Chương II Nghị định 65/2023/NĐ-CP: Yêu cầu và giải quyết yêu cầu xử lý hành vi xâm phạm

Chapter II

REQUESTS AND PROCESSING OF REQUESTS OF ACTS OF INFRINGEMENT

Article 88. Exercising rights to self-protection

1. Organizations and individuals shall exercise rights to self-protection prescribed in Article 198 of the Law on Intellectual Property and this Article.

2. Technological measures prescribed in Point a Clause 1 Article 198 of the Law on Intellectual Property include:

a) Inclusion of the information on instructions on arising grounds, protection titles, owners, scope, protection period, and other information on industrial property rights and rights to plant varieties to the products and means of services (hereinafter referred to as "products" in this Article) for notifying that the products are subjects of industrial property rights or rights to plant varieties under protection and warning other people from conducting any act of infringement;

b) Use of technical equipment or measures to mark, recognize, distinguish, and protect any product under protection.

3. Requests for termination of acts of infringement prescribed in Point b Clause 1 Article 198 of the Law on Intellectual Property shall be carried out in the form of written notifications sent to the perpetrators by the holders of industrial property rights or rights to plant varieties. Written notifications shall include the information on instructions on arising grounds, protection titles, scope, and protection period and impose a reasonable time limit for the perpetrators to terminate their acts of infringement.

4. Requests for competent state agencies to handle acts of infringement prescribed in Point c Clause 1 Article 198 of the Law on Intellectual Property shall comply with Articles 89, 90, 91, 92, 93, and 94 of this Decree.

Article 89. Applications for handling of infringement

1. An application for the handling of infringement shall include:

a) Application preparation date;

b) Name and address of the petitioner or name of the representative in case the request is performed via the representative;

c) Name of the authority receiving the application;

d) Name and address of the perpetrator; name and address of the suspected perpetrator in case of requesting for suspension of customs procedures for imports and exports suspected to be infringed on;

dd) Name and address of the organization or individual with related rights and benefits (if any);

e) Name and address of the witness (if any);

g) Summarized information on the infringed industrial property rights or rights to plant varieties: type of rights, grounds of arising rights, and summary of the subject of the rights;

h) Summarized information on the act of infringement: date and place of infringement, short description of the infringing product, act of infringement, and other information (if any);

i) Content of the request for the application of violation handling measures;

k) List of documents and evidence enclosed with the application;

l) Signature of the applicant and seal (if any).

2. The application for the infringement handling shall contain documents and evidence backing the request. The mentioned documents and evidence shall comply with Article 90 of this Decree.

Article 90. Documents and evidence enclosed with applications for infringement handling

1. The petitioner shall enclose the following documents and evidence with the application for infringement handling to back his/her request:

a) Evidence of right holder if the petitioner is the owner or the person who receives the transfer of or inherits industrial property rights or rights to plant varieties;

b) Evidence of occurred infringement or evidence to suspect that imports or exports infringe on industrial property rights or rights to plant varieties regarding an application for temporary suspension of customs procedures;

c) Other documents and evidence backing the petitioner’s request.

2. If the application for infringement handling is carried out via an authorized representative, the authenticated or certified authorizing document shall be enclosed with the application. If the application is carried out via a legal representative, documents proving the status of the legal representative shall be enclosed with the application.

Article 91. Evidence of right holders

1. Regarding an invention, industrial design, layout design, mark, or plant variety, the evidence of the right holder is one of the following documents:

a) Copy of the invention patent, utility solution patent, industrial design patent, certificate of registration of semiconductor integrated circuit, certificate of mark registration, or plant variety protection title enclosed with the original for comparison, excluding the cases of copies certified under regulations;

b) Excerpt of the National Industrial Property Register or excerpt of the National Register of Protected Plant Varieties issued by the authority competent to register the concerned subjects.

2. Regarding a mark internationally registered under the Madrid Agreement and Madrid Protocol indicating Vietnam, the evidence of the right holder is the confirmation certificate of an internationally registered mark protected in Vietnam issued by the industrial property right authority or its certified copy or excerpt of the National Industrial Property Register (the part for Internationally Registered Marks).

3. Regarding an industrial design internationally registered under the Hague Agreement indicating Vietnam, the evidence of the right holder is the copy of the decision to accept the protection of the industrial design internationally registered issued by the industrial property right authority enclosed with the original for comparison or its certified copy or excerpt of the National Industrial Property Register (the part for Internationally Registered Industrial Designs).

4. Regarding a geographical indication, the evidence of the right holder is one of the following documents:

a) Certificate of registration of the geographical indication or excerpt of the National Industrial Property Register;

b) List of organizations and individuals using the geographical indication according to Point c Clause 1 Article 38 of this Decree or other documents proving the right holder under the law of the country of origin in case of foreign geographical indication protected in Vietnam.

5. Regarding other subjects of industrial property, the evidence of the right holder means the documents, items, and information on the grounds to establish the corresponding rights according to Points a, b, c Clause 3 Article 6 of the Law on Intellectual Property and is elaborated as follows:

a) Regarding a business secret: descriptions of content, storage forms, protection methods, and measures to achieve the business secret;

b) Regarding a trade name: documents proving the legal use of the trade name, business field, and business location using the trade name, and the process of using the trade name;

c) Regarding a famous mark: documents specifying the criteria for assessment of the famous mark under Article 75 of the Law on Intellectual Property and presentation of the use process that makes the mark famous;

d) Regarding a geographical indication protected under an international treaty: documents and information in the international treaty containing the content of recognition and protection of the geographical indication or excerpt of the National Industrial Property Register;

dd) Regarding a plant variety: unexpired plant variety protection title, decision on issuance or re-issuance of the plant variety protection title, or excerpt of the National Register of Protected Plant Varieties and evidence collected from sources prescribed in Article 94 of the Civil Procedure Code.

6. If the petitioner for infringement handling is the person who receives the transfer of the rights to the subject of industrial property rights or rights to plant varieties, transfers the rights to use the subject of industrial property rights or rights to plant varieties, or inherits the subject of industrial property rights or rights to plant varieties, aside from the documents prescribed in Clauses 1, 2, and 3 of this Article, it is necessary to present the original or legal copy of the contract of the transfer of rights to the subject of industrial property rights or rights to plant varieties, contract of the use of the subject of industrial property rights or rights to plant varieties, or document confirming the rights to inherit the subject of industrial property rights or rights to plant varieties. In case the transfer has been recorded in the protection title, the certificate of contract registration of the transfer of rights to the subject of industrial property rights or rights to plant varieties, or certificate of contract registration of the use of the subject of industrial property rights or rights to plant varieties, the mentioned documents are also considered evidence of the status of the right holder.

Article 92. Evidence of infringement

1. The following documents and items shall be considered evidence of infringement:

a) Original or legal copy of the related description, sample, or item specifying the protected subject;

b) Related sample, item, photo, and video of the product in consideration;

c) Explanation or comparison between the product in consideration with the protected subject;

d) Minutes, testimonies, and other documents proving the infringement.

2. Documents and items prescribed in Clause 1 of this Article shall be made into a list with a confirmation signature of the petitioner for infringement handling.

Article 93. Responsibilities of petitioners for infringement handling

Petitioners for infringement handling shall ensure and take responsibility for the honesty of their provision of information, documents, and evidence.

Article 94. Applying and settling applications for infringement handling

1. An application for infringement handling shall be submitted to any of the infringement handling authorities prescribed in Article 200 of the Law on Intellectual Property.

2. After receiving the application for infringement handling, if the request is within the jurisdiction of another authority, the receiving authority shall instruct the applicant to submit the application to the competent authority or transfer it to the competent authority for settlement within 10 days from the date of receiving the application.

3. If the application for infringement handling fails to ensure a sufficient number of necessary documents, evidence, and items, the infringement handling authority shall request the applicant to provide supplements and impose a reasonable time limit that does not exceed thirty days for the applicant to supplement the necessary documents and evidence.

4. The infringement handling authority shall refuse the request for infringement handling and specify the reasons in the following cases:

a) The applicant fails to satisfy the request of the infringement handling authority regarding the supplement to related documents, evidence, and items after the imposed time limit prescribed in Clause 3 of this Article;

b) The prescriptive period for infringement handling expires as prescribed by laws;

c) Verification results of the infringement handling authority deny the infringement described in the application for infringement handling;

d) A competent authority issues a document on insufficient grounds to handle the infringement.

5. In case of a dispute over or complaint about the subject of rights, protection capacity, or protection scope of industrial property rights or rights to plant varieties, the authority that receives the application for infringement handling shall instruct the applicant to perform the procedure for requesting the settlement of the dispute or complaint at a competent authority within 10 days from the date the dispute arises.

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