Circular No. 11/2015/TT-BKHCN detailing and guiding the implementation of certain provisions of Government Decree No. 99/2013/NĐ-CP dated August 29, 2013 on administrative penalties for violations in the field of intellectual property.

CIRCULAR

Detailed regulations and guidance on implementing certain provisions of Decree No. 99/2013/NĐ-CP dated August 29, 2013 of the Government on administrative penalties in the field of intellectual property

Pursuant to the Law on Handling Administrative Violations 2012;

Pursuant to the Intellectual Property Law 2005; the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law 2009 (hereinafter referred to as the Intellectual Property Law);

Pursuant to Decree No. 81/2013/NĐ-CP dated July 19, 2013 of the Government detailing certain provisions and measures for implementing the Law on Handling Administrative Violations;

Pursuant to Decree No. 99/2013/NĐ-CP dated August 29, 2013 of the Government on administrative penalties in the field of intellectual property;

Pursuant to Decree No. 103/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding implementation of certain provisions of the Intellectual Property Law concerning industrial property; Decree No. 122/2010/NĐ-CP dated December 31, 2010 amending and supplementing certain provisions of Decree No. 103/2006/NĐ-CP dated September 22, 2006 (hereinafter referred to as Decree No. 103/2006/NĐ-CP amended);

Pursuant to Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding implementation of certain provisions of the Intellectual Property Law concerning protection of intellectual property rights and state management of intellectual property; Decree No. 119/2010/NĐ-CP dated December 30, 2010 amending and supplementing certain provisions of Decree No. 105/2006/NĐ-CP dated September 22, 2006 (hereinafter referred to as Decree No. 105/2006/NĐ-CP amended);

Pursuant to Decree No. 20/2013/NĐ-CP dated February 26, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

At the proposal of the Inspector General of the Ministry and the Director of the Legal Department,

The Minister of Science and Technology promulgates detailed regulations and guidance on implementing certain provisions of Decree No. 99/2013/NĐ-CP dated August 29, 2013 of the Government on administrative penalties in the field of intellectual property.

PART I
GENERAL PROVISIONS

2. Applicability:

These Circulars detail and guide the implementation of certain provisions of Decree No. 99/2013/NĐ-CP dated August 29, 2013 of the Government on administrative penalties in the field of intellectual property (hereinafter referred to as Decree No. 99/2013/NĐ-CP).

第二条 组织和实施奖励工作的支出水平，如政府第152/2025/NĐ-CP号决定关于分级授权和奖励领域的分权规定

a) Organizations and individuals committing administrative violations in the field of intellectual property;

b) Organizations and individuals with authority to impose administrative penalties in the field of intellectual property;

c) Other related entities involved in handling administrative violations in the field of intellectual property.

1. Individuals committing administrative violations in the field of intellectual property include:

a) Vietnamese citizens or foreigners;

b) Business households established and operating in accordance with business registration laws.

2. Organizations committing administrative violations in the field of intellectual property include:

a) Public service units, political organizations, political-social organizations, political-professional social organizations, social organizations, professional social organizations;

b) Economic organizations established in accordance with the Enterprise Law including: private enterprises, joint-stock companies, limited liability companies, partnerships;

c) Economic organizations established in accordance with the Law on Cooperatives including: cooperatives, cooperative unions;

d) Economic organizations established in accordance with the Investment Law;

đ) Other organizations established in accordance with the law.

Confiscation of objects and means of administrative violations as stipulated in Point a Clause 2 Article 3 and Point a Clause 12 Article 12 Decree 99/2013/NĐ-CP shall be applied to intentional violations and where there is one of the following grounds:

1. When it is necessary to ensure that the objects and means of violation are not destroyed, dispersed, altered, or to prevent the possibility of subsequent violations.

2. Goods for which the violator cannot be identified.

1. The measures to remedy consequences as stipulated in Point a Clause 3 Article 3 Decree 99/2013/NĐ-CP shall be implemented as follows:

a) Compelling the removal of elements of violation shall be applied to objects and means of violation that are products, goods, signs, business means, transaction documents bearing marks of infringement on industrial property rights or misleading trade descriptions.

The method of removal may be carried out by one or more methods such as: removing, dismantling, cutting, erasing, grinding, or other appropriate methods to remove elements of violation from the objects and means of violation.

b) Compelling the change of domain name information or returning the domain name shall be applied when the party requesting the handling of the violation and the party being requested to handle the violation fail to reach an agreement as provided for in Clause 2 Article 27 Decree 99/2013/NĐ-CP and the party being requested to handle the violation does not cease the act of registering, holding, or using the infringing domain name.

c) Compelling the change of company name, removing elements of violation from the company name shall be applied when the party being requested to handle the violation does not cease the act of using the infringing company name or does not proceed with the procedure to change the infringing company name according to the notification of the business registration authority or according to the agreement of the parties.

2. Compelling the destruction of goods, objects, and means of violation as stipulated in Point d Clause 3 Article 3 Decree 99/2013/NĐ-CP shall be applied to:

a) Counterfeit goods or goods bearing false geographical indications; raw materials, materials, means mainly used to produce counterfeit goods or goods bearing false geographical indications; labels, items bearing counterfeit trademarks or geographical indications; labels, items bearing elements of violation;

b) Goods that have lost their utility value;

c) Goods harmful to human health, animals, plants, and the environment;

d) Goods where the elements of infringement cannot be removed from the goods or the removal does not ensure a thorough prevention of the violation or cannot apply other remedial measures.

3. For goods in violation, raw materials, means mainly used to produce goods in violation, objects, and means of violation, the competent authority shall decide on appropriate remedial measures based on the nature, characteristics of the goods, and specific circumstances of the case, taking into account the opinions of the right holders, the party requesting the handling of the violation, and related organizations and individuals.

After the organization or individual violating has removed elements of violation from the goods, the authority handling the violation may:

a) Allow the organization or individual violating to utilize the goods, raw materials to produce other goods or allow distribution, use without profit-making and without affecting the exploitation capacity of the right holder, prioritizing humanitarian, charitable purposes or serving social interests; or

b) Sell at auction to be deposited into the state treasury or other measures proposed and agreed upon by the relevant parties in accordance with Clause 4 Article 29 Decree 105/2006/NĐ-CP amended.

4. Compelling the return of unlawful profits obtained from implementing the administrative violation as stipulated in Point h Clause 3 Article 3 Decree 99/2013/NĐ-CP shall be applied when there are valid invoices, documents, materials proving that the organization or individual has committed the violation (with quantities and values of the violated goods attached) and the violated goods have been discovered up to the time of inspection and examination.

The amount of unlawful profits shall be deposited into the State Treasury similar to the procedure for depositing fines under the administrative penalty decision. In cases where the competent authority imposing the penalty has a temporary collection account opened at the State Treasury, the aforementioned proceeds shall be deposited into the temporary collection account of the competent authority imposing the penalty. Periodically, the competent authority handling the violation shall be responsible for depositing back to the State Treasury in accordance with the provisions of the law.

5. Individuals and organizations committing administrative violations must bear all costs for implementing measures to remedy consequences as stipulated in Article 85 of the Law on Handling Administrative Violations.

1. The determination of the total value of goods and services in violation at the time of administrative violation as prescribed in Chapter II of Decree 99/2013/NĐ-CP shall be calculated according to the following formula:

The total value of goods and services in violation equals ( = ) the quantity of goods or volume of service in violation multiplied ( x ) by the unit price of goods or service in violation at the time of administrative violation.

2. The determination of the value of goods and services in violation shall comply with the provisions of Clause 1 of Article 4 of Decree 99/2013/NĐ-CP.

In cases where there is evidence indicating that the listed price or the price stated on the contract or sales invoice or import declaration as stipulated in Point a of Clause 1 of Article 4 of Decree 99/2013/NĐ-CP is not truthful, the competent authority shall apply the next priority price as prescribed in Points b and c of Clause 1 of Article 4 of Decree 99/2013/NĐ-CP.

3. In cases where there is no basis for applying the provisions of Clause 2 of this Article, the person authorized to handle the case may issue a decision to temporarily detain the evidence of violation and establish an Appraisal Board as prescribed in Clause 3 of Article 4 of Decree 99/2013/NĐ-CP.

4. In cases where at the time of inspection, the tangible evidence of goods or services in violation cannot be found to serve as the basis for determining the penalty range and the authority to impose penalties, but there is evidence proving that organizations or individuals have committed violations and are still within the statute of limitations for punishment, the competent authority shall apply Clause 14 of Article 11, Clause 11 of Article 12, and Clause 14 of Article 14 of Decree 99/2013/NĐ-CP to impose penalties.

1. The amount of illegal profit obtained from committing administrative violations is the benefit gained by organizations or individuals from committing administrative violations, including:

a) Money;

b) Valuable papers;

c) Other assets.

2. Determination of the amount of illegal profit in the form of money:

a) The basis for determining the amount of money obtained by organizations or individuals in violation due to committing administrative violations related to industrial property rights equals ( = ) the quantity of goods or volume of service transferred, sold, smuggled, or destroyed illegally multiplied ( x ) by the unit price.

The quantity of goods or volume of service actually carried out is determined based on the declaration of the organization or individual in violation and the verification by the authorized person.

The unit price is determined based on the documents and certificates of the organization or individual in violation or the market price of similar goods or services.

In cases where the quantity, volume, or unit price cannot be determined, the amount of illegal profit obtained is the entire amount of money received by the organization or individual from the violation.

b) In cases where goods prohibited, contraband, counterfeit, or conditional business services are transferred, sold, smuggled, or destroyed illegally, the amount of money obtained by the organization or individual in violation equals ( = ) the quantity of goods or volume of service transferred, sold, smuggled, or destroyed illegally multiplied ( x ) by the unit price;

c) For other goods or services besides those specified in Point b of this Clause, in cases where they are transferred, sold, smuggled, or destroyed illegally, the amount of money obtained by the organization or individual in violation equals ( = ) the quantity of goods or volume of service transferred, sold, smuggled, or destroyed illegally multiplied ( x ) by the unit price minus ( - ) direct costs constituting the goods or service (if the organization or individual in violation has complete documents and certificates to prove the legality and validity of these costs).

3. In cases where there is no basis for determining the amount of illegal profit in the form of money as prescribed in Clause 2 of this Article, the amount of illegal profit will be determined as valuable papers or other assets.

The amount of illegal profit in the form of valuable papers or other assets shall be determined in accordance with the guidance of the Ministry of Finance regarding the amount of illegal profit obtained from committing administrative violations to be surrendered to the state budget.

Chapter II
ADMINISTRATIVE VIOLATIONS SUBJECT TO ADMINISTRATIVE PENALTIES

Section 1

VIOLATIONS OF THE MANAGEMENT OF INDUSTRIAL PROPERTY ACTIVITIES

1. The act of misleading about the legal status as stipulated in Point b Clause 1 Article 6 of Decree 99/2013/NĐ-CP shall be understood as using information that causes misunderstanding that the object is being protected by industrial property rights in Vietnam although it has not been or has not yet been protected, including cases where the object has already submitted an application for registration but has not yet been granted a certificate of protection or the certificate of protection has been revoked, terminated its validity or expired, for example:

a) Printing on products, goods, packaging of goods, business means, service means misleading indications causing misunderstanding that the product, goods, services bearing trademarks are protected such as: "trademark registered for exclusive protection", "protected trademark", "trademark under the exclusive right of...", including the use of the ® symbol (indicating that the trademark has been granted a Certificate of Trademark Registration);

b) Printing on products, goods, packaging of products, goods misleading indications causing misunderstanding that the product, goods are protected by design patents or invention patents such as: "product, goods protected by exclusive design patent", "product, goods protected by exclusive invention patent", "product produced from a process protected by... invention patent", including the use of the "P" or "Patent" symbol together with numbers (indicating that the product has been granted a Patent - Exclusive Right to Invention);

2. The act of misleading or failing to indicate that goods are produced under a contract for the use of industrial property objects as stipulated in Point c Clause 1 Article 6 of Decree 99/2013/NĐ-CP shall be understood as follows:

a) The misleading act is the act of marking on goods the phrase "produced under a contract for the use of industrial property objects of..." or similar indications, regardless of whether in Vietnamese or foreign languages, but without having legally transferred the right to use the industrial property object as prescribed by law;

b) The act of failing to indicate is the act of not marking on goods, packaging of goods the indication that the goods are produced under a trademark usage contract;

Article 8. Acts violating provisions on representation of industrial property as stipulated in Article 7 of Decree 99/2013/NĐ-CP

a) Performing one or more industrial property representation services as stipulated in Clause 1 Article 151 of the Intellectual Property Law for both the party requesting handling and the party being requested to handle the infringement of industrial property rights in the same case;

b) Performing one or more industrial property representation services as stipulated in Clause 1 Article 151 of the Intellectual Property Law for the party implementing opposition procedures, requesting revocation, termination of the validity of certificates of protection, handling violations while simultaneously representing the applicant, owner of the certificate of protection in procedures related to establishing, exercising, and protecting industrial property rights in the same case;

a) Intentionally delaying the submission of applications for registration of industrial property, requests for handling violations, and other documents and files during the establishment, exercise, and protection of industrial property rights of the represented party without legitimate reasons;

b) Providing inaccurate information about the legal status of certificates of protection, applications for registration of industrial property, requests for handling violations, and other documents and files during the establishment, exercise, and protection of industrial property rights affecting the rights and legitimate interests of the certificate holder;

c) Submitting documents related to the establishment and protection of industrial property rights without legal basis to slow down the resolution process of competent authorities, causing material and spiritual damage to the person concerned;

d) Not performing or performing incorrectly the obligations of an industrial property representative;

3. Serious misconduct of an industrial property representative during practice causing damage to the interests of the state or society as stipulated in Point b Clause 4 Article 7 of Decree 99/2013/NĐ-CP shall be understood as one of the following acts:

a) Registering a confidential invention abroad without permission from the competent authority;

b) Disclosing information and documents not permitted to be disclosed, information classified as state secrets during the performance of industrial property representation services;

c) Renting or leasing the professional certificate for industrial property representation services.

Article 9. Acts violating the provisions on industrial property appraisal set forth in Article 8 of Decree 99/2013/NĐ-CP

1. The act of disclosing confidential information obtained during the appraisal without permission from the relevant parties as stipulated in Point b Clause 3 Article 8 of Decree 99/2013/NĐ-CP shall be understood as one of the following acts:

b) Disclosing information and documents not yet permitted to be published, information classified as state secrets or business secrets provided by the competent authority or the party requesting the appraisal for the purpose of conducting the appraisal.

2. The act of taking advantage of the status of an appraiser and appraisal activities for personal gain as stipulated in Point a Clause 4 Article 8 of Decree 99/2013/NĐ-CP shall be understood as one of the following acts:

a) Taking advantage of the status of an appraisal organization, appraiser, or participation in appraisal activities to influence organizations or individuals involved with the aim of obtaining illegal benefits;

b) Conducting activities outside the scope of appraisal specified in the Business Registration Certificate or Appraisal Activity Registration Certificate to obtain illegal benefits.

3. The act of intentionally issuing an appraisal conclusion that does not correspond to the truth as stipulated in Point b Clause 4 Article 8 of Decree 99/2013/NĐ-CP shall be understood as the act of intentionally issuing an appraisal conclusion without legal basis, not corresponding to the information and documents provided for the appraisal.

1. An act considered to meet the conditions prescribed in Clauses 1, 2, and 3 of Article 5 of Decree 105/2006/NĐ-CP amended and such act occurs on the Internet targeting consumers or users in Vietnam shall also be concluded as an act infringing industrial property rights and subject to administrative penalties as prescribed in Articles 10, 11, and 12 of Decree 99/2013/NĐ-CP.

2. The owner of a national domain name who hires another organization or individual to perform the act mentioned in Clause 1 of this Article shall also be considered an act infringing industrial property rights and subject to penalties as prescribed in Articles 10, 11, and 12 of Decree 99/2013/NĐ-CP.

When determining acts of infringement on patent rights, the provisions of Articles 5 and 8 of Decree 105/2006/NĐ-CP (as amended) must be followed and certain guidelines as follows:

1. A product/part of a product/process under examination shall be deemed identical or equivalent to a product/part of a product/process protected under a certain point (independently or dependently) of the patent protection claim if all basic technical features listed in that point are present in the examined product/part of a product/process in an identical or equivalent form, wherein:

a) Two technical features are deemed identical if they have the same nature, purpose, method of achieving the purpose, and relationship with other features listed in the protection claim;

b) Two technical features are deemed equivalent if they have similar nature or can substitute each other, have the same purpose and method of achieving the basic purpose.

2. If the examined product/part of a product/process does not contain at least one basic technical feature listed in a certain point of the protection claim, then the examined product/part of a product/process shall be deemed non-identical/non-equivalent to the protected product/part of a product/process under that point.

When determining acts of infringement on industrial design rights, the provisions of Articles 5 and 10 of Decree 105/2006/NĐ-CP (as amended) must be followed and certain guidelines as follows:

When determining acts of infringement on trademark rights, the provisions of Articles 5 and 11 of Decree 105/2006/NĐ-CP (as amended) must be followed and certain guidelines as follows:

a) The scope of protection of the overall trademark and its components; the degree of similarity between the sign and the trademark in terms of overall appearance and with the distinguishing components of the trademark, particularly those components that create a strong impression on consumers;

b) The functional and utilitarian relationship between goods/services; commercial practices in buying, selling, selecting, and using goods/services; conditions, methods, locations for displaying, distributing, marketing, promoting, and selling goods/services;

c) The characteristics and level of consumer attention when choosing and purchasing goods/services;

d) Other criteria such as: actual use and protection of similar trademarks for the same type of goods; the influence of other factors creating associations about the relationship between the goods/services under examination and the protected goods/services;

đ) Evidence of consumer confusion resulting from the use of the sign can be used to support the assessment of the likelihood of confusion but is not a mandatory condition for concluding the likelihood of confusion from the use of the sign.

a) In cases where a sign identical to a trademark is used for goods/services identical to those specified in the Certificate of Trademark Registration or the Certificate of International Trademark Registration protected in Vietnam or published in the World Intellectual Property Organization's International Trademark Register, there is no need to consider the likelihood of consumer confusion regarding the goods/services bearing the trademark;

b) In cases where a sign identical to a trademark is used for similar or related goods/services; or a similar sign is used for identical or similar or related goods/services listed in the goods/services categories accompanying the trademark specified in the Certificate of Trademark Registration or the Certificate of International Trademark Registration protected in Vietnam or published in the World Intellectual Property Organization's International Trademark Register, it is necessary to consider the likelihood of consumer confusion regarding the goods/services bearing the trademark.

3. Determining Factors Infringing Famous Trademark Rights:

a) In cases where a sign identical or similar to a famous trademark or a sign in the form of a translation or transliteration of a famous trademark is used for any goods/services, including those not identical, similar, or related to the goods/services listed in the goods/services categories bearing the famous trademark, it is necessary to assess the likelihood of confusion regarding the source of the goods/services or the relationship between the user of the sign and the owner of the famous trademark;

b) In cases where a sign identical or similar to a famous trademark, as provided for in Point a Clause 3 of this Article, does not cause confusion regarding the source of the goods/services but creates a misleading impression among consumers about the relationship between the user of the sign and the owner of the famous trademark, it shall also be considered an act infringing intellectual property rights;

In cases where a famous trademark in Vietnam is recognized through civil litigation procedures or by a decision of the National Office of Intellectual Property, the competent authority may rely on relevant documents to consider recognizing the trademark as famous in Vietnam if such recognition by the aforementioned authorities at the time of requesting the handling of the violation remains appropriate.

When determining acts of infringement on trade name rights, the provisions of Articles 5 and 13 of Decree 105/2006/NĐ-CP (as amended) must be followed and certain guidelines as follows:

1. The basis for considering factors infringing rights to trade names is the scope of protection of the trade name determined based on evidence showing the lawful use of that trade name, including identifying the business subject, business establishment, business activities, and products or services bearing the trade name, specifically as follows:

a) Evidence proving that the trade name was used in the business area (for example, used at places where customers or partners are present or have gained reputation through advertising, marketing, distribution) within the legal business field (recorded in the business registration certificate, enterprise registration certificate, investment registration certificate, business condition certification for businesses with conditional operations, tax code registration, company charter registered with competent authorities, or other legally valid documents);

b) The start date and process of use: the trade name has been and is known to partners and customers through goods, services, and business activities (for example, the trade name is currently used on goods, purchase and sale contracts, order forms, business transaction documents, advertising materials, customs declarations, tax payment receipts, and other transaction documents).

2. The business registration certificate, enterprise registration certificate, investment registration certificate, business condition certification, tax code registration, and company charter are considered evidence proving the legality of business under the trade name. The business establishment name or enterprise name recorded in these certificates shall only be considered a trade name when there are documents proving that such business establishment name or enterprise name is used in actual lawful business activities and meets the conditions for protection as stipulated in Articles 76, 77, and 78 of the Intellectual Property Law.

a) Based on documents and evidence proving the time of establishment and creation of rights, according to the principle that the right to the object which arises and is established earlier shall be protected.

Where all parties involved have evidence proving that their rights were legally established and arise, they shall exercise their rights within the scope and duration of protection without infringing upon the interests of the State, public interest, lawful rights and interests of other organizations and individuals, and without violating other relevant laws;

b) Based on certificates of protection, confirmation from competent authorities, and related documents, the content of legal contracts and agreements between the parties to determine the scope of protection for objects protected simultaneously under different forms of intellectual property;

c) In cases where trade names or trademarks bearing place names are used before geographical indications or corresponding place-name trademarks are granted certificates of protection, and these objects meet the conditions for protection under the law, then using these objects honestly will not be considered a violation as stipulated in points g and h of Clause 2, Article 125 of the Intellectual Property Law.

When determining acts of infringement on geographical indication rights, the provisions of Articles 5 and 12 of Decree 105/2006/NĐ-CP (as amended) must be followed and certain guidelines as follows:

1. The basis for assessing the likelihood of confusion between a sign and a geographical indication may be applied appropriately in a similar manner as the basis for assessing the likelihood of confusion between a sign and a protected trademark.

2. The infringing products or goods may include:

a) Products of the same type bearing a sign identical to the geographical indication produced in a locality within the region covered by the protected geographical indication but not meeting the specific quality requirements of that geographical indication;

b) Products of the same type bearing a sign identical or similar to the geographical indication but not produced in a locality within the region covered by the protected geographical indication, including cases where the product has corresponding parameters regarding quality, production process, and product management;

d) Similar products bearing a sign identical or similar to the geographical indication aiming to exploit the reputation and credibility of the geographical indication and/or cause misleading about the geographical origin of the product, regardless of whether the place of production of the product is within the region covered by the protected geographical indication.

Article 16. Acts of violation concerning labels, trademarks, and geographical indications

1. Acts of violation as stipulated in Article 13 of Decree 99/2013/NĐ-CP shall be applied in cases where organizations or individuals discover labels, trademarks, or products bearing counterfeit trademarks or geographical indications that have not yet been affixed to products but there is sufficient evidence to determine that these labels, trademarks, or products will be affixed to products for release into the market (for example, through purchase contracts, printing contracts, declarations to competent authorities, packaging samples, product samples with counterfeit labels, trademarks, or products being stored, transported, or displayed for sale). 2. Labels, trademarks, and other items specified in Article 13 of Decree 99/2013/NĐ-CP are understood to include manufacturer, distributor, and importer labels intended to be affixed to products, including quality control seals containing elements of violation; product labels; stickers; product packaging; detachable parts of products that cannot be circulated independently, on which counterfeit trademarks or geographical indications are printed, cast, or embossed.

Article 17. Acts of transit of goods infringing industrial property rights

The competent authority handling the transit of goods infringing on industrial property rights shall do so when the owner of the industrial property rights has sufficient grounds to prove that such goods cause damage to the rights holder or consumers in Vietnam.

2. Organizations or individuals engaging in parallel importation shall not be considered acts of infringement of industrial property rights and shall not be subject to administrative penalties.

Article 19. Unfair Competition Acts in the Field of Industrial Property

1. Acts of using misleading trade indicators:

a) The subject entitled to request handling of acts of using misleading trade indicators is a business entity that has widely and consistently used the trade indicators specified in Clause 2, Article 130 of the Intellectual Property Law in lawful business activities in Vietnam, and whose reputation and goods/services bearing such trade indicators are known to consumers.

- "Product label" refers to the written, printed, drawn, photographed version of letters, drawings, images affixed, printed, attached, cast, engraved, carved directly onto the product, product packaging, or other materials attached to the product, product packaging.

- "Business slogan" is a group of words appearing alongside the business name or trademark associated with the product of the business, emphasizing the business purpose or criteria or target customer group of the product.

- "Business symbol" is a distinctive sign, lettering, drawing, shape designed and considered as a symbol of the business used in business activities.

- “Product packaging design” refers to the design and decoration of product packaging, including shape, lines, drawings, letters, numbers, colors, presentation methods, color combinations, arrangement, and combination of the above elements creating a unique impression or characteristic of the product packaging.

d) The subject requesting handling of unfair competition acts involving the use of misleading trade indicators must provide evidence to prove:

The use of such indicators aims to confuse consumers about the business entity, business activities, commercial origin of goods and services, geographic origin, production method, features, quality, quantity, or other characteristics of goods and services, or the conditions for providing goods and services.

2. Acts of registering, holding, or using domain names:

- The business entity has widely and consistently used the commercial indicator, known to many consumers in Vietnam, which may include information on advertising, marketing, exhibition displays; sales revenue; number of products sold; distribution network, joint ventures, joint operations; scale of investment; evaluations by state agencies, mass media, consumer polls, and other information reflecting the reputation of the business entity linked to the commercial indicator in its business activities in Vietnam;

- The party being requested to be processed has used misleading trade marks on goods, packaging, business means, service means, or advertising means.

b) Acts of registering, holding, or using domain names shall be deemed acts of unfair competition in the field of industrial property, except for domain names allocated through auction or selection procedures as stipulated in Point a, Clause 2, Article 48 of the Telecommunications Law, in any of the following cases:

c) The subject requesting handling of acts of registering, holding, or using domain names, which are deemed acts of unfair competition in the field of industrial property, must provide the following evidence:

- Using the national domain name "vn" with a sequence of characters that are identical or similar enough to cause confusion with registered trademarks, trade names, or geographical indications, widely used for advertising, introducing products, offering goods or services, which are identical, similar, or related on electronic information pages where the domain name leads to; causing confusion and taking advantage of or damaging the reputation, fame, or material interests of the owner of the trademark, trade name, or geographical indication; or

- Registering or holding the right to use the national domain name "vn" with a sequence of characters identical to a reputable trademark, trade name, or geographical indication in Vietnam, and there is evidence that the organization or individual registers or holds the right to use the domain name solely for reselling to make profit or to obstruct the owner of the protected trademark, trade name, or geographical indication from registering the domain name;

c) The subject requesting the handling of the act of registering, holding, or using a domain name considered to be unfair competition in industrial property shall provide evidence to prove the following:

- The rights holder has widely and stably used the trademark, geographical indication, or trade name, making it known to consumers in Vietnam for the reputation and fame of the industrial property rights holder and goods or services bearing the trademark, geographical indication, or trade name (which may include information about advertising, marketing, exhibitions; sales revenue; number of products sold; distribution network, joint ventures, partnerships; scale of investment; evaluations by state agencies, mass media, consumer polls, and other information reflecting the reputation and fame of the business, goods, or services bearing the trademark, geographical indication, or trade name);

- For the act of using a domain name considered an unfair competition act regarding industrial property rights: the requesting party must prove that the party being requested to be processed has used the domain name on the Internet for advertising, introducing products, offering goods or services that are identical, similar, or related, causing damage to the reputation, fame, or material interests of the owner of the protected trademark, trade name, or geographical indication; and the party being requested to be processed continues to use the confusing trademark, trade name, or geographical indication through the domain name despite having been notified by the owner of the trademark, trade name, or geographical indication to stop using it.

For the act of registering or holding the right to use a domain name considered an unfair competition act regarding industrial property rights: the requesting party must prove that the party being requested to be processed has registered but not used a domain name containing characters identical to widely used and reputable trademarks, trade names, or geographical indications in Vietnam; and there is evidence that the party being requested to be processed registers or holds the right to use the domain name solely for reselling to make profit or to obstruct the owner of the protected trademark, trade name, or geographical indication from registering the domain name.

- The party being requested to be processed does not have legitimate rights or interests in the registered trademark, geographical indication, or trade name of the rights holder.

Article 20. Reuse, repair, recycling of products and product packaging

In cases where organizations or individuals reuse, repair, or recycle products or product packaging bearing trademarks, trade names, or geographical indications that have been put on the market by the rights holder to create another product, such actions are also considered acts of infringing industrial property rights or unfair competition if such use causes confusion among consumers about the commercial origin of the product, the business entity, business activities, or characteristics of the product according to the corresponding provisions on acts of infringing industrial property rights and unfair competition.

This provision does not apply when the reused, repaired, or recycled product or product packaging clearly indicates this fact and removes any signs that could confuse consumers about the commercial origin of the product, the business entity, business activities, or characteristics of the product according to the corresponding provisions on acts of infringing industrial property rights and unfair competition.

Business means as defined in Clause 15, Article 11 and Point b, Clause 15, Article 14 of Decree 99/2013/NĐ-CP shall be understood as any means attached or containing protected industrial property objects or trade marks and used to serve business activities (for example: electronic information pages, introduction materials, business cards, transportation means, and decorative items within business premises).

The power of attorney accompanying the petition requesting violation processing must meet the conditions stipulated in Article 23 of Decree 99/2013/NĐ-CP and note the following situations.

1. In cases where the original delegation document includes the content of delegating the procedure for protecting industrial property rights that have been submitted in previous files to the same authority handling violations, the right holder shall submit a copy and refer to the original delegation document.

2. In cases where the original delegation document includes the content of delegating the procedure for protecting industrial property rights that have been submitted to the National Office of Intellectual Property or other competent authorities, the right holder shall submit a certified copy with confirmation from the authority holding the original delegation document.

a) Copies of certificates, protection documents, certificates, and other documents are considered valid if the right holder presents the original for comparison or a certified copy from a competent authority or a copy confirmed by the issuing authority. The officer receiving the file shall sign to confirm the copy compared with the original and there is no need for certification from a notary office or the issuing authority of the certificates, protection documents, and certificates.

b) The explanation provided by the right holder (regarding revenue, reputation, advertising, widespread use evidence, copies of certificates, protection documents from other countries) is considered valid if it includes a commitment to legal responsibility for the content and information of the explanation, and the signature and stamp (if any) of the right holder or their authorized representative. If the explanation consists of multiple pages, the right holder must sign each page or affix a cross-stamp on the pages (if any).

This provision also applies correspondingly to documents provided by the party requested to handle the violation.

a) Documents proving ownership of trade names are those documents and physical evidence proving the prior and lawful use of trade names in business areas meeting the conditions for protection stipulated in Articles 76, 77, and 78 of the Intellectual Property Law;

b) Documents proving ownership of trade secrets are those documents proving organizations or individuals legally possess and have implemented measures to protect information considered as trade secrets according to Articles 84 and 85 of the Intellectual Property Law;

c) In cases where the industrial property usage contract, collective trademark regulation, or geographical indication license does not contain provisions limiting the right to request handling of violations of the user, such person may carry out the procedures for requesting handling of violations as prescribed in Decree 99/2013/NĐ-CP, provided that the owner of the right does not object to the implementation of such procedures in writing.

In addition to the documents and evidence proving the subject's status according to Article 24 of Decree 105/2006/NĐ-CP amended, the right holder may submit copies of documents proving the subject's status and present the original for verification.

a) One or more violations related to one or more industrial property objects carried out by the same organization or individual;

b) One or more violations related to one industrial property object carried out by multiple organizations or individuals;

c) In cases where the right holder submits an application to request handling of one or more organizations or individuals committing violations in the same locality, the right holder only needs to submit one application for handling to the competent authority in that locality;

d) In cases where the right holder submits an application to request handling of one or more organizations or individuals committing violations in different localities, the right holder may submit applications for handling to the competent authority in each locality or submit one application to the central authority with jurisdiction over violations in those localities.

1. In cases where petitions requesting violation processing contain sufficient evidence regarding counterfeit goods infringing industrial property rights, goods infringing trademark, geographical indication, or design rights, the competent authority shall cooperate with the right holders to conduct inspections, investigations, and handle violations according to Point d Clause 2 Article 25 of Decree 99/2013/NĐ-CP.

2. In cases where petitions requesting violation processing lack sufficient evidence regarding counterfeit goods infringing industrial property rights, goods infringing trademark, geographical indication, or design rights; petitions requesting violation processing concerning patents, layout-designs of integrated circuits, trade names, business secrets; or petitions requesting handling of unfair competition acts involving industrial property, the competent authority may request the parties to provide information, evidence, and explanations within ten days from the date specified in the notification. If there are valid reasons, the parties may submit a written request to the competent authority for an extension of the response time, but not exceeding thirty days from the initial notification date, according to Point c Clause 2 Article 25 and Point a Clause 3 Article 25 of Decree 99/2013/NĐ-CP.

a. In cases where the parties have provided explanations as requested by the competent authority, but new circumstances or evidence emerge in the case, the competent authority may require the parties to provide additional explanations, rebuttal explanations, and supplementary evidence according to Clause 6 Article 26 of Decree No. 99/2013/NĐ-CP within the corresponding time frame specified above.

The parties may provide the competent authority handling violations with written expert opinions from state management agencies on intellectual property, conclusions of intellectual property appraisals, decisions on dispute resolution, decisions on handling violation cases related or similar issued by competent authorities, and other documents and evidence to prove their claims, arguments, explanations, and clarify the circumstances of the case.

b. In cases where the explanations provided by the parties do not clarify the circumstances of the case and at the request of one or more parties, the competent authority may organize direct meetings with the parties. The minutes of the meeting recording the opinions of the parties shall be considered as evidence for resolving the case.

c. In cases where the parties reach an agreement on measures to resolve the case that comply with intellectual property laws and do not affect the rights and interests of third parties, consumers, and society, the competent authority shall record the agreement and issue a notice to stop the case resolution process according to Clause 2 Article 27 and Point d Clause 2 Article 28 of Decree 99/2013/NĐ-CP.

3. In cases where petitions requesting violation processing are submitted to multiple competent authorities for the same violation act, the authority that first accepts the petition shall have jurisdiction to resolve it. The right holder has the responsibility to notify other competent authorities about the acceptance of the petition for resolution.

a. Before accepting the case, if the authority receiving the petition becomes aware that another competent authority or Court has accepted the case, the authority receiving the petition shall issue a notice refusing to accept the petition.

b. After accepting the case but before conducting inspections, investigations, and handling violations, if the authority accepting the petition becomes aware that another competent authority has conducted inspections, investigations, and handled violations, or that the Court is currently handling the case, the authority accepting the petition shall issue a notice refusing to proceed with the violation handling procedures.

c. After conducting inspections and investigations, if the authority handling violations becomes aware that another authority has conducted inspections and investigations, the authority handling violations shall request relevant authorities to cooperate in handling and unify for one authority to carry out the penalty procedures. If another authority has already handled the violation but during the inspection and investigation, it is found that the organization or individual is still committing the violation, the authority handling violations shall handle the violation with aggravating circumstances of recidivism.

d. During the handling of violations, if criminal offenses are discovered, the authority handling violations shall transfer the case file to the competent investigative authority where the violation occurred.

1. Where there is a request from the subject of industrial property rights or from the authority responsible for resolving disputes or imposing penalties for infringements according to Clause 5, Article 26 of Decree No. 99/2013/ND-CP, the competent authority handling the infringement shall provide copies of the minutes, documents, samples, photographs related to the content of the infringement handling, provided that such provision of information and documents does not affect the effectiveness of the case handling and does not fall under the cases of confidentiality as prescribed by law.

2. Where there is a complaint requesting the handling of infringements as stipulated in Article 24 of Decree No. 99/2013/ND-CP, the competent authority handling the infringement shall send the conclusion document, decision on penalty, notification of refusal or suspension of infringement handling to the organization or individual requesting the handling of the infringement in accordance with the provisions of the law.

1. The Intellectual Property Office, the Institute of Intellectual Property Science, and other competent authorities handling the infringement of industrial property rights shall coordinate in handling infringements when receiving requests for coordination in handling infringements as prescribed in Clause 1, Article 29 of Decree No. 99/2013/ND-CP.

2. Coordination in handling infringements related to business names violating intellectual property laws shall be carried out in accordance with the joint circular issued by the Ministry of Science and Technology and the Ministry of Planning and Investment.

3. Coordination in handling infringements related to domain names violating intellectual property laws shall be carried out in accordance with the joint circular issued by the Ministry of Science and Technology and the Ministry of Information and Communications.

1. Upon receipt of a complaint requesting the handling of infringements or upon discovering acts infringing industrial property rights related to products and goods affecting health, environment, and social safety as prescribed in Point b, Clause 3, Article 22 of Decree No. 99/2013/ND-CP, the competent authority handling the infringement may require the party being requested to handle the infringement to provide information, documents, evidence for explanation as prescribed in Point a, Clause 3, Article 25 of Decree No. 99/2013/ND-CP or coordinate with the right holder to conduct inspections, verifications, and collection of evidence. Based on reviewing the documents and evidence, the competent authority handling the administrative violation shall issue the following documents:

a) Conclusion document on the infringement of industrial property rights; and/or

b) Decision on administrative penalty within its jurisdiction.

2. Where the competent authority handling the infringement issues a conclusion document on the infringement of industrial property rights as prescribed in Point a, Clause 1 of this Article, the competent authority shall send the conclusion document to the right holder and the infringer and create conditions for the parties to negotiate and reach an agreement within thirty days from the date of receipt of the conclusion document.

a) Where the parties have reached an agreement and proposed a solution in compliance with the regulations on intellectual property rights, without affecting the rights and interests of third parties, consumers, and society as prescribed in Clause 2, Article 27 of Decree No. 99/2013/ND-CP, the competent authority handling the infringement shall issue a document recording the agreement and suspend the resolution of the case;

b) Where the parties fail to reach an agreement within the prescribed time limit, the competent authority handling the infringement shall proceed with inspections, verifications, and handling of the infringement.

3. The competent authority handling the infringement shall send the conclusion document on the violation, the document recording the agreement of the parties, or the decision on administrative penalty to the relevant state management agencies in the industry or field for coordinated handling of the infringement.

1. In cases where disputes arise as provided for in Clause 1, Article 27 of Decree No. 99/2013/ND-CP, the competent authority handling the case may request the state management agency on intellectual property to clarify the legal status of industrial property rights, specifically:

a) Information about ownership, usage rights, transfer of rights concerning the object currently in dispute, complaint, or accusation;

b) The scope of protection of industrial property rights related thereto; the scope and conditions for applying provisions regarding non-infringement of industrial property rights;

c) The possibility of terminating, revoking the validity of certificates of protection, or changing the scope of protection of related industrial property rights.

2. Suspension of procedures for handling violation cases when disputes arise as provided for in Point a, Clause 2, Article 28 of Decree No. 99/2013/ND-CP:

a) The competent authority shall consider suspending the handling of violation cases after accepting a request for handling violations in the following situations:

- Upon receiving a notification from the state management agency on intellectual property that has accepted a request to revoke, terminate the validity of certificates of protection, or complaints about the scope of protection of related industrial property rights concerning the object in the request for handling violations; or decisions of the court to accept cases involving infringement; or complaints or disputes over related industrial property rights concerning the object in the request for handling violations;

- When it is found that the case involves the content of a contractual dispute between parties regarding the use of industrial property objects.

b) Notifications suspending the resolution of the case must clearly state the grounds, reasons, rights, and obligations of the relevant parties and be sent to the party requesting the handling of violations, the party being requested to handle violations, and the competent authority resolving disputes and complaints.

3. The competent authority requests the right holder to explain and commit according to the provisions of Point b, Clause 1, Article 27 of Decree No. 99/2013/ND-CP and considers proceeding with the handling based on the following grounds:

a) The party being requested to handle violations has submitted a request to revoke, terminate the validity of certificates of protection but has not yet been accepted by the competent authority;

b) The party being requested to handle violations has submitted an application for registration of protection of the object mentioned in the request for handling violations at the state management agency on intellectual property but has not yet received a decision granting a certificate of protection;

c) The party requesting the handling of violations requests continued handling and commits to liability for compensation according to the provisions of Point b, Clause 2, Article 32 of Decree No. 99/2013/ND-CP in the event that the administrative penalty decision is amended, revoked, or suspended in effect according to the decision resolving disputes of the competent authority.

4. Refusal to handle violations:

Before issuing a notification accepting a request for handling violations, if the violation handling agency receives a notification accepting a request from the competent authority as provided for in Point a, Clause 2 of this Article, the violation handling agency issues a Notification refusing to handle violations according to the provisions of Point a, Clause 1, Article 28 of Decree No. 99/2013/ND-CP.

The Head of the Specialized Inspection Team of the Ministry of Science and Technology, the Head of the Specialized Inspection Team of the Department of Science and Technology may use the seal of the leading agency conducting inspections when issuing documents to implement inspection measures as prescribed in Clause 1, Article 53 of the Inspection Law.

1. The subject of industrial property rights that requests the handling of violations may propose the content of technical cooperation support, including information, documents, means of transportation, technical equipment, and human resources for the competent authority to investigate, verify, collect evidence, process infringing objects and means according to Point d Clause 2 Article 25 of Decree 99/2013/NĐ-CP.

2. The costs for investigation, verification, collection of evidence, processing of infringing objects and means in the field of industrial property as stipulated in Clause 1 of this Article shall be considered reasonable expenses for protecting industrial property rights and shall be recorded as production costs according to Decree 103/2006/NĐ-CP amended.

Chapter IV
IMPLEMENTATION

Article 31. Effective Date

This Circular takes effect from August 11, 2015 and replaces Circular No. 37/2011/TT-BKHCN dated December 27, 2011 of the Minister of Science and Technology guiding the implementation of certain provisions of Decree No. 97/2010/NĐ-CP dated September 21, 2010 of the Government on administrative penalties for violations in the field of industrial property.

Article 32. Responsibility for Implementation

1. Heads of units under the Ministry, heads of agencies and organizations, and related individuals are responsible for implementing this Circular.

2. In the course of implementation, if there are difficulties, agencies and units are requested to promptly report to the Ministry of Science and Technology for research and guidance on resolution./.