Chương XVIII Luật Sở hữu trí tuệ 2005: Xử lý xâm phạm quyền sở hữu trí tuệ bằng biện pháp hành chính và hình sự; kiểm soát hàng hoá xuất khẩu, nhập khẩu liên quan đến sở hữu trí tuệ

Chapter XVIII

DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE AND CRIMINAL MEASURES; CONTROL OF INTELLECTUAL PROPERTY RELATED IMPORTS AND EXPORTS

Section 1. DEALING WITH INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY APPLICATION OF ADMINISTRATIVE AND CRIMINAL MEASURES

Article 211. Acts of infringement of industrial property rights which shall be subject to administrative penalties

1. The following acts of infringement of industrial property rights shall be subject to administrative penalties:

 (a) Acts of infringement of intellectual property rights which cause loss and damage to consumers or society;

 (b) Failure to terminate an act of infringement of intellectual property rights although the intellectual property right holder has issued a written notice requesting termination of such act;

 (c) Producing, importing, transporting or trading in intellectual property counterfeit goods stipulated in article 213 of this Law, or assigning others to do so;

 (d) Producing, importing, transporting or trading in articles bearing a mark or geographical indication which is identical or confusingly similar to a protected mark or geographical indication, or assigning others to do so.

2. The Government shall specify acts of infringement of intellectual property rights which shall be subject to administrative penalties, the forms and levels of penalties, and the procedures for applying same.

3. Any organization or individual who commits an act of unfair competition in intellectual property shall be subject to an administrative penalty in accordance with the law on competition.

Article 212. Acts of infringement of industrial property rights which shall be subject to criminal penalties

Any individual who commits an act of infringement of intellectual property rights involving a criminal element shall be criminally prosecuted in accordance with the criminal law.

Article 213. Intellectual property counterfeit goods

1. Intellectual property counterfeit goods regulated in this Law comprise goods bearing counterfeit marks and goods bearing counterfeit geographical indications (hereinafter referred to as counterfeit mark goods) defined in clause 2 of this article and pirated goods defined in clause 3 of this article.

2. Counterfeit mark goods means goods or their packages bearing a mark or sign which is identical with or indistinguishable from a mark or geographical indication currently protected for those very goods, without permission from the mark owner or organization managing the geographical indication.

3. Pirated goods means copies made without permission from the copyright holder or related right holder.

Article 214. Forms of administrative penalty and measures for remedying consequences

Any organization or individual who commits an act of infringement of intellectual property rights defined in clause 1 of article 211 of this Law shall be compelled to terminate such act and shall be subject to one of the following principal penalties:

 (a) A caution;

 (b) A monetary fine.

2. Any organization or individual who infringes intellectual property rights may, depending on the nature and seriousness of the infringement, also be subject to one of the following additional penalties:

 (a) Confiscation of intellectual property counterfeit goods, raw materials and materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods;

 (b) Suspension of business activities for a fixed period in the sector in which the infringement was committed.

3. In addition to the penalties stipulated in clauses 1 and 2 of this article, any organization or individual who infringes intellectual property rights may also be subject to one or more of the following measures for remedying consequences:

 (a) Compulsory destruction, distribution or use for non-commercial purposes of intellectual property counterfeit goods as well as raw materials and materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods, provided that such destruction, distribution or use will not affect the exploitation of rights by intellectual property right holders;

 (b) Compulsory transportation out of the territory of Vietnam of transit goods infringing intellectual property rights or compulsory re-export of intellectual property counterfeit goods and imported materials and raw materials, and facilities used mainly for production or trading of such intellectual property counterfeit goods after the infringing elements have been removed from such goods.

4. The amount of the monetary fine stipulated in sub-clause (b) of clause 1 of this article shall be set at least equal to the value of the detected infringing goods but shall not exceed five times such value.

The Government shall issue detailed regulations on the method of determining the value of infringing goods.

Article 215. Preventive measures and/or measures to secure enforcement of administrative penalties

1. In the following cases, organizations and individuals shall have the right to request the competent body to apply preventive measures and/or measures to secure enforcement of the administrative penalties stipulated in clause 2 of this article:

 (a) An act of infringement of intellectual property rights is likely to cause serious loss and damage to consumers or society;

 (b) Material evidence of the infringement is likely to be dispersed or there are indications that the offender will evade responsibility;

 (c) In order to secure enforcement of a decision imposing an administrative penalty.

2. Preventive measures and/or measures to secure enforcement of administrative penalties which may be applied in accordance with administrative procedures to acts of infringement of intellectual property rights shall comprise:

 (a) Temporary detention of persons;

 (b) Temporary custody of infringing goods, material evidence and facilities;

 (c) Body searches;

 (d) Searches of means of transport and objects; searches of places where infringing goods, material evidence and facilities are hidden;

 (dd) Other administrative preventive measures in accordance with the law on dealing with administrative breaches.

Section 2. CONTROL OF INTELLECTUAL PROPERTY RELATED IMPORTS AND EXPORTS

Article 216. Measures to control intellectual property related imports and exports

1. Measures to control intellectual property related imports and exports shall comprise:

 (a) Suspension of customs procedures for goods suspected of infringing intellectual property rights;

 (b) Inspection and supervision to detect goods showing signs of infringing intellectual property rights.

2. Suspension of customs procedures for goods suspected of infringing intellectual property rights means a measure taken at the request of an intellectual property right holder in order to collect information and evidence on the goods consignment in question so that the intellectual property right holder may exercise the right to request that the infringing act be dealt with and to request the application of provisional urgent measures, preventive measures and/or measures to secure enforcement of administrative penalties.

3. Inspection and supervision to detect goods showing signs of infringing intellectual property rights means a measure taken at the request of an intellectual property right holder in order to collect information for the exercise of the right to request suspension of customs procedures.

4. If any intellectual property counterfeit goods within the meaning of article 213 of this Law are found during the course of application of the measures stipulated in clauses 2 and 3 of this article, the customs office shall have the right and responsibility to apply administrative remedies to deal with such goods in accordance with articles 214 and 215 of this Law.

Article 217. Obligations of applicants for measures to control intellectual property related imports and exports

1. An applicant for application of a measure to control intellectual property related imports or exports shall have the following obligations:

 (a) To prove that the applicant is an intellectual property right holder by producing the documents and evidence stipulated in clause 2 of article 203 of this Law;

 (b) To supply information sufficient to identify goods suspected of infringing intellectual property rights or to detect goods showing signs of infringing intellectual property rights;

 (c) To file a written request with the customs office and to the pay fees and charges stipulated by law;

 (d) To pay damages and other expenses incurred to persons subject to control measures in a case where the controlled goods are found not to have infringed industrial property rights.

2. In order to secure the performance of the obligation stipulated in sub-clause (d) of clause 1 of this article, an applicant shall deposit security in one of the following forms:

 (a) A sum of money equal to twenty (20) per cent of the value of the goods consignment subject to the application of the measure of suspension of customs procedures, or at least twenty million (20,000,000) dong where it is impossible to value such goods;

 (b) A deed of guarantee issued by a bank or other credit institution.

Article 218. Procedures for application of the measure of suspension of customs procedures

1. When an applicant for the suspension of customs procedures has fulfilled the obligations stipulated in article 217 of this Law, the customs office shall issue a decision suspending customs procedures with regard to the goods consignment in question.

2. The duration of suspension of customs procedures shall be ten (10) working days from the date of issuance of the suspension decision. Where the applicant has justifiable reasons, this duration may be extended but must not exceed twenty (20) working days, provided that the applicant deposits the security stipulated in clause 2 of article 217 of this Law.

3. Upon expiry of the duration stipulated in clause 2 of this article, if the applicant does not initiate civil proceedings and the customs office does not issue a decision accepting jurisdiction to deal with the case in accordance with administrative procedures as an administrative breach by the importer or exporter of the goods, then the customs office shall have the following responsibilities:

 (a) To continue customs procedures for the goods consignment in question;

 (b) To compel the applicant to compensate for all loss and damage caused to the owner of the goods consignment due to the unreasonable request for suspension of customs procedures, and to pay expenses for warehousing and preservation of goods as well as other expenses incurred by the customs office and any related body, organization or individual in accordance with the law on customs;

 (c) To refund to the applicant the remaining security amount after the obligation to pay compensation and expenses stipulated in sub-clause (b) above has been fulfilled.

Article 219. Inspection and supervision to detect goods showing signs of infringement of intellectual property rights

Where an intellectual property right holder requests inspection and supervision to detect goods showing signs of infringement of intellectual property rights and the customs office then finds such a goods consignment, the customs office shall promptly notify the applicant thereof. If the applicant does not request the suspension of customs procedures with regard to the offending goods consignment and the customs office does not issue a decision on consideration of application of the administrative penalties stipulated in articles 214 and 215 of this Law within three working days from the date of notification, then the customs office must continue carrying out customs procedures for the goods consignment in question.