Phần thứ tư Nghị định 65/2023/NĐ-CP: Bảo vệ quyền sở hữu công nghiệp, quyền đối với giống cây trồng

Part four

PROTECTION OF INDUSTRIAL PROPERTY RIGHTS AND RIGHTS TO PLANT VARIETIES

Chapter I

DETERMINATION OF ACTS, NATURE, AND LEVEL OF INFRINGEMENT AND DAMAGE IDENTIFICATION

Section 1. GROUNDS TO DETERMINE ACTS, NATURE, AND LEVEL OF INFRINGEMENT

Article 71. Application of civil, administrative, and criminal measures to protect industrial property rights and rights to plant varieties

Acts of infringement may, based on the nature and level, be handled by civil, administrative, and criminal measures according to Part Five (Protection of Industrial Property Rights) of the Law on Intellectual Property and the following regulations:

1. Civil measures shall be applied to handle any act of infringement at the request of the holder of industrial property rights or rights to plant varieties or the organization or individual with damage caused by the infringement, even if such an act has been or is being handled by administrative or criminal measures.

The procedure for requesting the application of civil measures and the competence and procedure for applying civil measures shall comply with civil procedure laws.

2. Administrative measures shall be applied to handle any act of infringement that falls into one of the cases prescribed in Article 211 of the Law on Intellectual Property at the request of the holder of industrial property rights or rights to plant varieties, the organization or individual with damage caused by such acts, or a competent authority.

Forms, fines, competence, and procedure for fining acts of infringement and measures to remedy the consequences in compliance with the Law on Intellectual Property and administrative handling laws concerning industrial property rights and rights to plant varieties.

3. Criminal measures shall be applied to handle any act of infringement if such an act has sufficient elements to constitute a crime according to the Criminal Code.

The competence and procedure for applying criminal measures shall comply with criminal procedure laws.

Section 72. Determination of violations

Acts are considered infringements on industrial property rights and rights to plant varieties according to Articles 126, 127, 129, and 188 of the Law on Intellectual Property when the following grounds are found:

1. The subject in consideration falls into the scope of subjects under protection;

2. There are elements of infringement in the subject in consideration;

3. The person who commits the act that is in consideration is not the holder of industrial property rights or rights to plant varieties and is not a person permitted by laws or a competent authority according to Clause 2 and Clause 3 Article 125, Article 133, Clause 3 Article 133a, Article 134, Clause 2 Article 137, Article 145, Article 190, and Article 195 of the Law on Intellectual Property;

4. The act in consideration takes place in Vietnam. The act will also be considered to take place in Vietnam if it occurs on the Internet and is carried out on an information website under a Vietnamese domain name or with the display language of Vietnamese or aims at consumers or information users in Vietnam.

Article 73. Grounds to identify subjects of protection

1. The identification of subjects of protection shall be performed by assessing documents and evidence proving the arising grounds and establishment of rights according to Article 6 of the Law on Intellectual Property.

2. Regarding industrial property rights registered at competent authorities, the subjects of protection shall be identified according to the certificates of registration confirmation, protection titles, and documents enclosed with such certificates of registration confirmation and protection titles.

3. Regarding trade names, the subjects of protection shall be identified based on the use progress, fields, and territories using such trade names.

4. Regarding business secrets, the subjects of protection shall be identified based on documents specifying the content and nature of the business secrets and presenting and describing the corresponding confidentiality measures.

5. Regarding famous marks, the subjects of protection shall be identified based on documents and evidence that the marks are used widely to achieve their fame following the criteria prescribed in Article 75 of the Law on Intellectual Property.

6. Regarding geographical indications protected under international treaties, the subjects of protection shall be identified according to international treaties or the National Industrial Property Register.

7. Rights to plant varieties shall be determined according to plant variety protection titles issued by competent authorities.

Article 74. Elements of infringement on invention ownership

1. Elements of infringement on rights to inventions may be in one of the following forms:

a) A product or any part of the product is identical or similar to a product or any part of the product under the scope of invention protection;

b) A procedure is identical or similar to a procedure under the scope of invention protection;

c) A product or any part of the product is produced under a procedure identical or similar to a procedure under the scope of invention protection.

2. The ground to determine elements of infringement on rights to inventions is the scope of invention protection determined according to the invention patents, utility solution patents, or excerpts from the National Industrial Property Register.

Article 75. Elements of infringement on rights to layout designs

1. Elements of infringement on rights to layout designs may be in one of the following forms:

a) A layout design is created from an illegal copy of a protected layout design;

b) A semiconductor integrated circuit is created illegally following a protected layout design;

c) A product or any part of the product with a semiconductor integrated circuit prescribed in Point b of this Clause.

2. The ground to determine elements of infringement on rights to layout designs is the scope of protection of rights to layout designs determined according to certificates of registration of semiconductor integrated circuit or excerpts from the National Industrial Property Register.

Article 76. Elements of infringement on rights to industrial designs

1. Elements of infringement on rights to industrial designs refer to when a product or any part for assembly into a complex product whose external appearance does not differ significantly from the protected industrial design.

2. The ground to determine elements of infringement on rights to industrial property is the scope of protection of industrial designs determined according to the industrial design patents, decisions on acceptance of the protection of industrial designs internationally registered, or excerpts from the National Industrial Property Register.

3. A product or any part for assembly into a complex product whose appearance is considered to not differ significantly from a protected industrial design if it falls into one of the following cases:

a) The product or any part for assembly into the complex product in consideration, even if it has an issued industrial design patent, has an appearance that is a combination of design features that forms a whole that is a copy or essentially a copy (nearly indistinguishable) of a protected industrial design of another person;

b) The product or any part for assembly into the complex product is considered to have an external appearance that is a combination of design features that forms a whole that is a copy or essentially a copy of an industrial design of at least one product in the protected set of products of another person.

Article 77. Elements of infringement on rights to marks

1. Elements of infringement on rights to marks refer to signs attached to goods, goods packaging, means of services, transaction documents, signs, advertising means, and other means of businesses that are identical or similar to the point of confusion over the protected marks.

2. The ground to assess elements of infringement on rights to marks is the scope of protection of marks, including mark samples and lists of goods and services determined in the certificates of mark registration, confirmation certificates of internationally registered marks protected in Vietnam, or excerpts from the National Industrial Property Register or determined via the assessment of evidence proving the famous marks according to Article 75 of the Law on Intellectual Property.

3. In order to determine if a suspicious sign is an element of infringement on rights to a mark, it is necessary to compare such a sign to the related mark while comparing the goods and services bearing that sign to the goods and services under the protection scope. An element of infringement may only be confirmed when the following requirements are met:

a) The suspicious sign is identical or similar to the point of confusion over the mark under the scope of protection. Specifically, a sign is considered identical to a protected mark if it has the same structure and presentation or similar to the point of confusion over a mark under the protection scope if there are several components completely identical to or similar to the point that they cannot be easily distinguished from each other in terms of structure, pronunciation, transcription, meanings, presentation, or colors regarding a visible sign and melody or tone regarding a sound sign and the use of the sign can potentially cause confusion over the goods and services bearing the mark for consumers;

b) Goods and services that bear the suspicious sign are identical or similar to the goods and services under the protection scope if they are identical or similar in terms of nature or functions and uses and have the same consumption channel or have connections with each other in terms of nature, functions, or implementation methods.

4. Regarding famous marks, suspicious signs are considered elements of infringement if:

a) The suspicious signs meet the requirements prescribed in Point a Clause 3 of this Article;

b) Goods and services bearing the suspicious signs meet the requirements prescribed in Point b Clause 3 of this Article, or the goods and services are not identical, similar, or related to goods and services bearing the famous marks, but they can potentially cause confusion for consumers over the goods origins and services or make a false impression on the relationship between the persons producing and trading such products and services with the owners of the famous marks.

Article 78. Elements of infringement on rights to geographical indications

1. Elements of infringement on rights to geographical indications displayed in the form of signs attached to goods, goods packaging, means of services, transaction documents, signs, advertising means, and other means of businesses that are identical or similar to the point of confusion with the protected geographical indications.

2. The ground to assess elements of infringement on rights to geographical indications is the scope of protection of geographical indications determined according to certificates of registration of geographical indications, international treaties that have contents of recognition and protection of geographical indications, or excerpts from the National Industrial Property Register.

3. In order to determine if a suspicious sign is an element of infringement on rights to a protected geographical indication, it is necessary to compare such a sign to the related geographical indication while comparing the product bearing that sign to the product with the protected geographical indication based on the following grounds:

a) The suspicious sign is identical or similar to the point of confusion over the protected geographical indication. Specifically, a sign is considered identical to a protected geographical indication if it has the same wording structure, including pronunciation and transcription of letters, meanings, or images and symbols under the scope of protection of the geographical indication. A sign is considered similar to the point of confusion over the protected geographical indication if it is similar in terms of wording structure, including pronunciation and transcription of letters, meanings, or images and symbols under the scope of protection of the geographical indication and misleads consumers that the product bearing the suspicious sign originates from a protected geographical area;

b) The product bearing the suspicious sign is identical or similar to the product bearing the protected geographical indication in terms of nature, functions, uses, and consumption channel;

c) Regarding wines and brandies, aside from the regulations prescribed in Point a and Point b of this Clause, signs that are identical with protected geographical indications, even if they are presented in the form of definition, transcription, or words indicating types, styles, forms, or equivalences used for products not originating from geographical areas with protected geographical indications are also considered elements of infringement on rights to geographical indications.

Article 79. Elements of infringement on rights to trade names

1. Elements of infringement on rights to trade names displayed in the form of commercial indications attached to goods, goods packaging, means of services, transaction documents, signs, advertising means, and other means of businesses that are identical or similar to the point of confusion with the protected trade names.

2. The ground to assess elements of infringement on rights to trade names is the scope of protection of trade names determined based on the evidence showing the legal use of such trade names provided by the trade name owners, which identifies the subjects of business, business facilities, business operations, business fields, and business areas and the process of using the trade names.

3. In order to determine if a suspicious sign is an element of infringement on rights to a trade name, it is necessary to compare such a sign to the protected trade name, the subject of the business, the business facility, and the business operation related to the suspicious sign, and the goods and services bearing such a sign to the goods and services of the protected trade name based on the following grounds:

a) The suspicious sign is identical or similar to the point of confusion over the protected trade name. Specifically, a sign is considered identical to a protected trade name if they are identical in terms of wording structure, including pronunciation and transcription of the trade name. A sign is considered similar to a protected trade name if they are similar in terms of structure, pronunciation, and transcription of the trade name, confusing the consumers over the subject of business, business facility, and business operation under the protected trade name;

b) Goods and services that bear the suspicious sign are considered identical or similar to goods and services bearing the protected trade name if they are identical or similar in terms of nature or functions and uses and have the same consumption channel, or have connections with each other in terms of nature, functions, or implementation methods.

Article 80. Elements of infringement on rights to plant varieties

1. Elements of infringement on rights to plant varieties considered to constitute acts of infringement are as follows:

a) Plant propagation materials, intact seedlings, harvested products, or any material that can potentially grow into the complete seedlings of protected plant varieties;

b) Names of plants or characters that are similar to the point of confusion over the display on goods, goods packaging, means of services, transaction documents, signs, advertising means, and other means of businesses or the names of the protected plant varieties;

c) Machinery, equipment, storage, preservation, transport vehicles, or other equipment serving the processing and storage of seeds, plant propagation materials, and harvested materials for making seeds of protected plant varieties.

2. The ground to determine elements of infringement on rights to plant varieties is the scope of unexpired plant variety protection titles.

Article 81. Grounds to determine nature and level of infringement on industrial property rights and rights to plant varieties

1. The nature of infringement prescribed in Clause 1 Article 199 of the Law on Intellectual Property is determined based on the following grounds:

a) Circumstances and motives for infringement: unintentional infringement, intentional infringement, infringement due to being controlled or dependent, first-time infringement, and repeated infringement;

b) Methods of infringement: independent infringement, organized infringement, self-perpetuated acts of infringement, and acts of bribing, deceiving, or forcing others to commit acts of infringement.

2. The level of infringement prescribed in Clause 1 Article 199 of the Law on Intellectual Property is determined based on the following grounds:

a) Territorial scope, time, volume, and scale of the infringement;

b) Impacts and consequences of the infringement.

Section 2. DAMAGE IDENTIFICATION

Article 82. Principles of identifying damage to industrial property rights and rights to plant varieties

1. Damage caused by infringement on industrial property rights and rights to plant varieties prescribed in Article 204 of the Law on Intellectual Property means the actual physical and spiritual loss caused by acts of infringement directly to the right holders.

2. Actual loss shall be identified if there are the following grounds:

a) Physical or spiritual benefits are real and belong to the aggrieved person;

b) The aggrieved person can potentially gain the benefits prescribed in Point a of this Clause;

c) There is a reduction or loss of benefits for the aggrieved person after the occurrence of the infringement compared to the potential gain of such benefits when the infringement does not occur, and such infringement is the main source that causes such reduction or loss.

3. The level of damage shall be determined in conformity with the elements of infringement on rights for subjects of industrial property rights and rights to plant varieties. The determination of damage levels shall be based on evidence of the damage provided by concerned parties, including the results of the request for damage identification and table of damage with elaboration on grounds to identify and calculate the damage.

Article 83. Loss of assets

1. Loss of assets shall be determined based on the level of deterioration or loss of value in money of the subject of industrial property rights or rights to plant varieties under protection.

2. The value in money of the subject of industrial property rights or rights to plant varieties prescribed in Clause 1 of this Article shall be determined by one or more of the following grounds:

a) Price for the transfer of the ownership or price for the transfer of rights to use the subject of industrial property rights or rights to plant varieties;

b) Value of business capital contribution by industrial property rights or rights to plant varieties;

b) Value of industrial property rights or rights to plant varieties in the total number of assets of the enterprise;

d) Value of investment in the creation and development of the subject of industrial property rights or rights to plant varieties, including costs of marketing, research, advertising, labor, taxes, and other costs.

Article 84. Spiritual loss

Damage to the honor, dignity, reputation, fame, and other spiritual losses caused to the author of inventions, industrial designs, layout designs, and plant varieties according to the Law on Intellectual Property refers to when the moral rights of the mentioned subjects are infringed on, making the author receive damage to the honor and dignity or decrease or loss of credibility (prestige), reputation, and trust due to misunderstanding.

Article 85. Decrease of incomes and profits

1. Incomes and profits prescribed in Point a Clause 1 Article 204 of the Law on Intellectual Property include:

a) Incomes and profits from direct use or utilization of subjects of industrial property rights or rights to plant varieties;

b) Incomes and profits from leases on subjects of industrial property rights or rights to plant varieties;

c) Incomes and profits from the transfer of rights to use subjects of industrial property rights or rights to plant varieties.

2. Decrease of incomes and benefits shall be determined following one or more of the following grounds:

a) Direct comparison of the actual incomes or profits before and after the occurrence of the violations corresponding with each type of income prescribed in Clause 1 of this Article;

b) Comparison of the output, quantity of actual products, goods, and services consumed or the supply of the mentioned subjects before and after the occurrence of the violations;

c) Comparison of the actual market sale prices of the products, goods, or services before and after the occurrence of the violations.

Article 86. Loss of business opportunities

1. Business opportunities prescribed in Point a Clause 1 Article 204 of the Law on Intellectual Property include:

a) The actual capacity for directly using or utilizing subjects of industrial property rights or rights to plant varieties in business;

b) The actual capacity for leasing subjects of industrial property rights or rights to plant varieties;

c) The actual capacity for transferring rights to use subjects of industrial property rights or rights to plant varieties or transferring subjects of industrial property rights or rights to plant varieties;

d) Loss of other business opportunities caused by acts of direct infringement.

2. Loss of business opportunities means the damage to the value in money of the income that is supposed to belong to the aggrieved person when performing the capacities prescribed in Clause 1 of this Clause if the related act of infringement does not occur.

Article 87. Reasonable expenses for damage prevention and remedy

Reasonable expenses for damage prevention and remedy prescribed in Point a Clause 1 Article 204 of the Law on Intellectual Property include the expenses for temporary detention, preservation, and storage of infringing goods, expenses for the implementation of temporary emergency measures, reasonable expenses for hiring lawyers, assessment services, and preventing and remedying acts of infringement, and expenses for notification and rectification on mass media concerning acts of infringement.

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.

Chapter III

HANDLING OF GOODS INFRINGING ON INDUSTRIAL PROPERTY RIGHTS AND RIGHTS TO PLANT VARIETIES

Article 95. Evaluating infringing goods

1. Regulations on infringing goods:

a) Infringing goods are components or details (hereinafter referred to as “parts”) of products that contain elements of infringement and may be put on the market as independent products;

b) In case the element of infringement cannot be separated into a part of a marketable independent product according to Point a of this Clause, the infringing goods shall be the whole product that contains such an element of infringement.

2. Values of infringing goods shall be determined by the infringement handling authority at the time the infringement occurs based on the following orders of priority:

a) Listed prices of infringing goods;

b) Actual sale prices of infringing goods;

c) Aggregate costs of infringing goods, if not yet circulated;

d) Purchase prices of infringing goods.

3. Values of infringing goods are determined by parts of the infringing product prescribed in Point a Clause 1 of this Article or by the total value of the infringing product according to Point b Clause 1 of this Article.

4. In case the application of the grounds prescribed in Clause 2 of this Article is not viable or there is a disagreement between the infringement handling authority and the equivalent financial authority on evaluating the infringing goods, the pricing shall be decided by the council for infringing goods evaluation.

The establishment, composition, and working principle of the council for infringing goods evaluation shall comply with civil and administrative violation handling laws.

Article 96. Handling infringing goods

1. Regarding counterfeit goods in terms of marks, geographical indications, and ingredients, materials, and equipment used for the production and trading of such goods, the infringement handling authority may:

a) Distribute or put them into use for non-commercial purposes according to Article 97 of this Decree;

b) Destroy them according to Article 98 of this Decree;

c) Force the goods owner, carriers, or hoarders to eliminate elements of infringement and bring the goods out of the territory of the Socialist Republic of Vietnam regarding goods in transit that are counterfeit in terms of marks, re-export the goods regarding imported goods that are counterfeit in terms of marks and imported ingredients, materials, and equipment used for the production and trading of counterfeit goods in terms of marks. In case of failure to eliminate elements of infringement from goods, ingredients, materials, and equipment used for the production and trading of the mentioned goods, measures prescribed in Clause 4 of this Article shall be appropriately applied.

Regarding imported goods and imported ingredients, materials, and equipment used for the production and trading of counterfeit goods in terms of geographical indications, depending on each specific case, the infringement handling authority shall force the elimination of elements of infringement and apply appropriate measures prescribed in Clause 4 of this Article.

2. Regarding goods infringing on industrial property rights or rights to plant varieties that are not counterfeit foods in terms of marks, geographical indications, and ingredients, materials, and equipment used for the production and trading of such goods, the infringement handling authority shall force the goods owner, carrier, or hoarder to eliminate elements of infringement from the goods and apply appropriate measures prescribed in Clause 4 of this Article.

Regarding imports that are goods infringing on industrial property rights or rights to plant varieties that are not counterfeit foods in terms of marks, geographical indications, and ingredients, materials, and equipment used for the production and trading of such goods, the infringement handling authority shall apply appropriate measures prescribed in Point c Clause 1 of this Article.

3. Ingredients, materials, and equipment that have a sole function to create or commercially utilize counterfeit goods in terms of marks, geographical indications, and goods infringing on industrial property rights or rights to plant varieties or are solely used for the mentioned purposes shall be considered ingredients, materials, and equipment used for the production and trading of counterfeit goods in terms of marks and geographical indications and goods infringing on industrial property rights or rights to plant varieties.

4. Depending on each specific case, the infringement handling authority shall decide to apply the measures prescribed in Point a and Point b Clause 1 of this Article or force organizations or individuals producing infringing goods to recall such goods that have been put into their distribution channel upon the request of right holders to apply the measures prescribed in Point a and Point b Clause 1 of this Article or other necessary measures. While deciding on the infringement handling, the infringement handling authority may consider requests from concerned parties.

Article 97. Forcing distribution or use for non-commercial purposes

1. The forced distribution or use for non-commercial purposes for counterfeit goods in terms of marks and geographical indications and goods infringing on industrial property rights or rights to plant varieties shall meet the following requirements:

a) Goods have use values that cannot harm human health, animals, plants, and the environment and are not cultural products with toxic content;

b) Elements of infringement have been eliminated from the goods;

c) The distribution or use is not aimed toward profit and does not unreasonably affect the normal utilization of rights of holders of industrial property rights and rights to plant varieties, prioritizing humanitarian, charitable, or social benefit purposes;

d) Persons receiving the distribution or taking charge of the use are not the potential customers of the holders of industrial property rights or rights to plant varieties.

2. The regulations prescribed in Clause 1 of this Article shall also apply to ingredients, materials, and equipment used for the production and trading of counterfeit goods in terms of marks and geographical indications and goods infringing on industrial property rights and rights to plant varieties.

Article 98. Forcing destruction

Measures to force the destruction of counterfeit goods in terms of marks and geographical indications, goods infringing on industrial property rights and rights to plant varieties, and ingredients, materials, and equipment used for the production and trading of such goods shall be applied in case of ineligibility for applying the measure to force the distribution or use for non-commercial purposes prescribed in Article 97 of this Decree.

Chapter IV

CONTROL OF EXPORTS AND IMPORTS CONCERNING INDUSTRIAL PROPERTY RIGHTS AND RIGHTS TO PLANT VARIETIES

Article 99. Rights to request control of exports and imports concerning industrial property rights and rights to plant varieties

Holders of industrial property rights and rights to plant varieties may apply for inspection and supervision in person or via legal representatives to detect imports and exports that have signs of infringement on industrial property rights or rights to plant varieties or apply for temporary suspension of customs procedures for imports and exports suspected to infringe on industrial property rights or rights to plant varieties.

Article 100. Competence to receive applications

Customs authorities are competent to receive applications for inspection or supervision or applications for suspension of customs procedures according to Clause 1 Article 75 of the Customs Law.

Article 101. Procedure for processing applications

1. Within 20 days after receiving the valid set of applications for inspection or supervision of imports or exports or within 2 working days after receiving the set of applications for suspension of customs procedures, the customs authority shall consider issuing a notification of application acceptance if the applicant has fulfilled the obligations prescribed in Points a, b, c Clause 1 and Clause 2 Article 217 of the Law on Intellectual Property. In case of refusal, the customs authority shall provide written answers and explanations for the applicant.

2. After accepting the application for inspection or supervision of imports or exports, the General Department of Vietnam Customs shall send notifications of the acceptance to the Customs Departments of provinces, cities, and the designated authority of the General Department of Vietnam Customs to implement the inspection or supervision. The Customs Departments of provinces, cities, and the designated authority of the General Department of Vietnam Customs shall, based on the notifications of the General Department of Vietnam Customs, look up data on the system to organize the implementation within the areas under their management.

3. Sub-Departments of Customs shall conduct the inspection or supervision to detect goods with signs of infringement or decide to suspend the customs procedures based on the request for suspension of customs procedures.

Article 102. Procedure for processing goods suspected of infringement

1. In case goods are detected to have signs of infringement, at the request of the holder of industrial property rights or rights to plant varieties or in order to perform the competence to impose administrative fines, the customs authority shall issue a decision to suspend customs procedures and notify the holder of industrial property rights or rights to plant varieties and the owner of the shipment owner of such a suspension of the shipment, specifying the names, addresses, fax numbers, and phone numbers of concerned parties and the reason and time of the suspension.

2. The customs authority shall continue to perform customs procedures for the shipment subject to suspension according to Clause 3 Article 218 of the Law on Intellectual Property in the following cases:

a) The decision to suspend the customs procedures is suspended or revoked according to a decision on the settlement of complaint or denunciation;

b) The applicant for the suspension of customs procedures withdraws the application.

Article 103. Competence and procedure for proactively suspending customs procedures

1. During the inspection, supervision, and control, if there are clear grounds to suspect imports or exports are counterfeit goods in terms of marks or geographical indications, the Sub-Department of Customs shall proactively issue a decision to suspend the customs procedures for such goods.

2. The Sub-Department of Customs shall immediately send a notification of the suspension to the holder of rights to marks or geographical indications if there is contact information and the importer or the exporter.

3. The time of suspension of customs procedures is 10 days from the date the Sub-Department of Customs notifies the right holder according to Clause 2 of this Article.

4. During the suspension of customs procedures, the Sub-Department of Customs that decides on the suspension shall:

a) Request the importer or exporter or the holder of rights to the marks or geographical indications (in case of having contact information) to provide documents related to the goods (catalogs, assessment conclusions, foreign documents, conclusions of the settlement of similar cases, etc.);

b) Take samples or permit the concerned organization or individual to take the sample for assessment, additional assessment, or re-assessment at a professional organization of customs or other assessment organizations according to regulations (if necessary);

c) Cooperate and consult with industrial property authorities upon disputes or denunciations of the right holder, protection capacity, protection scope of rights to marks or geographical indications, and competence to handle violations;

d) Submit reports to the Customs Department of the province or city and the General Department of Vietnam Customs for directives on the timely settlement of complicated cases.

5. After the suspension period of customs procedures:

a) In case the customs authority determines that the goods subject to the suspension are counterfeit goods in terms of marks or geographical indications and the violation is within its jurisdiction, the customs authority shall impose an administrative fine for the act of infringing on rights to marks or geographical indications and counterfeit goods in terms of marks or geographical indications as prescribed by laws. In case it is determined that the violation is not within the jurisdiction of the customs authority, it shall hand over the case to other intellectual property protection right authorities for handling;

b) If the applicant files a civil lawsuit, the customs authority shall comply with the suggestions of the court;

c) In case of receiving a document from the industrial property right authority notifying the dispute or complaint about the right holder, protection capacity, or scope of protection of rights to marks or geographical indications, the customs authority shall continue to carry out the customs procedures for the shipment, except for the case where the customs authority already has a decision to accept the case under procedures for administrative violation handling;

d) If it is determined that the violation has criminal signs according to the Criminal Code, the customs authority shall hand over the case to a competent authority for investigation and prosecution as prescribed by laws;

dd) If the customs authority decides that the goods subject to suspension are not counterfeit goods in terms of marks or geographical indications, it shall continue to carry out the customs procedures for the shipment and send notifications to concerned parties.

6. In case the proactive suspension of customs procedures is improper, causing damage to the owner of the goods, the Sub-Department of Customs shall compensate for the damage and pay every arising cost as per regulation.

Article 104. Procedures for controlling imports and exports concerning industrial property rights and rights to plant varieties

Procedures for controlling imports and exports concerning industrial property rights and rights to plant varieties shall comply with this Decree and relevant customs laws.

Chapter V

ASSESSMENT OF INDUSTRIAL PROPERTY RIGHTS AND RIGHTS TO PLANT VARIETIES

Section 1. ASSESSORS AND ASSESSMENT ORGANIZATIONS OF INDUSTRIAL PROPERTY RIGHTS AND RIGHTS TO PLANT VARIETIES

Article 105. Forms of assessment activities of assessors of industrial property rights and rights to plant varieties

1. An assessor of industrial property rights or rights to plant varieties may operate under an assessment organization of industrial property rights or rights to plant varieties or conduct independent operations.

2. Forms of activities of assessors shall be recorded to the list of assessors of industrial property rights and list of assessors of rights to plant varieties prescribed in Article 109 and Article 112 of this Decree.

3. If assessors operate on behalf of assessment organizations of industrial property rights or rights to plant varieties, the information on such assessors shall be recorded to the list of assessors under organizations following the procedure for issuing certificates of assessment organizations.

Article 106. Rights and obligations of assessors of industrial property rights and rights to plant varieties

1. Assessors of industrial property rights and rights to plant varieties may:

a) Refuse the assessment in case the relevant documents are insufficient, hold no value to draw an assessment conclusion, or are not subject to the assessment specialty prescribed in the assessor's card;

b) Refuse to receive the assessment sample in case there is a risk of harm to health or the sample is too bulky to be stored;

c) Use the assessment result, the professional conclusion, or suggestions from experts for the assessment;

d) Request agencies, organizations, or individuals to provide information and documents concerning the subject of assessment for the assessment unless otherwise provided by law (regarding assessors of industrial property rights or rights to plant varieties operating independently);

dd) Exercise other rights as prescribed by laws.

2. Assessors of industrial property rights and rights to plant varieties shall:

a) Operate in compliance with the assessment specialty prescribed in the assessor’s card;

b) Perform the assessment in compliance with Clause 4 Article 201 of the Law on Intellectual Property;

c) Prepare assessment documents and explain the assessment conclusion upon request from the petitioner for the assessment, organizations or individuals with related rights and benefits, or competent authorities;

d) Preserve and store documents and samples concerning the assessment case as prescribed by laws;

dd) Independently draw the assessment conclusion and take responsibility for such a conclusion. In case of intentionally drawing a false conclusion that damages the concerned organizations or individuals, compensate for the damage;

e) Refuse the assessment in case of having rights or benefits related to the subject of assessment, the assessment case, or other reasons affecting the objectivity of the assessment conclusion or in cases where the refusal is prescribed by other laws;

g) Ensure the confidentiality of information and documents at the request of authorities, organizations, or individuals requesting the assessment and compensate for damage in case of disclosure of confidential information causing damage to the concerned authorities, organizations, or individuals;

h) Take legal liability for acts of taking advantage of the role of assessor and the assessment for profiteering or intentionally drawing false assessment conclusions;

i) Inform and report on the assessment activities every 6 months and every year in writing to state management authorities of industrial property rights and rights to plant varieties;

k) Fulfill other obligations as prescribed by laws.

Article 107. Rights and obligations of assessment organizations of industrial property rights and rights to plant varieties

1. Assessment organizations of industrial property rights and rights to plant varieties may:

a) Hire assessors of industrial property rights or rights to plant varieties to assess by cases;

b) Request agencies, organizations, or individuals to provide information and documents concerning the subject of assessment for the assessment unless otherwise provided by law;

c) Exercise other rights as prescribed by laws.

2. Assessment organizations of industrial property rights and rights to plant varieties shall:

a) Operate in compliance with the assessment field prescribed in the certificate of assessment organization;

b) Perform the assessment in compliance with Clause 4 Article 201 of the Law on Intellectual Property;

c) Preserve and store documents and samples concerning the assessment case as prescribed by laws;

d) Ensure the confidentiality of information and documents at the request of authorities, organizations, or individuals requesting the assessment and compensate for damage in case of disclosure of confidential information causing damage to the concerned authorities, organizations, or individuals;

dd) Refuse the assessment in cases it is prescribed by other laws;

e) Take legal liability for acts of taking advantage of the role of assessor and the assessment for profiteering or intentionally drawing false assessment conclusions;

g) Inform and report on the assessment activities every 06 months and every year in writing to state management authorities of industrial property rights and rights to plant varieties;

h) Fulfill other obligations as prescribed by laws.

Section 2. CONTENT OF STATE MANAGEMENT OF INDUSTRIAL PROPERTY ASSESSMENT

Article 108. Professional inspection of industrial property assessment

1. The professional inspection of industrial property assessment shall be performed to assess the capacity for using knowledge and specialty to assess and conclude matters concerning industrial property rights.

2. The organization of the professional inspection of industrial property assessment shall be performed as follows:

a) Industrial property right authority is the authority competent to organize the professional inspection of industrial property assessment;

b) The industrial property right authority shall disclose notifications on its web portal, specifying the conditions for participating in the inspection, application submission procedures, inspection content, and expected time and location of the inspection;

c) The inspection shall be organized within 3 months from the date when at least 5 participants have their applications approved according to Clause 4 of this Article;

d) The results of the inspection shall be notified to the participants by the industrial property right authority. Participants may request the industrial property right authority to re-examine the results of the inspection;

dd) The results of the inspection shall have a validity of 5 years for requesting the industrial property right authority to issue industrial property assessor’s cards.

3. The council for professional inspection of industrial property assessment established by the industrial property right authority shall organize the professional inspection of industrial property assessment according to the regulation on professional inspection of industrial property assessment issued by the industrial property right authority.

4. Registration for participation in the professional inspection of industrial property assessment shall be performed as follows:

a) Individuals meeting the following requirements shall be eligible for registering for participation in the inspection according to this Article:

a1) Being Vietnamese citizens with sufficient legal capacity;

a2) Residing in Vietnam;

a3) Having good moral qualities;

a4) Having at least bachelor's degrees with specialties suitable for the field registered for inspection;

a5) Having professionally worked in the field registered for inspection for at least 5 years.

b) An application for participation in the professional inspection of industrial property assessment submitted to the industrial property right authority shall include a set of the following documents:

b1) Statement on registration for participation in the professional inspection of industrial property assessment, following Form No. 01 Appendix VI of this Decree;

b2) Copies of the bachelor’s degree or post-university degree (the original shall be presented for comparison, excluding cases of certified copies);
b3) Copies of the recruitment decision, labor contract, or other documents proving the actual professional operations (the original shall be presented for comparison, excluding cases of certified copies);

b4) 2 photos sized 3 x 4 (cm);

b5) Copies of payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the industrial property right authority).

c) Within 20 days after receiving the application, the industrial property right authority shall process the application according to the following regulations:

c1) If the application is valid, the industrial property right authority shall issue a notification of application acceptance, stating whether the inspection plan has been set or has not been set due to an insufficient number of participants according to Clause 2 of this Article;

c2) If the application has deficiencies, the industrial property right authority shall issue a notification of the intended refusal of the acceptance of the application, specifying the reasons and imposing a 1-month time limit from the notification date for the applicant to amend the deficiencies or object to the refusal. After the imposed time limit, if the applicant fails to amend deficiencies or provides inadequate amendments, does not have any objection or provides inadequate objections, the industrial property right authority shall issue a decision to refuse the acceptance of the application, specifying the reasons.

Article 109. Issuing, re-issuing, and revoking industrial property assessor’s cards

1. The industrial property right authority is competent to issue, re-issue, and revoke industrial property assessor's cards and establish and disclose the list of industrial property assessors according to the procedures prescribed in Clauses 2, 3, 4, and 5 of this Article.

2. The issuance of industrial property assessor’s cards shall be performed as follows:

a) The industrial property authority shall issue industrial property assessor’s cards to persons meeting the requirements prescribed in Clause 3 Article 201 of the Law on Intellectual Property if such persons apply for the issuance and pay the prescribed fees. Requirements for eligibility for issuance of industrial property assessor’s cards prescribed in Clause 3 Article 201 of the Law on Intellectual Property shall be understood as follows:

a1) “Residing in Vietnam” shall be understood as having a permanent residence in Vietnam according to residence laws;

a2) “Having good moral qualities” shall be understood as not being subject to any administrative fine for violations of industrial property laws, not committing acts of violating professional ethics, not being subject to criminal prosecution, or having unspent convictions;

a3) “Having at least bachelor's degrees with specialties suitable for the field requested for issuance of assessor’s cards” shall be understood as having bachelor’s degrees or post-university degrees in natural science or technical science regarding the specialty of assessment of inventions and layout designs; having any other bachelor’s degrees or post-university degrees regarding other assessment specialties;

a4) “Having professionally worked in the field requested for issuance of assessor’s cards for at least 5 years” shall be understood as having directly settled disputes or denunciations or engaged in the inspection, examination, legislation, or legal consulting regarding industrial property, or scientific research with the title of researcher, industrial property teaching with the title of lecturer for at least 5 years or having directly engaged in the explanation and guidance on laws, developed regulations, directly prepared or approved appraisal results of contents of applications for invention registration (including utility solutions) or applications for registration of industrial designs, marks, or geographical indications (including the names and origins of goods) at national or international industrial property authority for at least 5 years, or having engaged in the practice of industrial property representative services for at least 5 years.

b) An application for the issuance of an industrial property assessor’s card submitted to the industrial property right authority shall include a set of the following documents:

b1) Statement on request for the issuance of the assessor's card, following Form No. 02 Appendix VI of this Decree;

b2) Copies of citizen ID (the original shall be presented for comparison, excluding cases of certified copies), except for the case where the statement on request for the issuance of the industrial property assessor's card already has information on the citizen ID number;

b3) 2 photos sized 3 x 4 (cm);

b4) Copies of payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the industrial property right authority).

c) Within 1 month after receiving the application, the industrial property right authority shall assess the application according to the following regulations:

c1) If the application is valid, the industrial property right authority shall issue a decision on the issuance of the assessor's card, specifying the name, date of birth, permanent address, citizen ID number, assessor’s card number, and assessment specialty of the person with the issued card; record the issuance to the National Industrial Property Assessment Register and disclose the information on the Industrial Property Official Gazette and its web portal within 2 months from the decision issuance date;

c2) If the application is invalid, the industrial property right authority shall issue a notification of the intended refusal of the acceptance of the application, specifying the reasons and imposing a 1-month time limit from the notification date for the applicant to amend the deficiencies or object to the refusal. After the imposed time limit, if the applicant fails to amend deficiencies or provides inadequate amendments, does not have any objection or provides inadequate objections, the industrial property right authority shall issue a decision to refuse the issuance of the assessor's card, specifying the reasons.

c3) The assessor’s card shall be made following Form No. 04 Appendix VI of this Decree.

3. The re-issuance of industrial property assessor’s cards shall be performed as follows:

a) In the following cases, the industrial property right authority shall decide to re-issue industrial property assessor's cards if the assessors submit requests and pay the fees and charges according to regulations:

a1) The industrial property assessor’s card is lost, defective, or damaged (torn, dirty, faded, etc.) to the point of being unusable;

a2) The information in the industrial property assessor’s card prescribed in Point c1 Clause 2 of this Article has been changed.

b) The assessor shall request the industrial property right authority to re-issue the industrial property assessor’s card for the recording of changes prescribed in Point a2 of this Clause;

c) An application for the re-issuance of an industrial property assessor’s card submitted to the industrial property right authority shall include a set of the following documents:

c1) Statement on request for the re-issuance of the assessor's card, following Form No. 03 Appendix VI of this Decree;

c2) Copies of citizen ID (the original shall be presented for comparison, excluding cases of certified copies), except for the case where the statement on request for the re-issuance of the assessor’s card already has information on the citizen ID number, regarding the case prescribed in Point a2 of this Clause;

c3) 2 photos sized 3 x 4 (cm);

c4) Copies of payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the industrial property right authority).

d) The processing of the application for the re-issuance of the industrial property assessor’s card shall be performed as follows:

d1) Within 20 days from the receipt date of the application for the re-issuance of the industrial property assessor’s card, the industrial property right authority shall assess the application following the procedure similar to the procedure for issuing the industrial property assessor’s card prescribed in Point c Clause 2 of this Article.

d2) If the industrial property assessor’s card is defective due to an error of the industrial property right authority, the mentioned authority shall re-issue the industrial property assessor’s card within 5 working days from the date of receipt of the request of the person with the issued card without charging any fee.

4. The revocation of an industrial property assessor’s card shall be performed as follows:

a) An industrial property assessor’s card shall be revoked in the following cases:

a1) There is evidence confirming that the assessor's card has been issued contrary to laws;

a2) The person with the issued assessor’s card no longer meets the requirements prescribed in Clause 3 Article 201 of the Law on Intellectual Property;

a3) The person with the issued assessor's card no longer engages in the assessment operations;

a4) The person with the issued assessor’s card is subject to the disciplinary revocation of the assessor’s card under a decision of the competent authority.

b) The industrial property right authority proactively or upon a request of an organization or individual revokes the assessor’s card if there are grounds confirming that the person with the issued card falls into one of the cases prescribed in Point a of this Clause;

c) An application for the revocation of an industrial property assessor’s card submitted to the industrial property right authority shall include a set of the following documents:

a1) Application for the revocation of the industrial property assessor’s card;

c2) Evidence backing up the grounds to request for the revocation of the industrial property assessor’s card.

d) The procedure for revoking the industrial property assessor’s card shall be performed as follows:

d1) If an organization or individual requests the revocation of the industrial property assessor’s card according to Point c of this Clause, within 1 month from the date of receipt of the request, the industrial property right authority shall provide a written notification of such a request for the person with the issued assessor's card and impose a 1-month time limit from the notification date for him/her to provide any suggestion. The industrial property right authority shall, based on the suggestions of concerned parties, issue a decision to revoke the industrial property assessor’s card or refuse the revocation of the industrial property assessor’s card and send it to the concerned parties;

d2) If there are grounds confirming that the person with the issued industrial property assessor's card no longer satisfies the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property, the industrial property right authority shall issue a written notification of the intended revocation of the industrial property assessor’s card to the person with the issued industrial property assessor's card and impose a 1-month time limit from the notification date for him/her to provide any suggestion. The industrial property right authority shall, based on the suggestions of the person with the issued industrial property assessor’s card, issue a decision to revoke the industrial property assessor’s card to him/her or provide a notification of not revoking the industrial property assessor’s card for him/her;

d3) In case of a decision to revoke the industrial property assessor’s card of a competent authority, within 1 month from the receipt date of the mentioned decision, the industrial property right authority shall issue a decision to revoke the industrial property assessor's card;

d4) The industrial property right authority shall record the decision on the revocation of the industrial property assessor's card to the National Industrial Property Assessment Register and disclose it on the Industrial Property Official Gazette and its web portal within 2 months from the decision issuance date.

5. The preparation and disclosure of the list of industrial property assessors shall be performed as follows:

a) The industrial property right authority shall prepare the list of industrial property assessors, including the information recorded according to decisions on issuance, re-issuance, and revocation of industrial property assessor's card and disclose or update it on its web portal annually;

b) The industrial property right authority shall notify the local industrial property right authority of information on changes concerning assessor's cards of assessors working for the corresponding local industrial property assessment organizations to serve the issuance, re-issuance, or revocation of certificates of local assessment organizations within 2 months from the decision issuance date.

Article 110. Issuing, re-issuing, and revoking certificates of industrial property assessment organizations

1. Competence in issuing, re-issuing, and revoking certificates of industrial property assessment organizations is as follows:

a) Industrial property right authorities are competent to issue, re-issue, and revoke certificates of industrial property assessment organizations for public service providers that are scientific and technological organizations registering for scientific and technological operations at the Ministry of Science and Technology of Vietnam according to Clauses 2, 3, 4, and 5 of this Article.

b) Local industrial property right authorities are competent to issue, re-issue, and revoke certificates of industrial property assessment organizations for organizations prescribed in Clause 2 Article 201 of the Law on Intellectual Property registering for business and operations at local competent authorities according to Clauses 2, 3, 4, and 5 of this Article.

2. The issuance of certificates of industrial property assessment organizations shall be performed as follows:

a) Local industrial property right authorities and industrial property right authorities shall issue certificates of industrial property assessment organizations to organizations meeting the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property if such organizations apply for the issuance and pay the prescribed fees.

b) An application for the issuance of a certificate of industrial property assessment organization submitted to the industrial property right authority or the local industrial property right authority shall include a set of the following documents:

b1) Statement on the request for the issuance of the certificate of industrial property assessment organization following Form No. 05 Appendix VI of this Decree;

b2) Copies of the recruitment decision or labor contract between the organization and its industrial property assessor (the original shall be presented for comparison, excluding cases of certified copies);

b3) Copies of payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the authority competent to settle this procedure).

c) Within 1 month after receiving the application, the industrial property right authority or the local industrial property right authority shall assess the application according to the following regulations:

c1) If the application is valid, the industrial property right authority or the local industrial property right authority shall issue a decision on the issuance of the certificate of assessment organization, specifying the full name, business name, address, and code of the organization and its assessment specialty corresponding to the assessment specialty of its assessors and the list of industrial property assessors that are its members; record the issuance to the National Industrial Property Assessment Register and disclose the information on the Industrial Property Official Gazette and its web portal within 2 months from the decision issuance date;

c2) If the application has deficiencies, the industrial property right authority or the local industrial property right authority shall issue a notification of the intended refusal of the acceptance of the application, specifying the reasons and imposing a 1-month time limit from the notification date for the applicant to amend the deficiencies or object to the refusal. After the imposed time limit, if the applicant fails to amend deficiencies or provides inadequate amendments, does not have any objection, or provides inadequate objections, the industrial property right authority or the local industrial property right authority shall issue a decision to refuse the issuance of the certificate of industrial property assessment organization, specifying the reasons.

c3) The certificate of industrial property assessment organization shall be made following Form No. 07 Appendix VI of this Decree.

3. The re-issuance of certificates of industrial property assessment organizations shall be performed as follows:

a) In the following cases, the industrial property right authority or the local industrial property right authority shall decide to re-issue certificates of industrial property assessment organizations if the organizations submit requests and pay the fees and charges according to regulations:

a1) The certificate of industrial property assessment organization is lost, defective, or damaged (torn, dirty, faded, etc.) to the point of being unusable;

a2) The information in the certificate of industrial property assessment organization prescribed in Point c1 Clause 2 of this Article has been changed.

b) The industrial property assessment organization shall perform the procedure for requesting the authority that has issued the certificate of industrial property assessment organization to re-issue the certificate for the recording of changes prescribed in Point c1 Clause 2 of this Article;

c) An application for the re-issuance of a certificate of industrial property assessment organization submitted to the industrial property right authority or the local industrial property right authority shall include a set of the following documents:

c1) Statement on the request for the re-issuance of the certificate of industrial property assessment organization following Form No. 06 Appendix VI of this Decree;

c2) Copies of the amended certificate of business registration or amended certificate of operation registration of the industrial property assessment organization in the case of changing the information on the organization (the original shall be presented for comparison, excluding cases of certified copies), excluding the case where the enterprise identification number is declared in the statement on request for the re-issuance of the certificate of industrial property assessment organization;

c3) Copies of the recruitment decision, labor contract, or decision on termination of the labor contract between the organization and its industrial property assessor in case of changes to the industrial property assessor (the original shall be presented for comparison, excluding cases of certified copies);

c4) Copies of payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the authority competent to settle this procedure).

d) The processing of the application for the re-issuance of the certificate of industrial property assessment organization shall be performed as follows:

d1) Within 20 days after receiving the application for the re-issuance of the certificate of industrial property assessment organization, the industrial property right authority or the local industrial property right authority shall assess the application following a procedure similar to the procedure for issuing the certificate of industrial property assessment organization prescribed in Point c Clause 2 of this Article;

d2) If the certificate industrial property assessment organization is defective due to an error of the industrial property right authority or the local industrial property right authority, the mentioned authority shall re-issue the certificate within 5 working days from the date of receipt of the request of the industrial property assessment organization without charging any fee.

4. The revocation of certificates of industrial property assessment organizations shall be performed as follows:

a) A certificate of industrial property assessment organization shall be revoked in the following cases:

a1) There is evidence confirming that the certificate of industrial property assessment organization has been issued contrary to laws;

a2) The organization no longer meets the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property;

a3) The industrial property assessment organization terminates its assessment operations;

a4) There is evidence confirming that the industrial property assessment organization violates the laws and is subject to a revocation of the certificate of industrial property assessment organization requested by the competent authority.

b) The industrial property right authority or the local industrial property right authority shall proactively or upon a request of an organization or individual revoke the certificate of industrial property assessment organization if there are grounds confirming that the concerned industrial property assessment organization falls into one of the cases prescribed in Point a of this Clause;

c) An application for the revocation of a certificate of industrial property assessment organization submitted to the authority that issued such certificate shall include a set of the following documents:

c1) Application for the revocation of the certificate of industrial property assessment organization;

c2) Evidence backing up the grounds to request for the revocation of the certificate of industrial property assessment organization;

d) The procedure for revoking the certificate of industrial property assessment organization shall be performed as follows:

d1) If an organization or individual requests the revocation of the certificate of industrial property assessment organization according to Point c of this Clause, within 1 month from the date of receipt of the request, the certificate issuance authority shall provide a written notification of such a request for the organization with the issued certificate of industrial property assessment organization and impose a 1-month time limit from the notification date for the organization to provide any suggestion. The certificate issuance authority shall, based on the suggestions of concerned parties, issue a decision to revoke the certificate of industrial property assessment organization or refuse the revocation of the certificate of industrial property assessment organization and send it to the concerned parties;

d2) If there are grounds confirming that the organization with the issued certificate of industrial property assessment organization no longer satisfies the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property, the certificate issuance authority shall issue a written notification of the intended revocation of the certificate of industrial property assessment organization to the mentioned organization and impose a 1-month time limit from the notification date for it to provide any suggestion. The certificate issuance authority shall, based on the suggestions of the organization with the issued certificate, issue a decision to revoke the certificate or a notification of not revoking the certificate to the organization;

d3) In case of a decision to revoke the certificate of industrial property assessment organization of a competent authority, within 1 month from the receipt date of the mentioned decision, the certificate issuance authority shall issue a decision to revoke the certificate;

d4) The industrial property right authority shall record the decision on the revocation of the certificate of industrial property assessment organization to the National Industrial Property Assessment Register and disclose it on the Industrial Property Official Gazette and its web portal within 2 months from the decision issuance date.

5. The preparation and disclosure of the list of industrial property assessment organizations shall be performed as follows:

a) The industrial property right authority shall prepare the list of industrial property assessment organizations, including the information recorded according to decisions on issuance, re-issuance, and revocation of certificates of industrial property assessment organizations and disclose or update it on its web portal annually;

b) The local industrial property right authority shall notify the industrial property right authority of information on the issuance, re-issuance, and revocation of certificates of industrial property assessment organizations within 1 month from the decision issuance date to serve the preparation of the list of industrial property assessment organizations prescribed in this Clause.

Section 3. CONTENT OF STATE MANAGEMENT OF ASSESSMENT OF RIGHTS TO PLANT VARIETIES

Article 111. Professional inspection of the assessment or rights to plant varieties

1. The professional inspection of the assessment of rights to plant varieties shall be performed to assess the capacity for using knowledge and specialty to assess and conclude matters concerning rights to plant varieties.

2. The organization of the professional inspection of the assessment of rights to plant varieties shall be performed as follows:

a) Plant variety right authority is the authority competent to organize the professional inspection of the assessment of rights to plant varieties;

b) The plant variety right authority shall disclose notifications on its information portal, specifying the conditions for participating in the inspection, application submission procedures, inspection content, and expected time and location of the inspection;

c) The inspection shall be organized within 3 months from the date when at least 5 participants have their applications approved according to Clause 3 of this Article;

d) The results of the inspection shall be notified to the participants by the plant variety right authority. Participants may request the plant variety right authority to re-examine the results of the inspection;

dd) The results of the inspection shall have a validity of 5 years for requesting the People’s Committee of the province or centrally affiliated city to issue plant variety right assessor’s cards.

3. The council for professional inspection of assessment of rights to plant varieties established by the plant variety right authority shall organize the professional inspection of assessment of rights to plant varieties according to the regulation on professional inspection of assessment of rights to plant varieties issued by the plant variety right authority.

Registration for participation in the professional inspection of assessment of rights to plant varieties shall be performed as follows:

a) Individuals meeting the following requirements shall be eligible for registering for participation in the inspection according to this Article:

a1) Being Vietnamese citizens with sufficient legal capacity;

a2) Residing in Vietnam;

a3) Having good moral qualities;

a4) Having at least bachelor's degrees with majors suitable for the field registered for inspection;

a5) Having professionally worked in the field registered for inspection for at least 5 years.

b) An application for participation in the professional inspection of assessment of rights to plant varieties submitted to the plant variety right authority shall include a set of the following documents:

b1) Statement on registration for participation in the professional inspection of assessment of rights to plant varieties, following Form No. 08 Appendix VI of this Decree;

b2) Certified copies of the bachelor’s degree or any post-university degree;

b3) Certified copies of the recruitment decision, labor contract, or other documents proving the actual professional operations;

b4) 2 photos sized 3 x 4 (cm);

b5) Payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the authority competent to settle this procedure).

c) Within 15 days after receiving the application, the plant variety right authority shall process the application according to the following regulations:

c1) If the application is valid, the plant variety right authority shall issue a notification of application acceptance, stating whether the inspection plan has been set or has not been set due to an insufficient number of participants according to Clause 2 of this Article;

c2) If the application has deficiencies, the plant variety right authority shall issue a notification of the intended refusal of the acceptance of the application, specifying the reasons and imposing a 1-month time limit from the notification date for the applicant to amend the deficiencies or object to the refusal. After the imposed time limit, if the applicant fails to amend deficiencies or provides inadequate amendments, does not have any objection or provides inadequate objections, the plant variety right authority shall issue a decision to refuse the acceptance of the application, specifying the reasons.

Article 112. Issuing, re-issuing, and revoking plant variety right assessor's cards

1. People's Committees of provinces and centrally affiliated cities are competent to issue, re-issue, and revoke plant variety right assessor's cards according to the procedures prescribed in Clauses 2, 3, and 4 of this Article.

2. The issuance of plant variety right assessor’s cards shall be performed as follows:

a) People’s Committees of the provinces or centrally affiliated cities shall issue plant variety right assessor’s cards to persons meeting the requirements prescribed in Clause 3 Article 201 of the Law on Intellectual Property if such persons apply for the issuance and pay the prescribed fees. Requirements for eligibility for issuance of plant variety right assessor’s cards prescribed in Clause 3 Article 201 of the Law on Intellectual Property shall be understood as follows:

a1) “Residing in Vietnam” shall be understood as having a permanent residence in Vietnam according to residence laws;

a2) “Having good moral qualities” shall be understood as not being subject to any administrative fine for violations of plant variety right laws, not committing acts of violating professional ethics, not being subject to criminal prosecution, or having unspent convictions;

a3) “Having at least bachelor's degrees with specialties suitable for the field requested for issuance of assessor’s cards” shall be understood as having bachelor’s degrees or post-university degrees in horticulture, agronomy, plant science, or any major concerning plant varieties;

a4) “Having professionally worked in the field requested for issuance of assessor’s cards for at least 5 years” shall be understood as having directly engaged in the compilation of drafts and guidelines on the implementation of legislative documents on plant varieties, settlement of disputes, complaints, denunciations, and inspections of plant varieties at plant variety right authorities, plant variety study and teaching at research or training organizations established and operated legally, or counseling about plant variety protection laws on behalf of representatives of rights to plant varieties.

b) An application for the issuance of a plant variety right assessor's card shall include a set of the following documents:

b1) Statement on request for the issuance of the assessor's card, following Form No. 09 Appendix VI of this Decree;

b2) Original or certified copies of the qualification certificate of professional inspection of assessment of rights to plant varieties;

b3) Copies of the bachelor's degree or post-university degree in horticulture, agronomy, or any major concerning plant varieties;

b4) Documents proving that the applicant has directly engaged in the specialty concerning plant varieties for at least 5 years with confirmation of a competent authority;

b5) 2 photos sized 3 x 4 (cm);

b6) Payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the authority competent to settle this procedure);

c) Within 1 month from the date of receipt of the application, the People’s Committee of the province or centrally affiliated city shall assess the application according to the following regulations:

c1) If the application is valid, the People’s Committee of the province or centrally affiliated city shall issue a decision to issue the assessor’s card, specifying the name, permanent address, citizen ID number, and assessment specialty of the person with the issued card;

c2) If the application is invalid, the People’s Committee of the province or centrally affiliated city shall issue a notification of the intended refusal of the acceptance of the application, specifying the reasons and imposing a 1-month time limit from the notification date for the applicant to amend the deficiencies or object to the refusal. After the imposed time limit, if the applicant fails to amend deficiencies or provides inadequate amendments, does not have any objection or provides inadequate objections, the People’s Committee of the province or centrally affiliated city shall issue a decision to refuse the issuance of the assessor's card, specifying the reasons.

c3) The plant variety right assessor’s card shall be made following Form No. 10 Appendix VI of this Decree.

3. The re-issuance of plant variety right assessor’s cards shall be performed as follows:

a) In the following cases, the People’s Committee of the province or centrally affiliated city shall issue a decision to re-issue the plant variety right assessor's card if the assessor applies for the re-issuance and pays the prescribed fees:

a1) The plant variety right assessor’s card is lost, defective, or damaged (torn, dirty, faded, etc.) to the point of being unusable;

a2) The information in the plant variety right assessor’s card prescribed in Point c1 Clause 2 of this Article has been changed.

b) The assessor shall request the People’s Committee of the province or centrally affiliated city to re-issue the plant variety right assessor's card for the recording of changes prescribed in Point a2 of this Clause.

c) An application for the re-issuance of a plant variety right assessor’s card submitted to the People’s Committee of the province or centrally affiliated city shall include a set of the following documents:

c1) Statement on request for the re-issuance of the assessor's card, following Form No. 09 Appendix VI of this Decree;

c2) 2 photos sized 3 x 4 (cm);

c3) Payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the authority competent to settle this procedure).

d) The processing of the application for the re-issuance of the plant variety right assessor’s card shall be performed as follows:

d1) Within 15 days after receiving the application for the re-issuance of the plant variety assessor’s card, the People’s Committee of the province or centrally affiliated city shall assess the application following the procedure similar to the procedure for issuing the plant variety right assessor's card prescribed in Point c Clause 2 of this Article;

d2) If the plant variety right assessor's card is defective due to an error of the People’s Committee of the province or centrally affiliated city, the mentioned authority shall re-issue the plant variety right assessor’s card within 5 working days from the date of receipt of the request of the person with the issued card without charging any fee.

4. The revocation of plant variety right assessor’s cards shall be performed as follows:

a) A plant variety right assessor’s card shall be revoked in the following cases:

a1) There is evidence confirming that the assessor's card has been issued contrary to laws;

a2) The person with the issued assessor’s card no longer meets the requirements prescribed in Clause 3 Article 201 of the Law on Intellectual Property;

a3) The person with the issued assessor's card no longer engages in the assessment operations;

a4) The person with the issued assessor’s card is subject to the disciplinary revocation of the assessor’s card under a decision of the competent authority.

b) The People’s Committee of the province or centrally affiliated city proactively or upon a request of an organization or individual revokes the assessor’s card if there are grounds confirming that the person with the issued card falls into one of the cases prescribed in Point a of this Clause;

c) An application for the revocation of a plant variety right assessor's card shall include a set of the following documents:

c1) Application for the revocation of the plant variety right assessor’s card;

c2) Evidence backing up the grounds to request the revocation of the plant variety right assessor’s card.

d) The procedure for revoking the plant variety right assessor’s card is as follows:

d1) If an organization or individual requests the revocation of the plant variety right assessor’s card according to Point c of this Clause, within 1 month from the date of receipt of the request, the People’s Committee of the province or centrally affiliated city shall provide a written notification of such a request for the person with the issued assessor's card and impose a 1-month time limit from the notification date for the him/her to provide any suggestion. The People’s Committee of the province or centrally affiliated city shall, based on the suggestions of the concerned parties, issue a decision to revoke the plant variety right assessor's card or refuse the revocation of the plant variety assessor's card to the concerned parties;

d2) If there are grounds confirming that the person with the issued plant variety right assessor's card no longer satisfies the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property, the People’s Committee of the province or centrally affiliated city shall issue a written notification of the intended revocation of the plant variety right assessor’s card to the person with the issued plant variety right assessor's card and impose a 1-month time limit from the notification date for him/her to provide any suggestion. The People’s Committee of the province or centrally affiliated city shall, based on the suggestions of the person with the issued plant variety assessor’s card, issue a decision to revoke the plant variety right assessor’s card or a notification of not revoking the plant variety assessor’s card to such a person;

d3) In case of a decision to revoke the plant variety right assessor’s card of a competent authority, within 1 month from the receipt date of the mentioned decision, the People’s Committee of the province or centrally affiliated city shall issue a decision to revoke the plant variety right assessor's card.

5. The preparation and disclosure of the list of plant variety right assessors and notification of changes to information concerning assessor’s cards shall be performed as follows:

a) The People’s Committee of the province or centrally affiliated city shall prepare a list of plant variety right assessors according to decisions on issuance, re-issuance, and revocation of plant variety right assessor’s cards and disclose the list on its web portal within 2 months from the decision issuance date;

b) The People’s Committee of the province or centrally affiliated city shall notify the plant variety right authority of the list of assessors and the information on changes concerning assessor’s cards of assessors working for the corresponding local plant variety right assessment organizations to serve the issuance, re-issuance, or revocation of certificates of local assessment organizations.

Article 113. Issuing, re-issuing, and revoking certificates of plant variety right assessment organizations

1. People's Committees of provinces and centrally affiliated cities are competent to issue, re-issue, and revoke certificates of plant variety assessment organizations and prepare and disclose the list of plant variety right assessment organizations according to Clauses 2, 3, 4, and 5 of this Article.

2. The issuance of certificates of plant variety right assessment organizations shall be performed as follows:

a) People’s Committees of the provinces or centrally affiliated cities shall issue certificates of plant variety right assessment organizations to organizations meeting the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property if such organizations apply for the issuance and pay the prescribed fees;

b) An application for the issuance of a certificate of plant variety right assessment organization shall include a set of the following documents:

b1) Statement on the request for the issuance of the certificate of plant variety right assessment organization following Form No. 11 Appendix VI of this Decree;

b2) Certified copies of the recruitment decision or labor contract between the organization and its plant variety right assessor;

b3) Payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the authority competent to settle this procedure).

c) Within 1 month from the date of receipt of the application, the People’s Committee of the province or centrally affiliated city shall assess the application according to the following regulations:

c1) If the application is valid, the People’s Committee of the province or centrally affiliated city shall issue a decision on the issuance of the certificate of assessment organization, specifying the full name, business name, and address of the organization and the list of plant variety right assessors that are its members; record the information to the list of assessment organizations and disclose it on its web portal within 5 working days from the decision issuance date;

c2) If the application has deficiencies, the People’s Committee of the province or centrally affiliated city shall issue a notification of the intended refusal of the acceptance of the application, specifying the reasons and imposing a 1-month time limit from the notification date for the applicant to amend the deficiencies or object to the refusal. After the imposed time limit, if the applicant fails to amend deficiencies or provides inadequate amendments, does not have any objection or provides inadequate objections, the People’s Committee of the province or centrally affiliated city shall issue a decision to refuse the issuance of the certificate of plant variety right assessment organization, specifying the reasons.

c3) The certificate of plant variety right assessment organization shall be made following Form No. 12 Appendix VI of this Decree.

3. The re-issuance of certificates of plant variety right assessment organizations shall be performed as follows:

a) In the following cases, the People’s Committee of the province or centrally affiliated city shall issue a decision to re-issue the certificate of plant variety right assessment organization if the assessment organization applies for the re-issuance and pays the prescribed fees:

a1) The certificate of plant variety assessment organization is lost, defective, or damaged (torn, dirty, faded, etc.) to the point of being unusable;

a2) The information in the certificate of plant variety right assessment organization prescribed in Point c1 Clause 2 of this Article has been changed.

b) The plant variety right assessment organization shall perform the procedure for requesting the authority that has issued the certificate of plant variety right assessment organization to re-issue the certificate if it wishes to continue its assessment operations;

c) An application for the re-issuance of a certificate of plant variety right assessment organization shall include a set of the following documents: 

c1) Statement on the request for the re-issuance of the certificate of plant variety right assessment organization, following Form No. 11 Appendix VI of this Decree;

c2) Certified copies of the amended certificate of business registration or amended certificate of operation registration of the plant variety right assessment organization in the case of changing the information on the organization, excluding the case where the enterprise identification number is declared in the statement on request for the re-issuance of the certificate of plant variety right assessment organization;

c3) Certified copies of the recruitment decision, labor contract, or decision on the termination of the labor contract between the organization and its plant variety right assessor in case of changes to the plant variety right assessor;

c4) Payment invoices of fees and charges (in cases of paying fees and charges via postal services or directly to the account of the authority competent to settle this procedure).

d) The processing of the application for the re-issuance of the certificate of plant variety right assessment organization shall be performed as follows:

d1) Within 15 days after receiving the application for the re-issuance of the certificate of plant variety right assessment organization, the People’s Committee of the province or centrally affiliated city shall assess the application following the procedure similar to the procedure for issuing the certificate of plant variety right assessment organization prescribed in Point c Clause 2 of this Article;

d2) If the certificate of plant variety assessment organization is defective due to an error of the People’s Committee of the province or centrally affiliated city, the mentioned authority shall re-issue the certificate within 5 working days from the date of receipt of the request of plant variety right assessment organization without charging any fee.

4. The revocation of certificates of plant variety right assessment organizations shall be performed as follows:

a) A certificate of plant variety right assessment organization shall be revoked in the following cases:

a1) There is evidence confirming that the certificate of plant variety right assessment organization has been issued contrary to laws;

a2) The organization no longer meets the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property;

a3) The plant variety right assessment organization terminates its assessment operations;

a4) There is evidence confirming that the plant variety right assessment organization violates the laws and is subject to a revocation of the certificate of plant variety right assessment organization requested by the competent authority.

b) The People’s Committee of the province or centrally affiliated city proactively or upon a request of an organization or individual revokes the certificate of plant variety right assessment organization if there are grounds confirming that the plant variety right assessment organization falls into one of the cases prescribed in Point a of this Clause;

c) An application for the revocation of a certificate of plant variety right assessment organization shall include a set of the following documents:

c1) Application for the revocation of the certificate of plant variety right assessment organization;

c2) Evidence backing up the grounds to request the revocation of the certificate of plant variety right assessment organization;

d) The procedure for revoking the certificate of plant variety right assessment is as follows:

d1) If an organization or individual requests the revocation of the certificate of plant variety right assessment organization according to Point c of this Clause, within 1 month from the date of receipt of the request, the certificate issuance authority shall provide a written notification of such a request for the organization with the issued certificate plant variety right assessment organization and impose a 1-month time limit from the notification date for the organization to provide any suggestion. The certificate issuance authority shall, based on the suggestions of concerned parties, issue a decision to revoke the certificate of plant variety right assessment organization or refuse the revocation of the certificate of plant variety right assessment organization and send it to the concerned parties;

d2) If there are grounds confirming that the organization with the issued certificate of plant variety right assessment organization no longer satisfies the requirements prescribed in Clause 2 Article 201 of the Law on Intellectual Property, the certificate issuance authority shall issue a written notification of the intended revocation of the certificate of plant variety right assessment organization to the mentioned organization and impose a 1-month time limit from the notification date for it to provide any suggestion. The certificate issuance authority shall, based on the suggestions of the organization with the issued certificate, issue a decision to revoke the certificate or a notification of not revoking the certificate to the organization;

d3) In case of a decision to revoke the certificate of plant variety right assessment organization of a competent authority, within 1 month from the receipt date of the mentioned decision, the certificate issuance authority shall issue a decision to revoke the certificate;

d4) The People’s Committee of the province or centrally affiliated city shall disclose the decision to revoke the certificate of plant variety right assessment organization on its web portal within 2 months from the decision issuance date.

5. The People’s Committee of the province or centrally affiliated city shall prepare a list of plant variety right assessment organizations according to this Article following the decisions on issuance, re-issuance, and revocation of certificates of plant variety right assessment organizations. The list of plant variety right assessment organizations shall be disclosed on the web portal of the People’s Committee of the province or centrally affiliated city. The People’s Committee of the province or centrally affiliated city shall notify the plant variety right authority of the list of plant variety right assessment organizations and changes concerning the corresponding local plant variety right assessment organizations to serve the recording of information to the National Register of List of Plant Variety Right Assessment Organization.

Section 4. OPERATIONS OF ASSESSMENT OF INDUSTRIAL PROPERTY AND RIGHTS TO PLANT VARIETIES

Article 114. Content and field of assessment of industrial property and rights to plant varieties

1. Assessment of industrial property and rights to plant varieties includes the following contents:

a) Determining the scope of protection of subjects of industrial property rights and rights to plant varieties;

b) Determining if the assessment subject satisfies the requirements to be considered elements of infringement on industrial property rights or rights to plant varieties according to Article 74 through Article 80 of this Decree;

c) Determining if there is any identicalness or similarity that causes confusion or indistinguishability or copy between the assessment subject and the subject under protection;

d) Evaluating industrial property rights and rights to plant varieties following the pricing methods prescribed in prices laws; evaluating damage according to Article 204 and Article 205 of the Law on Intellectual Property.

2. Assessment of industrial property and rights to plant varieties by the fields prescribed in the Law on Intellectual Property includes:

a) The field of industrial property assessment includes the following specialties:

a1) Assessment of inventions and layout designs;

a2) Assessment of industrial designs;

a3) Assessment of marks and geographical indications;

a4) Assessment of other industrial property rights.

b) Field of assessment of rights to plant varieties.

Article 115. Rights and obligations of petitioners for assessment of industrial property and rights to plant varieties

1. A petitioner for assessment of industrial property or rights to plant varieties may:

a) Request the assessment organization or the assessor to provide answers for the assessment conclusion following his/her requested content and time limit;

b) Request the assessment organization or the assessor the explain the assessment conclusion;

c) Request additional assessment or re-assessment according to Article 120 of this Decree;

d) Negotiate the assessment service price.

2. A petitioner for assessment of industrial property or rights to plant varieties shall:

a) Adequately and honestly provide documents, evidence, and information concerning the assessment subject as requested by the assessment organization or the assessor;

b) Clearly and specifically present issues or difficulties in content requiring assessment;

c) Pay the agreed assessment cost or advance the assessment cost upon request from the assessment organization or assessor;

d) Receive the assessment subject upon request of the assessment organization or assessor.

Article 116. Requesting assessment of industrial property and rights to plant varieties

1. Organizations and individuals that may request the assessment of industrial property and rights to plant varieties include:

a) Holders of industrial property rights and rights to plant varieties;

b) Organizations and individuals that are requested for infringement handling or subject to complaints or denunciations of industrial property rights or rights to plant varieties;

c) Other organizations and individuals with benefits and rights concerning the dispute, infringement, complaint, or denunciation of industrial property rights or rights to plant varieties.

2. Organizations and individuals prescribed in Clause 1 of this Article may request the assessment organization or the assessor of industrial property or rights to plant varieties to perform the assessment or authorize other organizations or individuals to carry out such request.

3. Independent assessors or assessment organizations receiving applications for assessment shall estimate the assessment cost and negotiate and conclude assessment contracts with the requesting organizations or individuals, except for cases of refusing the assessment as per regulation.

4. Any assessment request shall be made into an assessment service contract between the petitioner and the assessment organization or assessor.

5. An assessment service contract may include:

a) Name and address of the organization or individual requesting the assessment;

b) Name and address of the assessment organization or the assessor;

c) Content requested for assessment;

d) Relevant documents, evidence, and items;

dd) Time limit for returning the assessment conclusion;

e) Rights and tasks of parties;

g) Location and time of assessment;

h) Assessment cost and payment methods;

i) Contract acceptance and liquidation;

k) Liability to compensate for damage and dispute settlement methods.

Article 117. Delivering, receiving, and returning assessment subjects of industrial property and rights to plant varieties

If the assessment request is enclosed with the assessment subject, the delivery, receipt, and return of such a subject shall be made into minutes with the following contents:

1. Time and location of the delivery, receipt, and return of the assessment subject.

2. Names and addresses of the delivering party and the receiving party or the representative.

3. Name of the assessment subject and relevant documents and items.

4. Condition and methods of preserving the assessment subject during the delivery, receipt, and return.

5. Signatures of the delivering and receiving parties or the representative in case of authorizing a third party to request the assessment.

Article 118. Collecting assessment samples of industrial property and rights to plant varieties

1. The assessment organization or assessor may collect assessment samples (specific items that are elements of infringement and subjects of industrial property or rights to plant varieties under protection) or request the petitioner to provide assessment samples. The collection of assessment samples shall be made into minutes with the witness and signatures of concerned parties.

2. The delivery, receipt, and return of assessment samples shall be carried out according to Article 117 of this Decree.

Article 119. Implementing assessment of industrial property and rights to plant varieties

1. An assessment of industrial property or rights to plant varieties may be performed by one or several assessors of industrial property or rights to plant varieties. An individual assessment shall be performed by one assessor. A collective assessment shall be performed by at least two assessors.

2. In the case of an individual assessment, the assessor shall perform the whole assessment and take responsibility for his/her assessment conclusion. In the case of a collective assessment concerning matters subject to the same professional field, assessors shall jointly perform the assessment, sign the document on the general assessment conclusion, and take responsibility for the conclusion. If there are different opinions, each assessor shall write his/her opinion on the conclusion to the minutes of the general assessment conclusion and take responsibility for such an opinion. In the case of a collective assessment concerning matters subject to different professional fields, each assessor shall perform his/her part of the work and take responsibility for his/her assessment conclusion.

Article 120. Additional assessment and re-assessment of industrial property and rights to plant varieties

1. An additional assessment shall be performed in case the assessment conclusion is incomplete or unclear about the content subject to assessment or in case of new details requiring clarification. Any request for additional assessment and the performance of such assessment shall comply with regulations on first-time assessment.

2. A re-assessment shall be performed in case the petitioner disagrees with the assessment result or in case of conflicts among assessment conclusions on the same matter subject to assessment. The re-assessment may be performed by the assessment organization or the assessor that performed the previous assessment or by another assessment organization or assessor following the request of the petitioner.

3. In case of differences among assessment conclusions or between the assessment conclusion with the professional suggestion of an industrial property right authority or plant variety right authority on the same matter subject to assessment, the petitioner may continue to request the assessment organization or the assessor to perform the re-assessment.

4. In case of necessity, during the assessment of industrial property rights or rights to plant varieties, the assessment organization may establish a counseling council for assessment of industrial property rights or rights to plant varieties to collect professional suggestions on matters subject to assessment. Matters related to the assessment counseling council shall be handled as follows:

a) The assessment organization shall select council members related to the assessment specialty and issue a decision to establish the counseling council for assessment of industrial property and rights to plant varieties. The council for assessment of industrial property and rights to plant varieties shall include the president and members. The number of its members shall be an odd number consisting of at least 3 members.

b) The counseling council for assessment of industrial property and rights to plant varieties shall operate under democratic principles and organize public voting on professional suggestions. Members shall jointly conduct professional discussions, and their suggestions shall be recorded in the minutes of meetings of the council.

c) The whole process of assessment counseling of the counseling council for assessment of industrial property and rights to plant varieties shall be adequately specified under the form of working minutes. The minutes shall bear the signatures of the president and the members of the council and be stored in the assessment application.

Article 121. Documents on conclusions of assessment of industrial property and rights to plant varieties

1. Conclusions of assessment of industrial property and rights to plant varieties prescribed in Clause 5 Article 201 of the Law on Intellectual Property shall be made in writing.

2. A document on a conclusion of assessment of industrial property or rights to plant varieties prescribed in Clause 1 of this Article shall include:

a) Name and address of the assessment organization or the assessor;

b) Name and address of the organization or individual requesting the assessment;

c) Subject, content, and scope of assessment;

d) Assessment method;

dd) Assessment conclusion;

e) Assessment time, location, and completion.

3. The independent assessor or assessment organization shall send a document on the assessment conclusion to the organization or individual requesting the assessment according to the agreed time limit prescribed in the assessment contract. In the case of an independent assessment, the assessor performing the assessment shall sign the document on the assessment conclusion and take responsibility for his/her assessment conclusion. In case the assessment is performed by an organization, the assessor in charge of the assessment and the legal representative of the assessment organization shall jointly sign and stamp the document on the assessment conclusion and take responsibility for such a conclusion.

4. In case the assessment needs more time, the independent assessor or the assessment organization shall promptly notify the organization or individual requesting the assessment of such matter in writing.

Article 122. Price for service of assessment of industrial property and rights to plant varieties

The price for the service of assessment of industrial property or rights to plant varieties shall be agreed on by the concerned parties.

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