Decree No. 106/2006/ND-CP on administrative penalties for violations related to industrial property rights

DECREE

Regulations on Administrative Sanctions for Violations Concerning Industrial Property

______________________________

 

THE GOVERNMENT

 

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Intellectual Property Law dated November 29, 2005;

Based on the Administrative Violation Handling Ordinance dated July 2, 2002;

Considering the proposal of the Minister of Science and Technology,

 

DECREE:

 

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

1. This Decree stipulates administrative violations concerning industrial property, forms and levels of sanctions, jurisdiction, procedures for imposing sanctions, and measures to remedy consequences.

2. Administrative violations concerning industrial property as prescribed in this Decree include:

a) Actions violating the provisions of laws on state management of industrial property;

b) Infringement actions against industrial property rights as stipulated in Clause 1, Article 211 of the Intellectual Property Law, including: committing acts of infringing industrial property rights causing damage to consumers or society; failing to cease infringing acts despite being notified in writing by the owner of the industrial property right to stop such acts; producing, importing, transporting, selling counterfeit goods concerning industrial property as provided in Article 213 of the Intellectual Property Law or entrusting others to commit such acts; producing, importing, transporting, selling goods bearing trademarks or geographical indications that are identical or similar enough to cause confusion with protected trademarks or geographical indications or entrusting others to commit such acts.

3. Individuals and organizations within Vietnam and abroad who commit specific violations as detailed in Chapter II of this Decree within the territory of the Socialist Republic of Vietnam shall be subject to administrative sanctions as prescribed in this Decree. Where international treaties to which Vietnam is a party provide different provisions, such provisions shall apply.

Article 2. Principles of Administrative Sanctions

1. Individuals and organizations shall be subject to administrative sanctions for violations concerning industrial property when they commit acts prohibited under Chapter II of this Decree.

2. All administrative violations must be promptly stopped upon discovery. Administrative sanctions must be carried out swiftly, fairly, and thoroughly; all consequences caused by administrative violations must be remedied according to the law.

3. Administrative sanctions concerning industrial property must be conducted by persons with jurisdiction as stipulated in Article 18 of this Decree in accordance with the law on administrative sanctions.

4. A single violation shall only be sanctioned once; an individual committing multiple violations shall be sanctioned for each violation; multiple individuals committing the same violation shall each be sanctioned.

5. Administrative sanctions must be based on the nature and degree of the violation, the identity of the violator, and mitigating or aggravating circumstances to determine the form and level of sanction and appropriate measures as prescribed in this Decree.

6. Administrative sanctions shall not be imposed on cases involving emergency situations, unexpected events, or individuals who are committing violations while suffering from mental illness or other diseases that impair their ability to recognize or control their behavior.

In cases where an individual or organization simultaneously commits multiple violations, including those concerning industrial property, the authority to impose sanctions shall be determined according to the principle stipulated in Clause 3, Article 42 of the Administrative Violation Handling Ordinance.

Where it is found that a violation has characteristics of a criminal offense, the person with jurisdiction as stipulated in Article 18 of this Decree must transfer the case file to the competent criminal investigation agency at the same level for handling.

Strictly prohibit the application of administrative sanctions to acts showing signs of criminal offenses concerning industrial property.

Article 3. Forms of punishment and measures to remedy consequences

1. Principal forms of punishment: For each violation, the violator, whether an individual or an organization, shall be subject to one of two principal forms of punishment: warning or fine.

2. Warning: This form of punishment shall be applied in cases of unintentional violations; minor violations for the first time with mitigating circumstances, or for all administrative violations committed by juveniles aged from 14 to under 16 years old.

3. Fine: The authority with decision-making power shall determine the amount of fine based on the nature and degree of the violation within the prescribed fine range.

For administrative violations concerning industrial property rights, the specific amount of fine for a single violation shall be the midpoint of the prescribed fine range for that violation in the absence of mitigating or aggravating circumstances. The midpoint of the fine range is determined by dividing the sum of the minimum and maximum amounts by two.

If there are mitigating circumstances, the amount of fine may be reduced but not below the minimum level of the prescribed fine range.

If there are aggravating circumstances, the amount of fine may be increased but not above the maximum level of the prescribed fine range.

4. Supplementary forms of punishment: Depending on the nature and degree of the violation, individuals or organizations committing violations may also be subject to one or more of the following supplementary forms of punishment:

a) Confiscation of evidence of violation, means of transportation involved in the violation; confiscation of counterfeit goods bearing trademarks or geographical indications, raw materials, materials, and means primarily used to produce and trade counterfeit goods bearing trademarks or geographical indications.

b) Confiscation of certificates of protection, documents proving industrial property rights that have been altered or erased.

c) Confiscation of documents that have been altered, erased, or forged.

d) Suspension of the right to use the Certificate of Professional Practice in Industrial Property Representation for a limited or unlimited period.

đ) Suspension of the right to use the Inspector's Card for a limited or unlimited period.

e) Suspension of business operations involving the products or services in violation for a limited period.

5. Application of measures to remedy consequences:

In addition to the principal and supplementary forms of punishment mentioned above, individuals or organizations committing administrative violations may also be compelled to apply one or more of the following measures to remedy consequences:

a) Compel removal of elements of violation from products, goods, or means of trade.

b) Compel destruction or distribution or use without commercial intent of counterfeit goods bearing trademarks or geographical indications, raw materials, materials, and means primarily used to produce and trade counterfeit goods bearing trademarks or geographical indications, provided that such actions do not affect the ability to exploit the rights of the owner of the industrial property.

c) Compel destruction of goods violating health, animal life, crops, and the environment.

d) Compel removal of goods in transit violating industrial property rights from Vietnam or compel re-export of counterfeit goods bearing trademarks or geographical indications, raw materials, materials, and means primarily used to produce and trade counterfeit goods bearing trademarks or geographical indications after removing elements of violation from the goods.

đ) Compel supplementation of information regarding protection of industrial property rights.

e) Compel public correction through mass media for acts misleadingly indicating industrial property rights.

g) Compel recovery of evidence and means of transportation that have been concealed.

Article 4. Mitigating and Aggravating Circumstances

1. Mitigating circumstances include:

a) The violator has taken measures to prevent, mitigate, or limit the harmful effects of the violation or has voluntarily remedied the consequences and compensated for losses;

b) The administrative violator has voluntarily reported and sincerely repented;

c) The violation occurred under mental provocation caused by another person's unlawful act;

d) The violation was committed due to coercion or dependency on material or spiritual factors;

đ) The violator is a pregnant woman, elderly person, sick person, or disabled person whose capacity to understand or control their actions is limited;

e) The violation occurred due to particularly difficult circumstances not caused by oneself;

g) The violation was committed due to lack of knowledge about industrial property;

h) The violation was committed through contractual relationships of ordering or assigning work without knowing it was a violation;

2. Aggravating circumstances include:

a) Organized violation;

b) Repeatedly committing violations or reoffending regarding industrial property;

c) Inciting or coercing minors to commit violations or coercing dependent persons to commit violations;

d) Taking advantage of positions or powers to violate;

đ) Taking advantage of wartime conditions, natural disasters, or other special difficulties of society to commit violations;

e) Committing violations during the execution of criminal sentences or administrative violation handling decisions;

g) Continuing to commit administrative violations despite authorities' requests to stop such actions;

h) After committing violations, the violator has engaged in acts to evade or conceal administrative violations;

Article 5. Time Limit for Administrative Sanctions and Consideration as Unpunished

1. The time limit for administrative sanctions concerning industrial property violations is two years from the date the violation was committed. If this period has passed, individuals or organizations that committed the violation will not be sanctioned but may still have corrective measures applied as stipulated in Clause 5, Article 3 of this Decree;

2. For individuals who have been indicted, prosecuted, or had a case brought to trial under criminal procedure but were later subject to a decision to terminate investigation or close the case, if the violation also indicates an administrative offense, they will be administratively sanctioned; in this case, the time limit for administrative sanctions is three months from the date the sanctioning authority receives the decision to terminate and the case file;

3. Within the time limits specified in Clauses 1 and 2 of this Article, if individuals or organizations commit new industrial property violations or intentionally evade or obstruct punishment, the time limits set out in Clauses 1 and 2 of this Article will not apply. The time limit for administrative sanctions will start from the date of the new violation or the date when evasion or obstruction of punishment ends;

4. Individuals or organizations administratively sanctioned for industrial property violations will be considered as not having been punished if they do not reoffend within one year from the completion of the sanction enforcement or from the expiration of the enforcement deadline of the sanction decision;

Chapter II

VIOLATIONS,

FORMS AND AMOUNTS OF FINES

Article 6. Violations Regarding Procedures for Establishing, Implementing, and Protecting Industrial Property Rights

1. A fine of between 1,000,000 VND and 3,000,000 VND shall be imposed on individuals or organizations that engage in any of the following acts: altering, erasing, or tampering with certificates of protection and documents proving industrial property rights;

2. A fine of between 5,000,000 VND and 10,000,000 VND shall be imposed on individuals or organizations that provide false information or evidence in the following cases:

a) Conducting procedures for establishing, recognizing, certifying, amending, maintaining, extending, requesting suspension, or revoking the validity of industrial property rights;

b) Requesting state agencies with jurisdiction to issue compulsory transfer decisions for patents;

c) Filing complaints or reports regarding the establishment or implementation of industrial property rights;

d) Requesting competent authorities to handle violations, request industrial property appraisals;

đ) Implementing requests for handling violations, applying preventive measures and ensuring administrative penalties, applying import control measures with improper motives aimed at disrupting normal operations or causing damage to other organizations or individuals;

3. A fine of between 10,000,000 VND and 15,000,000 VND shall be imposed on individuals or organizations that forge documents in the cases specified in Clause 2 of this Article;

4. Additional forms of punishment: confiscation of documents, materials, certificates of protection, and documents proving industrial property rights that have been altered, erased, or forged in the cases specified in Clauses 1, 2, and 3 of this Article.

Article 7. Acts violating regulations on intellectual property representation activities

1. A fine of VND 1,000,000 to VND 3,000,000 shall be imposed on individuals and organizations representing intellectual property rights that commit any of the following acts:

a) Failing to provide full and truthful information regarding notifications and requests from competent state agencies for establishing, exercising, and protecting intellectual property rights for the represented party; failing to promptly deliver certificates of protection, documents proving intellectual property rights, certificates, and other decisions to the represented party without justifiable reasons;

b) Failing to notify competent state agencies for establishing, exercising, and protecting intellectual property rights of changes in the name, address, and other information of the represented party.

2. A fine of VND 3,000,000 to VND 5,000,000 shall be imposed on individuals and organizations representing intellectual property rights that commit any of the following acts:

a) Simultaneously representing conflicting parties in disputes over intellectual property rights;

b) Unilaterally withdrawing applications for issuance of protection certificates, declaring abandonment of protection, withdrawing complaints, or performing other acts in the establishment, exercise, and protection of intellectual property rights without authorization from the authorized representative;

c) Deceiving or coercing clients in the conclusion and performance of intellectual property representation contracts;

d) Failing to inform or providing false information about fees and charges related to procedures for establishing, exercising, and protecting intellectual property rights, service fees registered with state management agencies for intellectual property rights as required by clients or competent authorities;

đ) Violating the obligation to keep confidential information and documents provided by clients or competent authorities, intellectual property appraisal organizations related to ongoing cases;

e) Lending or using the Intellectual Property Representation Service Practice Certificate for purposes not within its functions;

g) Intentionally providing incorrect advice or notifications regarding legal provisions on intellectual property rights, information on intellectual property activities;

h) Obstructing the normal progress of establishing, exercising, and protecting intellectual property rights, causing damage to persons with rights and interests involved;

3. A fine of VND 6,000,000 to VND 10,000,000 shall be imposed on organizations and individuals engaging in intellectual property representation services without meeting the conditions stipulated by law;

4. A fine of VND 10,000,000 to VND 15,000,000 shall be imposed on individuals and organizations representing intellectual property rights that commit any of the following acts:

a) Impersonating state management agencies or personnel of state management agencies for intellectual property rights to conduct intellectual property representation services;

b) Disclosing unauthorized information from competent state agencies related to the process of receiving, examining, and handling various types of intellectual property registration applications;

c) Individuals holding an Intellectual Property Representation Practice Certificate committing serious violations during practice, causing harm to national and social interests.

5. Additional forms of punishment:

a) Suspension of the right to use the Intellectual Property Representation Service Practice Certificate for three to six months for violations specified in points a, b, đ, e, g, and h of Clause 2 of this Article;

b) Permanent suspension of the right to use the Intellectual Property Representation Service Practice Certificate for violations specified in points c and d of Clause 2 and Clause 4 of this Article.

Article 8. Violations in industrial property appraisal activities

1. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed on individuals and organizations with the function of appraising industrial property for performing any of the following acts:

a) Failure to comply with the prescribed procedures and formalities for appraisal; failure to perform the obligations of the requesting party, the party requesting the appraisal, and the individual or organization conducting the appraisal as stipulated by the law on appraisal;

b) Accepting and conducting an appraisal in cases where they must refuse to conduct an appraisal according to the provisions;

c) Intentionally issuing false appraisal conclusions, or issuing appraisal conclusions without sufficient grounds or grounds that are not consistent with the case;

d) Disclosing confidential information obtained during the appraisal process without permission from the relevant parties.

2. Additional sanctions: revocation of the Appraiser Card for a period of six months to twelve months or indefinitely for violations stipulated in Clause 1 of this Article.

Article 9. Violations concerning misleading indications regarding the protection of industrial property rights

1. A fine of VND 1,000,000 to VND 3,000,000 shall be imposed on individuals and organizations for performing any of the following misleading acts regarding the protection of industrial property rights in production, trade, transactions, advertising, marketing:

a) Misleading (including misleading through symbols) about the subject of industrial property rights; misleading about whether products or services contain protected industrial property elements; misleading or failing to indicate that products or goods have been produced under contracts using objects of industrial property; misleading about the inventor of the invention or the designer of the industrial design;

b) Misleading about the legal status of the protection of industrial property rights for inventions, industrial designs, layout designs, trademarks, and geographical indications.

2. Measures to remedy consequences:

a) Obligation to remove infringing elements from products, goods, business means for violations stipulated in Clause 1 of this Article;

b) Obligation to make public corrections on mass media for violations stipulated in Clause 1 of this Article;

c) Obligation to destroy goods that violate and harm human health, livestock, crops, and the environment for violations stipulated in Clause 1 of this Article.

Article 10. Violations of the obligation to maintain confidentiality of test data when applying for business operation and circulation permits for pharmaceuticals and agrochemicals

A fine of VND 7,000,000 to VND 10,000,000 shall be imposed on individuals and organizations for violating the confidentiality requirements for test result data in the application process for business operation and circulation permits for pharmaceuticals and agrochemicals.

Article 11. Illegal obstruction of state management, inspection, and supervision activities related to industrial property

1. A warning or a fine of VND 100,000 to VND 300,000 shall be imposed on individuals and organizations for failing to present or presenting incomplete documents, information, or data to the competent state agency on industrial property or to the authorized person upon request.

2. A fine of VND 1,000,000 to VND 2,000,000 shall be imposed on any of the following acts:

a) Refusing to implement decisions or requests for inspection and supervision contrary to regulations;

b) Failing to provide, providing incomplete, or providing false necessary documents or data for inspection and supervision activities as required by the authorized person;

c) Obstructing, creating difficulties, or evading inspections and supervisions conducted by the authorized person.

3. A fine of VND 2,000,000 to VND 3,000,000 shall be imposed on any of the following acts:

a) Insulting, defaming, or humiliating the authorized person conducting inspections and supervisions on industrial property;

b) Intentionally delaying, evading, or failing to execute administrative decisions of the authorized person, or failing to implement requests, conclusions, or decisions of the Inspection and Supervision Team on industrial property.

4. A fine of VND 2,000,000 to VND 4,000,000 shall be imposed on any of the following acts:

a) Unauthorized removal of seals, unauthorized alteration of the scene, unauthorized change in quantity or type of goods that are evidence of violations of industrial property rights being inspected, sealed, or temporarily detained;

b) Concealing or destroying evidence or means of inspection and supervision.

5. Remedial measures: obligation to recover evidence or means concealed as stipulated in Point b Clause 4 of this Article.

Article 12. Acts Infringing Rights to Patents, Industrial Designs, and Layout-Designs

1. A warning or a fine from one to two times the value of the infringing products or goods discovered shall be imposed on individuals or organizations that commit any of the following acts of infringement for commercial purposes, causing damage to consumers and society, or failing to cease the infringement despite requests from the right holder where the infringing products or goods have a value up to VND 20,000,000:

a) Producing (manufacturing, processing, assembling, processing, packaging) products infringing rights to patents, industrial designs, and layout-designs;

b) Using an infringing process for patents;

c) Exploiting the utility (using in business activities) of products infringing rights to patents;

d) Selling, transporting, advertising, offering for sale, storing for sale products infringing rights to patents; products infringing rights to industrial designs;

đ) Importing products infringing rights as specified in point d clause 1 of this Article and products containing infringing layout-designs;

e) Selling, renting, storing for sale, transporting, advertising, offering for sale copies of infringing layout-designs, products, or goods containing infringing layout-designs, layout-designs, or products, or goods containing such objects.

2. A fine from two to three times the value of the infringing products or goods discovered shall be imposed on individuals or organizations that commit any of the acts of infringement specified in clause 1 of this Article where the infringing products or goods have a value from over VND 20,000,000 to VND 40,000,000.

3. A fine from three to four times the value of the infringing products or goods discovered shall be imposed on individuals or organizations that commit any of the acts of infringement specified in clause 1 of this Article where the infringing products or goods have a value from over VND 40,000,000 to VND 60,000,000.

4. A fine from four to five times the value of the infringing products or goods discovered shall be imposed on individuals or organizations that commit any of the acts of infringement specified in clause 1 of this Article where the infringing products or goods have a value from over VND 60,000,000.

5. Additional forms of punishment:

a) Seizure of infringing items and means of administrative violation for acts of infringement as specified in clauses 1, 2, 3, and 4 of this Article;

b) Suspension of business operations involving infringing products or services for three to six months for acts of infringement as specified in clauses 1, 2, 3, and 4 of this Article.

6. Measures to remedy consequences:

a) Compelling removal of infringing elements from products, goods, or business means for acts as specified in clauses 1, 2, 3, and 4 of this Article;

b) Compelling distribution or use for non-commercial purposes, or destruction of substandard goods harmful to human health, animals, plants, and the environment for acts of infringement as specified in clauses 1, 2, 3, and 4 of this Article;

c) Compelling exportation out of Vietnam or re-exportation of infringing goods or means for acts of infringement as specified in clauses 1, 2, 3, and 4 of this Article.

Article 13. Acts Infringing Rights to Trademarks, Geographical Indications, and Trade Names

1. A warning or a fine from one to two times the value of the infringing goods discovered shall be imposed on individuals or organizations that commit any of the following acts infringing rights to trademarks, geographical indications, and trade names, causing damage to consumers or society; failing to cease the infringing act despite requests from the right holder where the infringing goods discovered have a value up to VND 15,000,000:

a) Applying (printing, affixing, attaching, casting, stamping, or other methods) signs infringing rights to trademarks, geographical indications, and trade names onto goods or packaging;

b) Selling, transporting, offering for sale, advertising for sale, storing for sale goods infringing rights to trademarks, geographical indications, and trade names;

c) Importing goods or services containing elements infringing rights to trademarks, geographical indications, and trade names;

d) Using signs on products, goods, or packaging containing elements infringing rights to trade names.

2. A fine from two to three times the value of the infringing goods or services discovered shall be imposed on individuals or organizations that commit any of the acts specified in clause 1 of this Article where the infringing goods or services have a value from over VND 15,000,000 to VND 30,000,000.

3. A fine from three to four times the value of the infringing goods or services discovered shall be imposed on individuals or organizations that commit any of the acts specified in clause 1 of this Article where the infringing goods or services have a value from over VND 30,000,000 to VND 45,000,000.

4. A fine from four to five times the value of the infringing goods or services discovered shall be imposed on individuals or organizations that commit any of the acts specified in clause 1 of this Article where the infringing goods or services have a value from over VND 45,000,000.

5. A fine from VND 10,000,000 to VND 15,000,000 shall be imposed on the act of applying (printing, affixing, attaching, casting, stamping, or other methods) signs infringing rights to trademarks, trade names, or geographical indications onto business means, service means, transaction documents, or signboards.

6. Additional forms of punishment:

a) Seizure of infringing items and means of administrative violation for acts specified in clauses 1, 2, 3, 4, and clause 5 of this Article;

b) Suspension of business operations involving infringing goods or services for one to three months for acts of infringement as specified in clauses 1, 2, 3, 4, and clause 5 of this Article.

7. Measures to remedy consequences:

a) Compelling removal of infringing elements from products, goods, or business means for acts of infringement as specified in clauses 1, 2, 3, 4, and clause 5 of this Article;

b) Compelling destruction of substandard infringing goods harmful to human health, animals, plants, and the environment for acts of infringement as specified in clauses 1, 2, 3, 4, and clause 5 of this Article;

c) Compelling exportation out of Vietnam or re-exportation of infringing goods or means for acts of infringement as specified in clauses 1, 2, 3, 4, and clause 5 of this Article.

Article 14. Acts of producing, transporting, importing, selling goods bearing trademarks or geographical indications in violation

1. Warning or imposing a fine from one to two times the value of the infringing goods discovered for individuals or organizations that commit any of the acts of producing, importing, transporting, or selling goods bearing trademarks or geographical indications that are identical or similar enough to cause confusion with protected trademarks or geographical indications, or entrusting others to perform such acts when the value of the infringing goods discovered does not exceed 20,000,000 VND;

2. Imposing a fine from two to three times the value of the infringing goods discovered for individuals or organizations that commit any of the acts stipulated in Clause 1 of this Article when the value of the infringing goods ranges from over 20,000,000 VND to 40,000,000 VND;

3. Imposing a fine from three to four times the value of the infringing goods discovered for individuals or organizations that commit any of the acts stipulated in Clause 1 of this Article when the value of the infringing goods ranges from over 40,000,000 VND to 60,000,000 VND;

4. Imposing a fine from four to five times the value of the infringing goods discovered for individuals or organizations that commit any of the acts stipulated in Clause 1 of this Article when the value of the infringing goods exceeds 60,000,000 VND;

5. Additional forms of punishment:

a) Seizing the infringing objects and means of administrative violations for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

b) Suspending business operations of products and services infringing on intellectual property rights for one to three months for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

6. Measures to remedy consequences:

a) Ordering the removal of infringing elements on products, goods, and business means for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

b) Ordering the destruction of goods and items without usable value, not ensuring safe use, harmful to production, human health, animals, plants, and the environment for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

c) Compelling exportation out of Vietnam or re-exportation of infringing goods or means for acts of infringement as specified in clauses 1, 2, 3, and 4 of this Article.

Article 15. Acts of producing, importing, transporting, selling, storing for sale counterfeit goods bearing trademarks or geographical indications

1. Imposing a fine from one to two times the value of the counterfeit goods discovered for individuals or organizations that commit any of the following acts or entrust others to perform such acts when the value of the counterfeit goods discovered does not exceed 10,000,000 VND, including:

a) Producing, importing, printing, affixing, attaching, casting, stamping, or using other methods to apply counterfeit trademarks or geographical indications to products, packaging, or goods;

b) Transporting, storing counterfeit goods bearing trademarks or geographical indications;

c) Selling, advertising for the purpose of selling, offering counterfeit goods bearing trademarks or geographical indications;

2. Imposing a fine from two to three times the value of the counterfeit goods discovered under Clause 1 of this Article when the value of the counterfeit goods discovered ranges from over 10,000,000 VND to 20,000,000 VND;

3. Imposing a fine from three to four times the value of the counterfeit goods discovered under Clause 1 of this Article when the value of the counterfeit goods discovered ranges from over 20,000,000 VND to 30,000,000 VND;

4. Imposing a fine from four to five times the value of the counterfeit goods discovered under Clause 1 of this Article when the value of the counterfeit goods discovered exceeds 30,000,000 VND;

5. Additional forms of punishment:

a) Seizing the infringing objects and means of administrative violations for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

b) Suspending business operations of products and services violating intellectual property rights for one to three months for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

6. Measures to remedy consequences:

a) Ordering the destruction or distribution or use for non-commercial purposes of counterfeit goods bearing trademarks or geographical indications, raw materials, materials, and means mainly used to produce and trade in counterfeit goods bearing trademarks or geographical indications, provided that it does not affect the exploitation of the rights of the owner of the industrial property right for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

b) Ordering the destruction of goods causing harm to human health, animals, crops, and the environment for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

c) Ordering the export out of Vietnam for transit goods violating intellectual property rights or re-exporting infringing goods, counterfeit goods bearing trademarks or geographical indications, means, raw materials, and materials imported mainly used to produce and trade in counterfeit goods bearing trademarks or geographical indications after removing the infringing elements on the goods for the violations prescribed in Clauses 1, 2, 3, and 4 of this Article;

Article 16. Unfair competition practices and violations of business secrets in the field of industrial property

Individuals and organizations engaging in unfair competition practices and violations of business secrets related to industrial property shall be subject to administrative penalties as prescribed in the regulations on administrative offenses in the field of competition.

Chapter III

AUTHORITY AND PROCEDURES FOR ADMINISTRATIVE PENALTIES

Section 1

AUTHORITY TO IMPOSE ADMINISTRATIVE PENALTIES

Article 17. Authority of agencies handling violations.

The authority to apply administrative measures by agencies handling violations as stipulated in Clause 3, Article 200 of the Intellectual Property Law is specified as follows:

1. The Science and Technology Inspection Agency has the authority to handle administrative violations related to industrial property occurring in production, business, exploitation, advertising, circulation, except for violations occurring in the export and import of goods.

2. The Market Management Agency has the authority to handle administrative violations related to industrial property occurring in the circulation of goods and commercial trade in the market.

3. The Customs Agency has the authority to handle administrative violations related to industrial property occurring in the export and import of goods.

4. The Public Security Agency has the authority to detect, verify, collect information and evidence of administrative violations related to industrial property and provide such information and evidence to the agencies handling violations as stipulated in Clause 1, Clause 2, and Clause 3 of this Article, and to handle administrative violations related to industrial property.

5. Provincial People's Committees and District People's Committees have the authority to handle administrative violations related to industrial property occurring at the local level where the fines, forms of punishment, and remedial measures applicable to such violations exceed the authority of the agencies stipulated in Clause 1, Clause 2, and Clause 3 of this Article.

Article 18. Authority to impose administrative penalties for violations of industrial property rights

1. Industrial property inspection officers under the Ministry of Science and Technology, provincial and centrally-administered city Science and Technology Departments performing their duties have the right to impose penalties on violations prescribed in Chapter II of this Decree including:

a) Warning or imposing a fine up to 200,000 VND;

b) Confiscating infringing objects and means with a value up to 2,000,000 VND;

c) Applying remedial measures as provided in point a and c of Clause 5, Article 3 of this Decree.

2. The Heads of Science and Technology Departments have the authority to impose penalties on violations prescribed in Chapter II of this Decree including:

a) Warning or imposing a fine up to 20,000,000 VND;

b) Applying supplementary forms of punishment as provided in points a, c, and e of Clause 4, Article 3 of this Decree;

c) Applying remedial measures as provided in points a, b, c, d, e, and g of Clause 5, Article 3 of this Decree.

3. The Heads of the Ministry of Science and Technology's Inspection Department have the authority to impose penalties on violations prescribed in Chapter II of this Decree including:

a) Warning or imposing a fine up to the maximum limit of the penalty range prescribed in this Decree;

b) Applying supplementary forms of punishment as provided in Clause 4, Article 3 of this Decree;

c) Applying remedial measures as provided in Clause 5, Article 3 of this Decree.

4. Chairpersons of District People's Committees have the authority to impose penalties on violations prescribed in Chapter II of this Decree including:

a) Warning or imposing a fine up to 20,000,000 VND;

b) Applying supplementary forms of punishment as provided in points a and c of Clause 4, Article 3 of this Decree;

c) Applying remedial measures as provided in points a, b, c, d, e, and g of Clause 5, Article 3 of this Decree.

5. Chairpersons of Provincial People's Committees have the authority to impose administrative penalties as prescribed in Article 30 of the Administrative Offense Handling Ordinance on violations prescribed in Chapter II of this Decree including:

a) Warning or imposing a fine up to the maximum limit of the penalty range prescribed in this Decree;

b) Applying supplementary forms of punishment as provided in points a, c, and e of Clause 4, Article 3 of this Decree;

c) Applying remedial measures as provided in Clause 5, Article 3 of this Decree.

6. Team Leaders of Customs Control Teams under the General Customs Department, Chiefs of Customs Branches, and Chiefs of Provincial Customs Departments have the authority to impose penalties on violations related to industrial property concerning the export and import of goods according to the authority stipulated in Clause 2 and Clause 3 of Article 34 of the Administrative Offense Handling Ordinance.

7. Team Leaders of Market Management Teams, Chiefs of Market Management Branches, and Chiefs of the General Market Management Department have the authority to impose penalties on violations related to industrial property concerning the circulation of goods and commercial trade in the market according to the authority stipulated in Clauses 2, 3, and 4 of Article 37 of the Administrative Offense Handling Ordinance.

8. Chiefs of Economic and Administrative Crime Investigation Departments under Provincial Public Security Departments, and Chiefs of the General Economic and Administrative Crime Investigation Department have the authority to impose penalties on violations related to industrial property according to Clause 5 and Clause 7 of Article 31 of the Administrative Offense Handling Ordinance.

Article 19. Principles for Determining Competence to Impose Administrative Penalties

1. The Chairman of the People's Committee at the provincial level and the Chairman of the People's Committee at the district level have the competence to impose administrative penalties for violations in the field of industrial property within their respective localities.

2. The Inspector General and specialized science and technology inspectors of the agencies: Ministry of Science and Technology, Department of Science and Technology have the competence to impose administrative penalties for violations in the field of industrial property under the scope of management of the Ministry of Science and Technology and the Department of Science and Technology.

In cases where the violation exceeds the competence of the Inspector General of the Department of Science and Technology, the violation file shall be transferred to the Chairman of the People's Committee at the provincial level to impose administrative penalties according to his competence.

Section 2

PROCEDURES FOR IMPOSING PENALTIES

Article 20. Receiving and Considering Applications for Handling Violations

1. Receiving applications for handling violations:

Upon receipt of an application for handling violations, the agency responsible for handling violations shall undertake the following tasks:

a) Determine the competence to handle violations as prescribed in Article 19 of this Decree; if the request for handling violations falls within the jurisdiction of another agency, guide the applicant to submit the application to the competent agency;

b) Check and record the list of documents and evidence attached with the application.

2. Considering applications for handling violations:

a) Within ten working days from the date of receiving all necessary documents, the agency responsible for handling violations shall examine the validity of the documents and evidence in the file. The agency may conduct its own inspection and verification of evidence, request the police agency to inspect and verify evidence proving the status of the right holder and the violation, or request an expert opinion when necessary;

If the file meets the requirements, the handling agency shall proceed with the procedures as prescribed to handle the violation of rights.

b) In cases where the documents and evidence provided by the applicant are insufficient to prove the status of the right holder and the violation, the agency responsible for handling violations shall issue a Notice requiring the applicant to supplement documents, evidence, expert conclusions, or explanations regarding the violation within a maximum period of thirty days from the date of issuance of the Notice.

3. The applicant requesting handling of violations may submit an application to the agency with competence prescribed in Article 18 of this Decree to apply preventive measures and ensure penalty imposition according to the following provisions:

a) Requests for applying preventive measures and ensuring penalty imposition can be submitted simultaneously or after the application for handling violations, accompanied by evidence as prescribed in point b, Clause 2 of this Article;

b) The content of the request for applying preventive measures and ensuring penalty imposition must include the commitment of the requester regarding the responsibility for compensating damages caused by the improper application of preventive measures and ensuring penalty imposition to related organizations and individuals;

c) The agency with competence to apply preventive measures and ensure penalty imposition has the responsibility to examine and verify evidence proving that it falls within one of the cases eligible for preventive measures as stipulated in Clause 1, Article 215 of the Intellectual Property Law and decide on the appropriate preventive measure in accordance with Clause 2, Article 215 of the Intellectual Property Law.

In cases where the agency with competence to apply preventive measures and ensure penalty imposition decides to apply these measures without sufficient evidence proving that it falls within one of the cases eligible for preventive measures and ensuring penalty imposition, or applies the measures improperly or not in accordance with the request of the requester, it must compensate for the damage caused to related organizations and individuals in accordance with the law.

Article 21. Refusal to Process Violation Requests

In the following cases, the violation handling agency has the right to issue a Notice refusing the request to process the violation:

1. After the deadline specified in point b, Clause 2, Article 20 of this Decree, the person requesting the processing of the violation does not meet the requirements of the violation handling agency regarding the supplementation and explanation of evidence proving the subject's status and proving the violation.

2. The administrative time limit for handling violations of intellectual property rights has expired according to the provisions of Clause 1, Article 10 of the Administrative Violation Handling Ordinance.

3. The verification results of the violation handling agency or the police show that there is no violation as described in the request for processing the violation.

4. There is a document from the competent authority stating that there is insufficient basis to handle the violation.

5. The person submitting the request for processing the violation has a notification withdrawing the request for processing the violation or a notification that the parties have reached an agreement to resolve the matter through other means.

In cases where the violation involves producing or trading counterfeit goods or geographical indications causing damage to consumers or society, the violation handling agency has the right to apply administrative measures to handle the violation, even if it receives the aforementioned notification.

Article 22. Processing Requests with Disputes or Submitted to the Wrong Competent Authority

1. In cases where the request for processing the violation involves disputes over the subject of rights, the possibility of protection, or the scope of protection of industrial property rights, the agency receiving the request guides the submitter, the right holder, and those with related interests to exercise their right to seek resolution of disputes at the competent authority.

2. In cases where the matter falls within the jurisdiction of another agency, the agency receiving the request for processing the violation transfers the case file to the competent authority for handling.

3. In cases where the violation has criminal characteristics, the agency receiving the request for processing the violation transfers the case file to the competent authority for investigation and prosecution.

Article 23. Coordination in Handling Violations

1. Request for coordination in handling violations:

a) The agency receiving the request for processing the violation is responsible for sending a request for coordination in handling the violation to relevant competent agencies if it involves one of the following situations: the same violation involving industrial property rights but under the jurisdiction of different agencies, or the same violation occurring in multiple areas or regions.

b) The request for coordination in handling the violation must include the following main contents: summary information about the case; summary of the violation and its scope and scale in the locality or field managed by the agency receiving the request; copies of the request for processing the violation and certified copies of accompanying documents and photographs of samples; summary of the examination of the request for processing the violation; recommendations on matters requiring coordination and setting the latest response deadline at fifteen days for the agency receiving the request.

c) The agency receiving the request for coordination in handling the violation is responsible for responding within the set period, clearly stating the reasons for not proceeding with the handling of the violation as requested (if applicable).

2. Utilizing the results of examining and processing requests for handling violations from other agencies:

a) The violation handling agency has the right to use the results of identifying the violation and identifying infringing goods carried out by another competent authority (if available) to ensure consistency in the measures and penalties applied to similar or related violations concerning the same industrial property object of the same right holder.

b) In cases where there are differing opinions or decisions among competent authorities regarding the method, measures, and degree of handling violations, the violation handling agency is responsible for reporting to seek guidance from a higher-level authority.

Article 24. Simplified procedures apply to acts of producing and trading counterfeit goods bearing trademarks or geographical indications.

1. When discovering and having sufficient evidence regarding the production and trading of counterfeit goods bearing trademarks or geographical indications, the authority handling violations has the right to decide to stop the violation, record the violation in a report without needing to follow the procedures stipulated in Article 20 of this Decree.

In cases where there is sufficient evidence proving that one of the situations requiring preventive measures and ensuring administrative penalties as provided for in Clause 1, Article 215 of the Intellectual Property Law applies, the authority handling violations has the right to apply appropriate measures as prescribed in Clause 2, Article 215 of the Intellectual Property Law.

The authority handling violations, when necessary, upon request, has the right to apply preventive measures and ensure administrative penalties as prescribed in Article 215 of the Intellectual Property Law and Article 25 of this Decree.

2. In cases where the evidence regarding counterfeit goods bearing trademarks or geographical indications is not clear, the authority discovering counterfeit goods has the responsibility to inspect, verify, or request the police authority to verify and collect evidence on the violation, and request an industrial property ownership appraisal.

3. The coordination in handling violations and issuing penalty decisions shall be carried out according to the provisions of Article 23 of this Decree.

Article 25. Application of preventive measures and ensuring administrative penalties.

1. The authority to apply preventive measures and ensure administrative penalties as provided for in Clause 2, Article 215 of the Intellectual Property Law belongs to the authorities with the power to handle violations as stipulated in Article 18 of this Decree.

2. The person authorized by the authority applying preventive measures and ensuring administrative penalties as provided for in Clause 1 of this Article has the authority to apply preventive measures and ensure administrative penalties corresponding to the provisions of Clause 1, Article 45, Clause 1, Article 46, Clause 2, Article 47, Clause 2, Article 48, Clause 2, Article 49, and Clause 2, Article 50 of the Administrative Violation Handling Ordinance.

3. The procedure and process for applying preventive measures and ensuring administrative penalties must comply with the provisions of Chapter V of the Administrative Violation Handling Ordinance.

Article 26. Procedures for imposing administrative penalties.

1. Upon discovering a violation, the authorized person imposing the penalty must immediately issue an order to stop the violation, clearly explain to the organization or individual violating the regulations on administrative penalties in the field of intellectual property rights and related laws on intellectual property rights, and require the organization or individual to comply with the relevant laws.

2. In cases where the violation requires a warning penalty, the authorized person imposing the penalty does not need to prepare a violation report but decides on the penalty at the place where the violation occurs, and the warning penalty decision is made in writing.

In cases where the violation requires a fine penalty, except for simple procedures, the authorized person imposing the penalty must prepare an administrative violation report in accordance with Article 55 of the Administrative Violation Handling Ordinance, and the person preparing the report must provide conditions for the individual or organization committing the violation to present their views on the violation.

3. The decision to impose penalties and the content of the penalty decision must comply with the provisions of Article 56 of the Administrative Violation Handling Ordinance.

The penalty decision must be sent to the individual or organization being penalized within three days from the date of signature. In cases where the penalty decision includes additional penalties leading to the need to carry out procedures for establishing, amending, suspending, or revoking the validity of protection certificates, the penalty decision must be sent to the Inspectorate of the Ministry of Science and Technology and the National Office of Intellectual Property for coordination in monitoring and implementation.

4. In cases where a violation is discovered but there is a dispute or complaint about the subject of the right, the possibility of protection, or the scope of protection of intellectual property rights, the authority handling the case requests the parties involved to resolve disputes before the competent authority.

Within ten days from the date of receipt of the final conclusion of the competent authority resolving disputes or complaints, the authorized person imposing the penalty is responsible for concluding on the violation.

Article 27. Confiscation of Evidence and Means of Administrative Violations

1. The measure of confiscating counterfeit goods bearing trademarks, geographical indications, raw materials, materials, and means primarily used for producing and trading counterfeit goods bearing trademarks, geographical indications shall be applied in the following cases:

a) To ensure that evidence is not destroyed, dispersed, altered, or to prevent the possibility of subsequent violations;

b) Organizations or individuals committing violations do not have the ability or conditions to eliminate the elements infringing on rights on goods or intentionally fail to comply with the requirements of the competent authority imposing penalties regarding the removal of elements violating industrial property rights on goods, repairing or supplementing signs or indications on goods, business means;

c) Goods on the market, exported or imported goods containing elements infringing on rights but whose origin, owner, producer, or person bringing them to the market cannot be determined, but there are sufficient grounds to determine that such goods were not produced or brought to the market by the holder of the industrial property right.

2. The procedure for confiscating evidence and means of administrative violations in the field of intellectual property shall follow the provisions set forth in Article 60 of the Ordinance on Handling Administrative Violations.

Article 28. Handling of Confiscated Evidence and Means of Administrative Violations

1. For counterfeit goods bearing trademarks, geographical indications, the competent authority handling the matter shall apply one of the following measures:

a) Confiscate for non-commercial distribution or use according to the provisions of Article 29 of this Decree;

b) Confiscate for destruction according to the provisions of Article 30 of this Decree;

c) Compel the removal of infringing elements and export out of Vietnam for transit counterfeit goods bearing trademarks, geographical indications; compel re-export for imported counterfeit goods bearing trademarks, geographical indications.

If it is not possible to apply the measure of removing infringing elements, then apply the provisions at point a and point b, Clause 1 of this Article.

2. Raw materials, materials, and means having the sole function of producing and trading infringing goods, providing infringing services, or actually being used solely for that purpose shall be considered as raw materials, materials, and means primarily used for producing and trading infringing goods.

Article 29. Compulsory Non-Commercial Distribution or Use

1. Compulsory non-commercial distribution or use of infringing goods must meet the following conditions:

a) The goods have usable value;

b) Infringing elements have been removed from the goods;

c) Non-commercial distribution or use, prioritizing humanitarian, charitable purposes, or serving social interests;

d) The recipient for non-commercial distribution or use is not a potential customer of the rights holder.

2. The provisions of Clause 1 of this Article also apply to raw materials, materials, and means primarily used for producing and trading infringing goods.

Article 30. Compulsory Destruction

The measure of compulsory destruction of infringing goods, raw materials, materials, and means primarily used for producing and trading infringing goods shall be applied when the conditions for applying the compulsory non-commercial distribution or non-commercial use measures as stipulated in Article 29 of this Decree are not met.

Article 31. Enforcement of penalty decisions

1. In cases where more than ten days have passed since the organization or individual subject to punishment received the penalty decision without voluntarily complying with it, the authority with the power to impose penalties shall issue a decision to enforce the penalty decision compulsorily.

2. The enforcement of penalty decisions, compulsory enforcement of penalty decisions, and the statute of limitations for administrative violation decisions shall be carried out in accordance with the provisions of Articles 64, 65, 66, 67, 68, and Article 69 of the Administrative Violation Handling Ordinance.

Chapter IV

COMPLAINTS, REPORTS AND VIOLATION HANDLING

Article 32. Complaints against administrative violation penalty decisions

Individuals, organizations, or their lawful representatives have the right to file complaints regarding administrative violation penalty decisions concerning industrial property rights as stipulated in Article 18 of this Decree. The complaint procedures and resolution thereof shall be implemented according to the provisions of Articles 118 and 119 of the Administrative Violation Handling Ordinance. Filing a complaint against an administrative violation penalty decision does not suspend the enforcement of the administrative violation penalty decision concerning industrial property rights.

Article 33. Handling of authorities imposing administrative penalties

Authorities imposing administrative penalties in the field of industrial property who violate regulations on administrative penalties shall be handled in accordance with the provisions of Article 121 of the Administrative Violation Handling Ordinance.

Article 34. Handling of violations by those subject to administrative penalties in the field of industrial property

Those subject to administrative penalties in the field of industrial property who commit violations during the execution of the penalty decision or engage in other violations shall be handled in accordance with the provisions of Article 122 of the Administrative Violation Handling Ordinance.

Chapter V

IMPLEMENTING PROVISIONS

Article 35. Transitional Provisions

1. Provisions on handling acts infringing upon patent rights under this Decree also apply to acts infringing upon utility model rights protected under the Civil Code 1995 and Decree No. 63/CP dated October 24, 1996 of the Government detailing regulations on industrial property, amended and supplemented by Decree No. 06/2001/NĐ-CP dated February 1, 2001.

2. Provisions on handling acts infringing upon geographical indication rights under this Decree also apply to acts infringing upon rights to the name of origin of goods protected under the Civil Code 1995 and Decree No. 63/CP dated October 24, 1996 of the Government detailing regulations on industrial property, amended and supplemented by Decree No. 06/2001/NĐ-CP dated February 1, 2001.

Article 36. Effective Date

1. This Decree takes effect fifteen days from the date of publication in the Official Gazette.

2. This Decree replaces Decree No. 12/1999/NĐ-CP dated March 6, 1999 of the Government on administrative penalties in the field of industrial property.

a) Acts of violation that were recorded in administrative violation reports before the issuance of this Decree shall be subject to penalties according to the provisions of Decree No. 12/1999/NĐ-CP.

b) Acts of violation that were recorded in administrative violation reports during the period when this Decree was issued but had not yet taken effect shall be subject to penalties according to Decree No. 12/NĐ-CP if the fine amount specified in this Decree is higher than that in Decree No. 12/1999/NĐ-CP.

3. This Decree replaces the relevant provisions on counterfeit goods related to trademarks, design patents, origin, and source of goods at points 2.4 and 4.1 Part III of Circular Joint Circular No. 10/2000/TTLT-BTM-BTC-BCA-BKHCNMT dated April 27, 2000 of the Ministry of Trade - Ministry of Finance - Ministry of Public Security - Ministry of Science, Technology and Environment guiding the implementation of Directive No. 31/1999/CT-TTg dated October 27, 1999 of the Prime Minister on combating the production and sale of counterfeit goods.

Article 37. Responsibility for Implementation

1. The Minister of Science and Technology, the Minister of Trade, the Minister of Public Security, and the Minister of Finance within the scope of their management functions shall be responsible for detailing, guiding, organizing the implementation, and supervising the enforcement of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees directly under the central government shall be responsible for enforcing this Decree./.