:
b/ Impose
fines of up to VND 500,000,000;
c/ Deprive of
the right to use industrial property representation practice certificates,
assessor cards, certificates of eligibility for industrial property assessment
for a definite or an indefinite period of time;
d/ Suspend
for up to 6 months of the trading of infringing goods or provision of
infringing services;
e/ Confiscate
material evidence or means used in the commission of administrative violations;
f/ Apply
remedies specified at Points a. b, d, e. f. g and h. Clause 3, Article 3 of
this Decree.
Article 17. Sanctioning competence of information and
communications inspectorates
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a/ Imposed
cautions;
b/ Confiscate
material evidence or means used in the commission of administrative violations
valued at up to VND 2,000,000;
c/ Apply
remedies specified at Point a, Clause 3, Article 3 of this Article.
2. Chief
inspectors of provincial-level Departments of Information and Communications
may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 30,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
d/ Deprive of
the right to use licenses falling within their competence as prescribed by law;
e/ Suspend
for up to 3 months the trading of infringing goods or provision of infringing
services;
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3. The Chief
Inspector of the Ministry of Information and Communications may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 70,000,000;
c/ Suspend
for up to 6 months the trading of infringing goods or provision infringing
services;
d/ Deprive of
the right to use licenses falling within his/her competence as prescribed by
law;
e/ Confiscate
material evidence or means used in the commission of administrative violations;
f/ Apply
remedies specified at Point a. Clause 3, Article 3 of this Decree.
Article 18. Sanctioning competence of market management
officers
1. Heads of
market management teams may:
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b/ Impose
fines of up to VND 5,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations
valued at up to VND 30,000,000;
d/ Apply
remedies specified at Points a, d, e, f, g and h, Clause 3, Article 3 of this
Decree.
2. Directors
of district-level market management departments may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 20,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
d/ Deprive of
the right to use licenses falling within their competence as prescribed by law;
e/ Apply
consequence remedies specified at Points a, b, d, e, f, g and h, Clause 3,
Article 3 of this Decree.
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a/ Impose
cautions;
b/ Impose
fines of up to VND 70,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
d/ Deprive of
the right to use licenses falling within their competence as prescribed by law;
e/ Apply
remedies specified at Points a, b. d. e, f, g and h. Clause 3, Article 3 of
this Decree.
Article 19. Sanctioning competence of customs officers
1. Heads of
professional operation teams of district-level Customs Departments or
Post-Customs Clearance Inspection Departments may: a/ Impose cautions; b/
Impose fines of up to VND 5,000.000.
2. Directors
of district-level Customs Departments or Post-Customs Clearance Inspection
Departments, heads of control teams of provincial, inter-provincial or
municipal Customs Departments (below referred to as provincial-level Customs
Departments), heads of anti-smuggling control teams and captains of sea patrol
flotillas of the Anti-Smuggling Investigation Department of the General
Department of Customs may:
a/ Impose
cautions;
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c/ Deprive of
the right to use licenses falling within their competence as prescribed by law;
d/ Confiscate
material evidence or means used in the commission of administrative violations.
3. The
directors of the Anti-Smuggling Investigation Department and the Post-Customs
Clearance Inspection Department of the General Department of Customs and
directors of provincial-level Customs Departments may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 70.000.000;
c/ Confiscate
material evidence or means used in the commission of administrative violations:
d/ Deprive of
the right to use licenses falling within their competence as prescribed by law;
e/ Apply
remedies specified in Clause 3. Article 3 of this Decree.
Article 20. Sanctioning competence of people's public
security officers
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a/ Impose
cautions;
b/ Impose
fines of up to VND 10,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
d/ Deprive of
the right to use licenses falling within their competence as prescribed by law;
e/ Apply
remedies specified at Points a, d, e, f and g, Clause 3, Article 3 of this
Decree.
2. Directors
of provincial-level Police Departments may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 30,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
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e/ Apply
remedies specified at Points a, b, d, e, f, g and h. Clause 3, Article 3 of
this Decree.
3. The
director of the Police Department for Investigation of Crimes related to
Economic Management Order and Positions may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 500,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
d/ Deprive of
the right to use licenses falling within their competence as prescribed by law;
e/ Apply
remedies specified at Points a, b, d, e, f, g and h, Clause 3. Article 3 of
this Decree.
Article 21. Sanctioning competence of the director of the
Competition Management Department
1. Impose
cautions;
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3. Confiscate
material evidence or means used in the commission of administrative violations;
4. Deprive of
the right to use licenses falling within their competence as prescribed by law;
5. Apply
remedies specified at Points a. b, d. e, f, g and h, Clause 3, Article 3 of
this Decree.
Article 22. Sanctioning competence of chairpersons of
district- and provincial-level People's Committees
1.
Chairpersons of district-level People's Committees may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 30,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations
in industrial property;
d/ Deprive of
the right to use licenses and practice certificates under law;
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2.
Chairpersons of provincial-level People's Committees may:
a/ Impose
cautions;
b/ Impose
fines of up to VND 500,000,000;
c/ Confiscate
material evidence or means used in the commission of administrative violations;
d/ Deprive of
the right to use licenses and practice certificates under law;
e/ Apply
remedies specified in Clause 3, Article 3 of this Decree.
Article 23. Competence to apply deterrent and sanctioning
assurance measures
1.
District-level police chiefs, heads of police sections for investigation of
crimes related to economic management order and positions, heads of border-gate
police stations, directors of district-level customs sub-departments, heads of
control teams of provincial-level Customs Departments, heads of anti-smuggling
control teams and captains of sea patrol flotillas of the Anti-Smuggling
Investigation Department of the General Department of Customs, heads of market
management teams, chief inspectors of provincial-level Departments of Science
and Technology, and the Chief Inspector of the Ministry of Science and Technology
may temporarily seize material evidence and means used in the commission of
violations in industrial properly under the conditions specified in Clause 1.
Article 215 of the Law on Intellectual Property and according to the procedures
specified in Article 46 of the Ordinance on Handling of Administrative
Violations.
2.
District-level police chiefs, heads of police sections for investigation of
crimes related to economic management order and positions, heads of border-gate
police stations, directors of district-level customs sub-departments, heads of
control teams of provincial-level Customs Departments, heads of anti-smuggling
control teams and captains of sea patrol flotillas of the Anti-Smuggling
Investigation Department of the General Department of Customs, heads of market
management teams, people's public security soldiers, market controllers, and
specialized scientific and technological inspectors who are on duty may search
vehicles or articles when having grounds to believe that material evidence in
administrative violations in the domain of industrial property is hidden in
these vehicles or articles, under the conditions specified in Clause 1, Article
215 of the Law on Intellectual Property and according to the procedures
specified in Article 48 of the Ordinance on Handling of Administrative
Violations.
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Chapter IV
PROCEDURES FOR HANDLING
VIOLATIONS
Article 24. Right to request handling of violations and
competence to take the initiative in detecting and handling violations
1. Industrial
property rights holders that may request handling of violations in the domain
of industrial property include:
a/ Industrial
property rights holders that suffer damage caused by violations, including also
organizations authorized to manage geographical indications currently protected
in Vietnam;
b/ Persons
licensed to use industrial property objects who suffer damage caused by
violations, provided their right to request handling of violations are not
restricted by industrial property rights holders.
When
exercising the right to request handling of acts infringing upon industrial
property rights provided at Point a, Clause 1, Article 211 of the Law on
Intellectual Property and acts of unfair competition specified in Article 130
of the Law on Intellectual Property, organizations and individuals defined ill
this Clause shall clearly indicate the nature and severity of violations in
their requests and supply documents and evidence specified in Clause 2, Article
26 of this Decree.
2.
Organizations and individuals that detect acts infringing upon industrial
property rights, thus causing damage to consumers or the society, violations
related to goods, stamps, labels or articles bearing counterfeit marks or
geographical indications; organizations and individuals that suffer damage or
are likely to suffer damage caused by acts of unfair competition in the domain
of industrial property may notify and request competent agencies to carry out
procedures for verifying and sanctioning violations.
Upon
receiving notices of organizations and individuals defined in this Clause,
agencies competent to handle violations shall inspect and coordinate with
industrial property rights holders in verifying and handling violations under
Clause 3 of this Article.
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a/ Goods,
stamps, labels, packages and other articles bearing counterfeit marks or
geographical indications;
b/ Infringing
goods or services related to food. foodstuffs, pharmaceuticals, cosmetics,
livestock feed, fertilizers, veterinary drugs, plant protection drugs,
construction materials, means of transport, chemicals for medical, agricultural
or environmental use, and other items identified by competent persons while
conducting periodical or irregular inspection or examination.
Article 25. Authorized request for handling of violations
1. Industrial
property rights holders defined in Clause 1, Article 24 of this Decree that do
not directly file their requests for handling of violations may authorize heads
of their representative offices, branches or agents or industrial property
representation service providers in Vietnam to carry out all procedures for
requesting handling of violations under this Decree.
2.
Authorization must be made in writing in the form of power of attorney. Such a
power of attorney enclosed with the request for handling of violations must be
original and bear the signature of the lawful representative and seal for
certification of the authorizer in case he/she/ it has a lawfully registered
seal or certification by a notary public, consular office or local
administration or another form considered lawful under the law in the place in
which this document is made. A power of attorney made in a foreign language
must be enclosed with its Vietnamese translation certified by a notary public,
consular office or local administration or bearing guarantee and certification
by an industrial property representation service provider being the authorized.
In case a copy of a power of attorney refers to the original power of attorney
already included in a dossier previously filed with the same violation-handling
agency, such copy is also considered valid, provided that the original is still
valid and consistent with contents of authorization.
3. A power of
attorney which is valid in procedures for establishing rights under Article 107
of the Law on Intellectual Property and clearly indicates contents of
authorization including enforcement and protection of industrial property
rights in Vietnam is also legally valid in procedures for requesting handling
of violations under this Decree.
4. Conditions
for authorization, rights and obligations and matters related to the job of
authorized representatives, validity of sub-authorization or surrogate
authorization comply with contents of powers of attorney and the Civil Code.
Article 26. Requests for handling of violations
1. A request
for handling of a violation must be made in writing, clearly indicating the
date of making, name(s) of request-receiving agency(ies), information on the
requesting organization or individual; lawful representative or authorized
organization or individual; industrial property object in question; goods or
service showing signs of infringement; name and address of infringing
organization or individual; proposed handling measure(s); signature of the
lawful representative of the requesting organization or individual or the
authorized organization or individual, and the seal for signature certification
(if any). If such a request has been previously filed with another agency, it
must clearly indicate the name of this agency and the filing date.
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Article 27. Receipt and examination of written requests for
handling of violations
1. When
receiving a written request for handling of a violation, a violation-receiving
agency shall:
a/ Determine
the competence to handle the violation; if the written request for handling of
a violation falls under the handling competence of another agency, guide the
requester to file this request with that agency;
b/ Examine
documents and evidence enclosed with the written request.
2.
Examination of a written request for handling of a violation shall be conducted
as follows:
a/ Within 10
working days after receiving the written request, the violation-handling agency
shall consider the validity of the written request and enclosed documents and
evidence;
b/ When
documents or evidence supplied by the requester are insufficient, the
violation-handling agency shall request the requester to supplement documents
and evidence or give explanations within 30 days after being requested;
c/ The agency
competent to accept the case for handling may request the alleged violator to
furnish information and evidence and give explanations; solicit expert opinions
of the state management agency in charge of industrial property or request
industrial property assessment to clarify circumstances of the case;
d/ Within 30
days after receiving the complete dossier which satisfies the requirements, the
competent person shall notify the requester of the projected time of handling,
procedures and measures and request cooperation and support of the industrial
property rights holder in the inspection, examination, verification and
handling of the violation.
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a/ In the
course of handling a case, the party requested to be handled may, at
his/her/its own will or the request of a competent person, provide information,
documents and evidence and give explanations, in case of disagreeing with the
requester, within 10 days after the date fixed in the notice of the competent
person currently handling the violation or the date of making a minutes of
administrative violation. If there is a plausible reason, the party requested
to be handled may request in writing the competent person currently handling
the case to prolong that time limit for not more than 30 days after the date
fixed in the notice or the date of making a minutes of administrative
violation.
b/ The party
requested to be handled may authorize another organization or individual under
Article 25 of this Decree to provide information, documents and evidence and
give explanations under Point a of this Clause;
c/ To prove
that his/her/its act docs not infringe upon the right to an invention or a
utility solution being a process, the party requested to be handled is obliged
to prove that the product believed to be produced from the process infringing
upon the right to that invention or utility solution has, in fact, not been
produced from the process protected as an invention or a utility solution and
satisfied the relevant conditions specified in Clause 4, Article 203 of the Law
on Intellectual Property;
d/ In case
the party requested to be handled fails to provide or provides insufficient
information, documents, evidence and explanations to prove his/her/its lawful
act, the competent person shall decide to handle the case based on inspection
and examination results and information, documents and evidence provided by the
requester, for issuing a handling decision.
Article 28. Provision of evidence and information to identify
violations
1. A
requester for handling of a violation may request industrial property
assessment or request the state management agency in charge of industrial
property to give its expert opinions for identifying the protection scope and
infringing elements, or take the initiative in providing documents and evidence
to prove the infringing act or to clarify circumstances of the case.
2. The agency
competent to handle the violation may request the requester to provide documents,
evidence and explanations or clarify circumstances of the case within a given
time limit; request the industrial property rights holder to provide
information, documents and samples to identify signs of violation, genuine
goods and counterfeit or infringing goods, source of supply or place of
consumption of lawful goods, grounds for identifying goods produced beyond the
scope of licensing of industrial property object or imports other than parallel
imports.
3. The agency
competent to handle the violation may conduct at its own will inspection,
verification, collection of evidence, determination of the scope of industrial
property rights protection and identification of the act of violation under the
law on intellectual property. When necessary, it may request a functional
agency to conduct verification, collect evidence of violation, request the
state management agency in charge of industrial property to give its expert
opinions or request industrial properly assessment to identify the scope of protection
and infringing elements.
4. The
industrial property assessment organization or assessor that makes a written
assessment conclusion shall take legal responsibility for the impartiality,
truthfulness and lawfulness of its/his/her assessment and conclusion stated in
the written assessment conclusion. The person competent to handle the violation
may base him/herself on the industrial property rights holder's written
confirmation of goods or service bearing a counterfeit mark or geographical
indication, written expert opinions of the state management agency in charge of
industrial property and written assessment conclusion to identify the violation
but shall take legal responsibility for his/her violation conclusion and
violation-handling decision.
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6. The agency
competent to handle the case may request the party requested to be handled for
his/her/its violation and parties with related rights and benefits in the case
to provide information, documents and evidence to prove their requests and
arguments or to disprove requests and arguments of other parties; request the
party currently keeping or controlling evidence and documents related to the
case of violation to furnish such evidence and documents as a basis for
handling the case.
7. The
industrial property rights holder or his/ her/its authorized representative may
request the agency competent to handle the violation to permit his/her/its
participation and assistance in the inspection, examination, verification,
collection of evidence, identification of genuine goods, counterfeit or
infringing goods and infringing elements on goods, articles, raw materials,
materials and means of business, and determination of measure(s) to handle the
infringing goods or service. The agency competent to handle the violation shall
decide to permit the participation as requested, unless it is necessary to
protect a trade secret at the justifiable request of the handled party.
Article 29. Handling of violations involving disputes
1. In case a
complaint, denunciation or dispute arises concerning the registration right,
ownership right, right to request handling of violation, conditions or scope of
protection of industrial property rights after a written request for handling
of a violation is accepted, the agency competent to accept the case for
handling shall take the following handling measures:
a/ Requesting
involved parties to carry out procedures for requesting settlement of the
complaint, denunciation or dispute by a competent agency under the law on
intellectual property;
b/ Requesting
the industrial property rights holder to give explanations or make commitment
or to request the state management agency in charge of industrial property to
clarify the legal status of industrial property rights subject to the
complaint, denunciation or dispute.
Within 15
days after receiving a written explanation or commitment of the industrial
property rights holder or a written reply of the state management agency in
charge of industrial property, the agency competent to accept the case for
handling shall notify the requester of whether it will carry out handling
procedures or refuses to handle the violation.
2. In case a
written request for handling of a violation has been accepted but parties
involved in the case reach an agreement and propose a handling measure in
compliance with the law on intellectual property which does not affect the
rights and interests of a third party, consumers and the society, the agency
competent to handle the violation shall recognize such handling measure and
terminate the handling of the case.
Article 30. Refusal to handle or termination of handling of
violations
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a/ The
written request for handling of the violation is filed when related industrial
property rights are disputed;
b/ The
requester fails to meet requirements of the violation-handling agency on
explanation about or addition of evidence proving the status of the industrial
properly rights holder and the violation under Point b, Clause 2, Article 27 of
this Decree:
c/ The
statute of limitations for sanctioning the administrative violation has expired
under Clause 1, Article 10 of the Ordinance on Handling of Administrative
Violations;
d/ Results of
verification by the violation-handling agency or a police office disprove the
violation as described in the written request for violation handling;
e/ There's a
conclusion, decision or notice of a competent agency on the lack of grounds for
carrying out procedures for handling the violation;
f/ The act is
neither regarded as a violation under the law on intellectual property nor
subject to any administrative sanction specified in this Decree.
2. A person
accepting a written request for handling of a violation shall cease procedures
for handling the violation in the following cases:
a/ There
arises a complaint, denunciation or dispute after the request is accepted and
pending results of handling by a competent agency defined in Clause 1, Article
29 of this Decree;
b/ The
requester requests in writing withdrawal of the written request for violation
handling;
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3. In case a
violation is related to the production of or trading in a goods or its package,
stamp, label or other articles bearing a counterfeit mark or geographical
indication, a person with sanctioning competence shall still carry out
procedures for administratively sanctioning this violation even after receiving
a notice of withdrawal of the written request for violation handling under
Point b, Clause 2 of this Article.
Article 31. Coordination in the handling of violations
1.
Requirements for coordination in the handling of violations
a/' For a
violation involving complicated circumstances or different organizations and
individuals, the agency competent to accept a written request for violation
handling may request a competent agency and the state management agency in
charge of industrial property in the concerned locality to coordinate with one
another in handling the violation. A request for coordination in the handling
of a violation must contain brief information on the case, propose issues which
require coordinated handling and indicate a time limit of 15 days for the
request-receiving agency to reply:
b/ The agency
receiving the request for coordination shall reply within the indicated time
limit, unless it refuses to coordinate. In case of refusal to coordinate, it
shall clearly state the reason.
2. Use of results
of examination and handling of written requests for violation handling from
other agencies:
a/ A
violation-handling agency may use results of identification of violations or
determination of the value of infringing goods conducted by another competent
agency (if any) to ensure uniformity of handling measures and sanctioning
levels applicable to the same or similar violations or related to the same
industrial property object of the same industrial property rights holder:
b/ When
competent agencies have different opinions, conclusions and decisions on the
identification of the violation, measures and extent of handling of the
violation, the person competent to handle the violation may set up an advisory
council composed of experts prestigious in relevant professional domains to
assist the competent person in making conclusions on the violation.
Article 32. Application of deterrent and administrative
sanctioning security measures
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a/ The
violation is likely to cause serious damage to consumers or the society:
violation exhibits are in danger of dispersal;
b/ The
violator show signs of shirking his/ her/its liability to the violation;
c/ The
capability of the violator to comply with the sanctioning decision must be
secured.
2. A
requester for handling of a violation may request a person with sanctioning
competence to take a deterrent and sanctioning security measure when a
circumstance specified in Clause 1 of this Article occurs.
3. Measures
to deter and secure administrative sanctioning of violations in the domain of
industrial property include: holding of a person in custody; temporary seizure
of a goods, material evidence or means used in the commission of a violation;
search of a person, means of transport, article or place in which a goods,
material evidence or means used in the commission of a violation is hidden.
4. Persons
competent to issue decisions to apply deterrent and sanctioning security
measures shall take legal responsibilities, including responsibility to pay
compensations for damage caused to organizations and individuals subject to
these measures in case these measures are applied in contravention of regulations.
Article 33. Administrative sanctioning procedures
1. When
detecting a violation, a person with sanctioning competence shall immediately
order termination of such violation, clearly explaining regulations on
sanctioning of administrative violations in the domain of industrial property
and relevant provisions of the law on industrial property to the violating
organization or individual, requesting the latter to strictly observe the
provisions of law.
2. When there
are sufficient grounds and clear evidence for imposing a caution, a person with
sanctioning competence is not required to make a minutes of violation but issue
a sanctioning decision right at the place of violation commission and the
caution must be issued in writing.
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4. A
sanctioning decision and its contents must comply with Article 56 of the
Ordinance on Handling of Administrative Violations. It must be sent to the sanctioned
organization or individual within 3 days after its issuance.
5. When a
sanctioning decision covers also additional sanctions which require completion
of procedures for establishment, modification, suspension, termination or
cancellation of the validity of a relevant protection title, industrial
property rights transfer registration certificate, industrial property
representation practice card, industrial property assessor card or certificate
of eligibility for assessment, it shall be sent by its issuer to the
Inspectorate of the Ministry of Science and Technology and the National Office
of Intellectual Property for coordination in monitoring and implementation.
6. When a
sanctioning decision covers also additional sanctions or consequence remedies
which require completion of procedures for deprivation of the right to use,
revocation, suspension, invalidation or modification of a business registration
certificate, domain name registration or goods label, it shall be sent to
concerned state management agencies and organizations for implementation.
Article 34. Execution of sanctioning decisions
1. The
execution and enforcement of administrative sanctioning decisions comply with
Articles 66. 66a, 67, 68 and 69 of the Ordinance on Handling of Administrative
Violations.
2. Business
management agencies, agencies and organizations managing domain names and
advertisements shall satisfy requests in administrative sanctioning decisions
for forcible termination of violations; removal of infringing elements; suspension
for a definite period of time of business activities, including also e-commerce
activities related to infringing goods or services; forcible removal of
infringing elements from advertisement media; forcible removal of information
on infringing goods or services from websites; change or withdrawal of
enterprise or domain names containing infringing elements.
3. Credit
institutions shall collect fines, remit or refund collected fine amounts based
on handling decisions of persons with sanctioning competence under the
Ordinance on Handling of Administrative Violations and this Decree.
Article 35. Modification, cancellation or invalidation of
administrative sanctioning decisions
1. In case a
decision on the settlement of a dispute on industrial property is issued by a
competent agency within 3 months from the date of issuance of an administrative
sanctioning decision, leading to a change in grounds and contents of the
administrative sanctioning decision, a person with sanctioning competence shall
issue a decision to modify, invalidate or cancel partially or wholly the
validity of the issued administrative sanctioning decision to make it
consistent with the dispute settlement decision.
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a/ Requesting
the Slate Treasury that has collected the fine to refund partially or wholly
the fine amount remitted under the decision on modification, cancellation or
invalidation of the sanctioning decision at the request of the organization or
individual that has paid the fine. The request for fine refund may be accepted
within 90 days after the date of issuance of the decision on modification,
cancellation or invalidation;
b/ Returning
the goods, article or means of business which has been seized or confiscated
but not yet handled. In case such goods, article or means of business has been
handled, the organization or individual that has requested the violation
handling shall pay a compensation to the handled organization or individual
according to the commitment realized upon requesting the violation handling, if
any;
c/ Other
handling measures as reasonably proposed by involved parties.
3. In case
the issuance of an administrative sanctioning decision is detected involving a
violation of issuing competence, procedures or grounds, such decision shall be
handled under Articles 118, 119 and 121 of the Ordinance on Handling of
Administrative Violations and the provisions of the law on settlement of
complaints and denunciations.
Article 36. Handling of material evidence and means used in
the commission of violations
1. Evidence
or means used in the commission of a violation shall be handled with the
following measures:
a/ Forcible
removal or destruction of infringing element(s);
b/ Forcible
removal of infringing element(s) and bringing out of the Vietnamese territory,
for infringing goods in transit; forcible re-export of infringing imported goods;
c/ Forcible
distribution or use for noncommercial purposes under the conditions specified
in Clause 2 of this Article;
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e/ Forcible
destruction of material evidence and means used in the commission of the
violation in case infringing element(s) cannot be removed.
2. Conditions
on application of the measure of forcible distribution or use for
non-commercial purposes:
a/ Goods and
articles have utilities and are not parts, sections or details of products,
stamps, labels or other articles bearing infringing elements;
b/ Infringing
elements have been removed;
c/ The
distribution or use is for noncommercial purposes, prioritizing humanitarian
or charity purpose or for public interests;
d/ Persons to
whom goods are distributed or who receive goods for use are not potential
customers of industrial property rights holders.
3. The
measure of forcible destruction shall be applied on any of the following
conditions:
a/ Infringing
elements cannot be removed from products, goods, stamps, labels, other
articles, material evidence or means used in the commission of violations;
b/ Goods have
no utility and are harmful to the health of humans, domestic animals and
plants.
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5. Persons
with sanctioning competence shall decide on and clearly indicate in their
sanctioning decisions measures to handle material evidence and means used in
the commission of violations which must be taken within 30 days after
sanctioning decisions are signed.
Administrative
violators shall implement measures to handle material evidence and means used
in the commission of violations specified in Clause 1 of this Article. If they
fail to voluntarily implement these measures, they shall be forced to do so-
They shall bear all expenses for application of forcible measures.
The handling
of material evidence and means used in the commission of violations shall be
conducted under supervision by representatives of agencies competent to handle
violations. Industrial property rights holders and their authorized representatives
may request persons with sanctioning competence to permit them to participate,
witness or support the handling.
Article 37. Procedures for confiscation and handling of
goods, material evidence and means used in the commission of violations
1. In case
material evidence and means used in the commission of violations are goods
bearing counterfeit marks or geographical areas: raw materials, materials and
means used mainly for the production of or trading in goods bearing counterfeit
marks or geographical areas; stamps, labels, packages or other articles
containing infringing elements; raw materials, materials and means used mainly
for the production of or trading in stamps, labels, packages or other articles
containing infringing elements; papers and documents are modified, erased or
forged, persons with sanctioning competence shall carry out procedures for
temporarily seizing such goods, material evidence and means and applying the
sanction of confiscation.
In case
infringing goods, material evidence and means used in the commission of
violations are bulky, difficult to transport or perishable, the measure of
temporary seizure shall be applied in the form of scaling and handover to
violators for preservation pending decisions of persons with sanctioning
competence.
2 The
sanction of confiscation and measures to handle confiscated goods, material
evidence and means used in the commission of violations shall be decided by
persons with sanctioning competence and clearly indicated in sanctioning
decisions as follows.
a/ In case
infringing elements can be removed, persons with sanctioning competence shall
organize the removal of these elements from goods, material evidence and means
used in the commission of violations for auction or distribution or use for
non-commercial purposes of these snoods, material evidence and means, provided
that such does not affect the capability of industrial property rights holders
to utilize their rights, prioritizing humanitarian, charity and social welfare
purposes:
b/ In case
infringing elements cannot be removed from goods, material evidence and means
used in the commission of violations or conditions for application of the
measure specified at Point a of this Clause are not fully satisfied, persons
with sanctioning competence shall organize the destruction thereof under
Article 61 of the Ordinance on Handling of Administrative Violations.
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Industrial
property rights holders and their authorized representatives may participate in
or supervise and shall support competent agencies in handling confiscated
goods, material evidence and means used in the commission of violations.
Chapter V
IMPLEMENTATION
PROVISIONS
Article 38. Transitional provisions
Cases of
administrative violation in industrial property accepted for handling on the
effective date of the Law Amending and Supplementing a Number of Articles of
the Law on Intellectual Property or afterwards but before the effective date of
this Decree shall be handled under the Government's Decree No. 106/2006/ND-CP
of September 22, 2006, on sanctioning of administrative violations in
industrial property.
For
administrative violations in industrial property which remain unhandled and for
which this Decree specifies lighter sanctioning levels and remedies, this
Decree will apply.
Article 39. Implementation effect
1. This
Decree takes effect on November 9, 2010, and replaces the Government's Decree
No. 106/2006/ND-CP of September 22, 2006, on sanctioning of administrative
violations in industrial property.
2. The
Ministry of Science and Technology shall guide the identification of
violations, procedures for application of the measure of remittance into the
state budget of illicit earnings from the commission of administrative
violations and other issues related to the implementation of this Decree;
collect, store and make statistics on information on the handling of violations
of the law on industrial property, establish and manage the database and
computer network on the enforcement of industrial property rights with
administrative measures.
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung