Chapter IV
INTELLECTUAL PROPERTY CONTROL OVER IMPORTS AND EXPORTS
Article 48.- Procedures for suspension of customs procedures
1. Holders of intellectual property (IP) rights or their lawfully authorized persons (hereinafter called applicants) shall have the right to file with customs offices applications for a long term or specific suspension of customs procedures for imports or exports suspected of infringing upon IP rights (hereinafter called suspension applications for short).
2. The authorization of the filing of applications shall be conducted as follows:
a/ Vietnamese individuals, legal persons and other subjects as well as foreign individuals residing in Vietnam may authorize industrial property representation service organizations to file applications on their behalf;
b/ Foreign legal persons having representative offices in Vietnam, foreign individuals or legal persons having production and/or business establishments in Vietnam may authorize their Vietnam-based representative offices or production and/or business establishments or industrial property representation service organizations to file applications on their behalf;
c/ Foreign individuals not residing in Vietnam and having no production and/or business establishments in Vietnam, foreign legal persons having neither lawful representatives nor production and/or business establishments in Vietnam may only authorize industrial property representation service organizations to file applications on their behalf.
3. When requesting the suspension of customs procedures, applicants must provide customs offices with the following documents:
a/ For long-term suspension requests:
- The application (made according to a set form);
- Copies of industrial property protection titles or other documents evidencing industrial property rights being protected in Vietnam or copies of certificates of registration of contracts on the transfer of rights to use industrial property objects; copies of copyright and relevant right registration certificates or other documents evidencing copyright and relevant rights;
- The written authorization of application filing (in case of authorization);
- The detailed description of goods infringing upon IP rights, including photos (if any), and characteristics for distinguishing genuine goods from goods infringing upon IP rights;
- The list of lawful importers or exporters of goods requested to be supervised; the list of importers or exporters that are likely to import or export goods infringing upon IP rights;
- The mode of import or export and other information related to the import or export of goods infringing upon IP rights (if any);
- The receipt of payment of fee for suspension of customs procedures with regard to goods suspected of infringing upon IP rights.
b/ For specific suspension requests:
- The application (made according to a set form);
- Copies of industrial property protection titles or other documents evidencing industrial property rights currently protected in Vietnam or copies of certificates of registration of contracts on the transfer of rights to use industrial property objects; copies of copyright and relevant right registration certificates or other documents evidencing copyright and relevant rights;
- The written authorization of application filing (in case of authorization);
- The address of the goods importer or exporter (if any);
- The predicted time and venue of carrying out import and export procedures;
- The detailed description or photos of goods infringing upon IP rights;
- The results of expertizing initial evidence by an IP expertise organization;
- The receipt of payment of security money into the customs custody account at the state treasury equal to 20% of the goods lot’s value stated in the contract or of at least VND 20,000,000 (where the value of such goods lot has not yet been determined), or the guarantee document issued by a credit institution to secure the payment of damages for the goods owner and other expenses which may be incurred by concerned agencies, organizations or individuals due to improper suspension of customs procedures;
- The receipt of payment of fee for suspension of customs procedures for goods suspected of infringing upon IP rights.
Article 49.- Term and scope of application
1. The effective term of a long-term suspension application shall be 01 (one) year, counting from the date it is accepted by the customs office. This term may be extended for one more year but shall not be longer than the time limit for protection of relevant IP objects and the applicant shall have to pay an extension fee under regulations of the Finance Ministry.
2. Venues for receipt of applications:
a/ Customs Sub-Departments shall receive applications falling within the scope of border-gates under their management;
b/ Customs Departments shall receive applications falling within the scope of border-gates under their management;
c/ The General Department of Customs shall receive applications falling within the scope of border-gates under management of 02 or more Customs Departments;
3. Within 30 (thirty) days after receiving long-term suspension applications or within 24 working hours after receiving specific suspension applications, which are complete under the provisions of Clause 3, Article 48 of this Decree, customs offices shall have to consider and issue written notices on the acceptance of such applications and acknowledgement of information therein. If rejecting the applications, they must give written replies, clearly stating the reasons therefor.
Article 50.- Procedures for exercise of IP rights
1. After accepting applications, the General Department of Customs and Customs Departments shall supply relevant Customs Sub-Departments in charge of such applications with acknowledged information about goods bearing fake labels or infringing upon IP rights, and direct follow-up work.
2. If accepting applications, basing themselves on information in such applications and instructions of the General Department of Customs and provincial/municipal Customs Departments, Customs Sub-Departments shall have to inspect and detect goods suspected of bearing fake labels or infringing upon IP rights. When detecting goods lots with fake labels or infringing upon IP rights, directors of Customs Sub-Departments shall suspend the carrying out of customs procedures and notify applicants thereof in writing, concurrently request the latter to pay an advance amount for security or submit guarantee documents (if not paid or submitted yet) within 03 (three) working days after the issuance of notices.
a/ Within 03 (three) working days after suspension, if applicants neither request further suspension of customs procedures nor pay an advance security amount or submit guarantee documents, Customs Sub-Departments shall continue carrying out customs procedures for concerned goods lots;
b/ Where applicants satisfy the said requirements, directors of Customs Sub-Departments shall decide on the suspension of customs procedures for the goods lots and immediately send such decisions to the concerned parties.
A decision on suspension of customs procedures must specify the goods lot subject to suspension; the names, addresses, fax and telephone numbers of the goods lot owner and the applicant; the holder of IP rights; the reasons for suspension of customs procedures and the suspension term.
Article 51.- Term of suspension of customs procedures and inspection for determination of legal IP status
1. The term of suspension of customs procedures shall be 10 (ten) working days from the date of issuance of suspension decisions.
During the term of suspension of customs procedures, if applicants request the extension of such term and pay additional security money amounts at the levels specified in Clause 3, Article 48 of this Decree, directors of Customs Sub-Departments shall issue decisions to prolong this term for another 10 (ten) working days at most.
2. The time for concerned parties to supplement evidence, arguments and documents or the time for expertise at an IP state management agency at the request of Customs Sub-Departments shall not be counted into the term mentioned in Clause 1 of this Article.
3. Determination of legal IP status of goods subject to customs procedure suspension
a/ Contents of determination shall cover:
- Whether the goods contain infringing elements or not;
- Whether the goods have been marketed by IP right holders, persons permitted by such holders or persons with lawful use rights (hereinafter called IP right holders for short) or not.
b/ Customs Sub-Departments shall determine the legal IP status of goods subject to customs procedure suspension on the basis of evidence, arguments and documents of goods owners and IP right holders. Evidence, arguments and documents of applicants shall be considered only when they are supplied to Customs Sub-Departments during the customs procedure suspension term;
c/ Based on supplied evidence, arguments and documents, if Customs Sub-Departments cannot determine the legal IP status of goods subject to customs procedures suspension, they may request applicants to send written requests to IP expertise organizations for expertise and conclusion.
Article 52.- Continuation of customs procedures for goods suspended therefrom and handling of involved parties
1. Directors of Customs Sub-Departments shall issue decisions to continue carrying out customs procedures for goods lots suspended therefrom in the following cases:
a/ Upon the end of the suspension term, Customs Sub-Departments have not received any written requests for handling of acts of infringing upon IP rights from the applicants or any documents from competent state management agencies or courts which have received written requests for the settlement of disputes over IP rights related to the goods lots suspended from customs procedures;
b/ The results of determination of the legal IP status of the goods lots suspended from customs procedures show that they do not infringe upon IP rights;
c/ The decisions of competent IP dispute-settling agencies affirm that the goods lots suspended from customs procedures do not infringe upon IP rights;
d/ The decisions on customs procedures suspension are suspended or withdrawn under complaint-settling decisions;
e/ The applicants withdraw their applications for customs procedure suspension.
2. Customs offices shall issue decisions to force applicants to pay all expenses incurred by goods owners due to the improper suspension of customs procedures. Such expenses shall cover costs of warehousing, loading, unloading and preservation of goods. Damage caused by customs procedure suspension shall be agreed upon by involved parties or determined according to civil procedures.
3. Applicants shall be refunded all security amounts already paid into custody accounts of customs offices or receive back guarantee documents granted by credit institutions after they have fully paid incurred expenses and damage under decisions of customs offices or competent agencies.
4. The tax payment time limit (if any) shall be counted from the date of issue of the decision on continuation of customs procedures for a goods lot.
Article 53.- Handling of involved parties in case of IP right infringement
1. Where it is concluded that goods suspended from customs procedures infringe upon IP rights, goods owners and their goods shall be handled in accordance with the provisions of law.
2. Owners of imports or exports shall bear responsibility before law, implement decisions of competent state agencies, pay damages to IP right holders and expenses incurred due to customs procedure suspension.
3. Goods owners and applicants shall have the right to complain about decisions and conclusions of customs offices regarding the application of IP-related border control measures under the provisions of law.
Article 54.- Responsibilities of IP right holders
IP right holders shall have to take initiative in providing information relating to goods infringing upon IP rights to customs offices; coordinate with the National Office of Intellectual Property, the Copyright Office and the General Department of Customs in annually organizing professional refresher courses for customs officers in order to raise their awareness and initiative in inspecting and stopping goods infringing upon IP rights at border-gates.
Article 55.- Responsibilities of competent agencies
1. The General Department of Customs shall have to organize the implementation of IP-related border control measures in compliance with the provisions of law.
2. The National Office of Intellectual Property under the Ministry of Science and Technology and the Copyright Department under the Ministry of Culture and Information shall have to provide the General Department of Customs with information about IP objects currently protected in Vietnam and coordinate with the latter in giving professional instructions and organizing professional IP refresher courses for customs units directly implementing IP-related border control measures.
3. The National Office of Intellectual Property, the Copyright Department and local IP management agencies shall have to conduct IP expertise at the request of customs offices and involved agencies according to their competence and procedures provided for by IP law.
Tìm kiếm
Nghị định 154/2005/NĐ-CP (Bản Word)