Joint Circular No. 01/2008/TTLT-TANDTC-VKSNDTC-BCA-BTP guiding the prosecution of criminal responsibility for acts infringing intellectual property rights.

JOINT CIRCULAR

Guidelines for Pursuing Criminal Liability

for Acts Infringing Intellectual Property Rights

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To ensure that the pursuit of criminal liability for acts infringing intellectual property rights is accurate and consistent, contributing to the protection of intellectual property rights in Vietnam; the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Justice hereby provide the following guidelines:

1. Pursuit of criminal liability for acts infringing copyright and related rights

1.1. Any person who intentionally commits one of the acts infringing copyright or related rights prescribed in Article 28 or Article 35 of the Law on Intellectual Property under any of the following circumstances shall be considered as causing "serious consequences" and if they meet all other elements constituting a crime, they shall be pursued for criminal responsibility for the offense of "infringing copyright" under Clause 1, Article 131 of the Penal Code:

a) On a commercial scale and with a commercial purpose;

b) Causing material damage to the subject of copyright or related rights from VND 50,000,000 to less than VND 150,000,000 (including damage caused by infringement of copyright or related rights and expenses incurred by the subject of copyright or related rights to remedy the consequences caused by the infringing act);

c) The value of infringing goods from VND 50,000,000 to less than VND 150,000,000.

1.2. Any person who intentionally commits one of the acts infringing copyright or related rights prescribed in Article 28 or Article 35 of the Law on Intellectual Property under any of the following circumstances shall be considered as causing "very serious consequences" and if they meet all other elements constituting a crime, they shall be pursued for criminal responsibility for the offense of "infringing copyright" under Clause 2, Article 131 of the Penal Code:

a) On a commercial scale and with a commercial purpose and having obtained profits from VND 30,000,000 to less than VND 100,000,000;

b) Causing material damage to the subject of copyright or related rights from VND 150,000,000 to less than VND 450,000,000 (including damage caused by infringement of copyright or related rights and expenses incurred by the subject of copyright or related rights to remedy the consequences caused by the infringing act);

c) The value of infringing goods from VND 150,000,000 to less than VND 500,000,000.

1.3. Any person who intentionally commits one of the acts infringing copyright or related rights prescribed in Article 28 or Article 35 of the Law on Intellectual Property under any of the following circumstances shall be considered as causing "extremely serious consequences" and if they meet all other elements constituting a crime, they shall be pursued for criminal responsibility for the offense of "infringing copyright" under Clause 2, Article 131 of the Penal Code:

a) On a commercial scale and with a commercial purpose and having obtained profits of VND 100,000,000 or more;

b) Causing material damage to the subject of copyright or related rights of VND 450,000,000 or more (including damage caused by infringement of copyright or related rights and expenses incurred by the subject of copyright or related rights to remedy the consequences caused by the infringing act);

c) The value of infringing goods of VND 500,000,000 or more.

1.4. In cases where any person intentionally commits one of the acts infringing copyright or related rights prescribed in Article 28 or Article 35 of the Law on Intellectual Property without meeting all elements constituting a crime under Article 131 of the Penal Code, but meets all elements constituting a crime under another provision of the Penal Code, they shall be pursued for criminal responsibility for the corresponding offense under that provision of the Penal Code.

2. Pursuit of criminal liability for acts infringing industrial property rights

2.1. Any person who, for business purposes, intentionally commits one of the acts infringing industrial property rights with counterfeit goods bearing trademarks as prescribed in Clause 2, Article 213 of the Law on Intellectual Property and falls under any of the following circumstances shall be considered as causing "serious consequences" and shall be pursued for criminal responsibility for the offense of "infringing industrial property rights" under Clause 1, Article 171 of the Penal Code:

a) Having obtained profits from VND 10,000,000 to less than VND 50,000,000;

b) Causing material damage to the owner of the trademark from VND 50,000,000 to less than VND 150,000,000;

c) The value of infringing goods from VND 50,000,000 to less than VND 150,000,000.

2.2. Any person who, for business purposes, intentionally commits one of the acts infringing industrial property rights with counterfeit goods bearing trademarks as prescribed in Clause 2, Article 213 of the Law on Intellectual Property and falls under any of the following circumstances shall be considered as causing "very serious consequences" and shall be pursued for criminal responsibility for the offense of "infringing industrial property rights" under Clause 2, Article 171 of the Penal Code:

a) Having obtained profits from VND 50,000,000 to less than VND 150,000,000;

b) Causing material damage to the owner of the trademark from VND 150,000,000 to less than VND 450,000,000;

c) The value of infringing goods from VND 150,000,000 to less than VND 500,000,000.

2.3. Any person who, for business purposes, intentionally commits one of the acts infringing industrial property rights with counterfeit goods bearing trademarks as prescribed in Clause 2, Article 213 of the Law on Intellectual Property and falls under any of the following circumstances shall be considered as causing "extremely serious consequences" and shall be pursued for criminal responsibility for the offense of "infringing industrial property rights" under Clause 2, Article 171 of the Penal Code:

a) Having obtained profits of VND 150,000,000 or more;

b) Causing material damage to the owner of the trademark of VND 450,000,000 or more;

c) The value of infringing goods of VND 500,000,000 or more.

3. Conditions for pursuing criminal responsibility

According to Clause 1, Article 105 of the Criminal Procedure Code, criminal responsibility shall only be pursued when:

a) There is a request from the subject of copyright or related rights for the case guided at Subpoint 1.1 Point 1 of this Circular (Clause 1, Article 131 of the Penal Code);

b) There is a request from the owner of the trademark or organization managing geographical indications for the case guided at Subpoint 2.1 Point 2 of this Circular (Clause 1, Article 171 of the Penal Code).

4. Handling of evidence

4.1. When handling evidence as provided for in Article 41 of the Criminal Code and Article 76 of the Criminal Procedure Code in cases involving intellectual property rights offenses, it must be based on Clause 5 of Article 202 of the Intellectual Property Law and the guidance set out in Chapter IV of Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law regarding the protection of intellectual property rights and state management of intellectual property.

4.2. In cases where Vietnamese law or international treaties to which the Socialist Republic of Vietnam is a party provide that such evidence must be destroyed, the judicial organ shall decide to destroy it according to those provisions, regardless of whether the evidence may have any value for use.

1. This Circular takes effect from May 15, 2013.

5.1. This Circular takes effect fifteen days from the date of publication in the Official Gazette.

5.2. During implementation, if there are any difficulties or lack of guidance, requiring further explanation or supplementary guidance, they should be reported to the Supreme People's Court, the Supreme People's Procuracy, the Ministry of Public Security, and the Ministry of Justice for timely clarification or supplementary guidance.