Decree No.99/2013/ND-CP on Sanction of Administrative Violation in Industrial Property

This Decree specifies acts of administrative violation, sanctioning forms and levels, remedies; procedures for filing written requests for handling of violations ... on sanctioning administrative violations in industrial property.

DECREE

ON SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN INDUSTRIAL PROPERTY

Pursuant to the Law on organization of Government dated December 25, 2001;

Pursuant to the Law on handling of administrative violations dated June 20, 2012;

Pursuant to the Law on intellectual property dated November 29, 2005; Law on amending and supplementing a number of articles of Law on intellectual property dated June 19, 2009 (hereinafter collectively referred to as Law on intellectual property);

Pursuant to the Law on information technology dated June 29, 2006;

Pursuant to the Law on competition dated December 03, 2004;

At the proposal of Minister of Science and Technology;

The Government promulgates Decree on sanctioning of administrative violations in industrial property.

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of adjustment

This Decree specifies acts of administrative violation, sanctioning forms and levels, remedies; procedures for filing written requests for handling of violations; competence and procedures for settling written requests for handling of violations; sanctioning competence and enforcement of decisions on sanctioning administrative violations in industrial property.

Article 2. Provisions on the maximum fine level, sanctioning competence for individuals, organizations

1. The fine levels for acts defined in Chapter 2 of this Decree will be the fine levels applicable to individuals. The maximum fine level for individuals will be 250,000,000 VND.

For the same act of administrative violation, the fine level for organization will be twice as the fine level for individual. The maximum fine level for organizations will be 500,000,000 VND.

2. The competence of sanctioning administrative violations of persons defined in Articles from 16 thru 21 of this Decree is competence applicable to an administrative violation of individual. In case of fine, sanctioning competence for organizations will be twice as sanctioning competence for individuals.

Article 3. Sanctioning forms, remedies

1. For each act of administrative violation in industrial property, infringing organizations and individuals must suffer either of principal sanctioning forms being warning or fine.

2. Depend on nature and severity of violations, infringing organizations and individuals may also be applied one or more of the following additional sanctioning forms:

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;

b) Deprivation of the right to use industrial property representation practice certificates; assessor cards; or certificates of eligibility for assessment practice, for between 01 and 03 months from the effective date of the sanctioning decision;

c) Suspension of the production, trading or provision of infringing products or services, for between 01 and 03 months from the effective date of the sanctioning decision.

3. Apart from principal sanctioning forms, additional sanctioning forms, infringing organizations and individuals 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 and destruction of infringing elements; forcible alteration or return of domain names; forcible alteration of enterprise names, removal of infringing elements in enterprise names;

b) Forcible use for non­commercial purposes of goods bearing counterfeit marks or geographical indications; raw materials, materials and means used mainly for producing or trading in these goods, after infringing elements on these goods are removed, provided such act does 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 are removed;

d) Forcible destruction of goods bearing counterfeit marks or geographical indications, means, raw materials and materials used mainly for producing or trading in these goods, evidence and means involved in violations on which infringing elements cannot be removed; infringing goods which may cause harms to the health of humans, domestic animals, plants and the environment; stamps, labels, and articles bearing counterfeit marks or geographical indications; stamps, labels, packages and other articles bearing infringing elements; protection titles, certificates or other documents which are modified, erased or counterfeited;

dd) Forcible modification or addition of indications on industrial property;

e) 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) Forcible remittance of illicit earnings from the commission of administrative violations or forcible remittance of an amount equal to value of material evidence or means of administrative violation which have been sold, dispersed or destroyed in contrary to provisions of law.

Article 4. Valuation of infringing goods or services

1. The valuation of goods or services infringing the industrial property rights for use as a basis for determining the fine bracket and sanctioning competence shall be applied basing on one of grounds according to the priority order specified in Clause 2 Article 60 of the Law on Handling of Administrative Violations as follows:

a) The price listed or stated in the contract or purchase invoices or import declaration;

b) The price according to the notice of local financial agencies; in case of without price notice, the price shall be based on the market price in the localities at the time of happening administrative violations;

c) The cost price of infringing goods if they are goods not yet been brought out for sale.

2. For material evidences being goods bearing counterfeit marks as prescribed in Clause 2 Article 213 of the Law on Handling of Administrative Violations, the valuation of such goods shall be conducted as valuation of goods infringing industrial property rights as prescribed in Clause 1 of this Article.

3. In case the grounds mentioned in Clause 1 of this Article cannot be applied for valuating material evidences being infringing goods or services to serve as a basis for determining the fine bracket or sanctioning competence, the competent persons settling case may issue a decision to temporarily seizure the infringing material evidences and establish a Council of valuation as prescribed in Clause 3 Article 60 of the Law on Handling of Administrative Violations.

...

Download here

Chapter 5.

IMPLEMENTATION PROVISIONS

Article 33. Effect

1. This Decree takes effect on October 15, 2013.

2. The Government's Decree No. 97/2010/ND-CP dated September 21, 2010 on sanctioning of administrative violations in industrial property cease to be effective on the effective date of this Decree.

Article 34. Transitional provisions

For acts of administrative violations in domain of industrial property happened before July 01, 2013, then detected or currently being considered and handled, provisions beneficial for infringing organizations and individuals will be applied.

Article 35. Implementation organization

1. The Ministry of science and technology shall guide implementation of this Decree.

2. The Ministry of Planning and Investment, and Ministry of science and technology shall guide the processes of and procedures for changing enterprise name, removing infringing elements from enterprise name, and revoking certificates of business register in case where enterprise names infringe law on intellectual property.

3. The Ministry of Information and Communications, and Ministry of science and technology shall guide processes of and procedures for changing, revoking domain names infringing law on intellectual property.

4. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People’s Committees of the provinces and centrally-run cities shall, in their functions and tasks, organize implementation of this Decree.