Joint Circular No. 129/2004/TTLT/BTC-BKHCN guiding the implementation of border control measures related to industrial property rights for exported and imported goods.

JOINT CIRCULAR

Joint Circular No. 129/2004/TTLT-BTC-BKHCN dated December 29, 2004 of the Ministry of Finance and the Ministry of Science and Technology guiding the implementation of measures to control borders regarding intellectual property rights for exported and imported goods

Pursuant to the Law on Customs of June 29, 2001;
Pursuant to the Ordinance on Administrative Violations Handling of July 2, 2002;
Pursuant to Decree No. 77/2003/NĐ-CP dated July 1, 2003 of the Government on the tasks, powers, and organizational structure of the Ministry of Finance;
Pursuant to Decree No. 54/2003/NĐ-CP dated May 19, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology and Decree No. 28/2004/NĐ-CP dated January 16, 2004 of the Government amending and supplementing certain articles of Decree No. 54/2003/NĐ-CP;
Pursuant toArticle 14 of Decree No. 101/2001/NĐ-CP dated December 31, 2001 of the Government detailing the implementation of some provisions of the Law on Customs regarding customs procedures and customs inspection and supervision systems;
Pursuant to Clause 6 of Article 64 of Decree No. 63/CP dated October 24, 1996 detailing regulations on intellectual property rights amended and supplemented by Decree No. 06/2001/NĐ-CP dated February 1, 2001 of the Government;
The Ministry of Finance and the Ministry of Science and Technology jointly issue guidelines for implementing measures to control borders regarding intellectual property rights for exported and imported goods as follows:

Section 1
GENERAL PROVISIONS

1. Definitions

The terms used in this Circular are understood as follows:

1.1. "Intellectual Property Object" refers to inventions, utility models, industrial designs, semiconductor integrated circuit layout designs, trademarks, geographical indications, and other intellectual property objects protected under the law of hereby promulgates

1.2. "Intellectual Property Certificate" refers to the Patent Certificate, Utility Model Certificate, Design Certificate (Design Certificate issued according to the 1989 Intellectual Property Protection Ordinance), Semiconductor Integrated Circuit Layout Design Registration Certificate, Trademark Registration Certificate, and Geographical Indication Right Usage Certificate;

1.3. "Intellectual Property Rights Proof Document" refers to the Decision Recognizing Famous Trademarks, Decision Accepting Trademark Registration According to the Madrid Agreement, and other documents confirming rights over intellectual property objects as prescribed by intellectual property laws; intellectual property objects as prescribed by intellectual property laws;

1.4. "Intellectual Property Owner" refers to the "Certificate Holder", the Intellectual Property Right Owner according to Intellectual Property Rights Proof Documents, and the "Legal Transferee of Intellectual Property Rights";

1.5. "Border Control Measures Regarding Intellectual Property" collectively refer to measures for monitoring and detecting counterfeit trademark goods, temporarily suspending customs procedures for goods suspected of infringing intellectual property rights, inspecting and determining the legal status of intellectual property for suspended goods, handling goods and related parties that infringe intellectual property rights according to this Circular;

1.6. "Goods Infringing Intellectual Property Rights" means exported or imported goods containing elements violating intellectual property laws;

1.7. "Counterfeit Goods" are exported or imported goods, including packaging, labels, stickers bearing trademarks identical or indistinguishable from registered trademarks for similar goods without permission from the trademark owner. Counterfeit goods are a special case of goods infringing trademark intellectual property rights;

1.8. "Applicant" is the person submitting a request for monitoring and detecting counterfeit goods or requesting temporary suspension of customs procedures for exported or imported goods suspected of infringing intellectual property rights;

1.9. "Application" collectively refers to Application for Monitoring and Detecting Counterfeit Goods or Application for Temporary Suspension of Customs Procedures for Exported or Imported Goods Suspected of Infringing intellectual property rights;

1.10 "Shipper" collectively refers to the importer, exporter, or owner of the consignment;

1.11 "Intellectual Property Service Representation Organization" refers to organizations meeting the conditions for conducting intellectual property service representation business as stipulated by intellectual property laws;

Thông tư này áp dụng đối với tổ chức, cá nhân có liên quan đến hoạt động kinh doanh đối tượng thủy sản nuôi chủ lực trên lãnh thổ Việt Nam.

2.1 This Circular applies to all exported and imported goods, except for cases specified in Point 2.2 below;

2.2 This Circular does not apply to exported and imported goods not intended for commercial purposes, including:

a) Humanitarian aid goods;

b) Transit goods;

c) Temporarily imported-reexported goods, temporarily exported-reimported goods serving the work and living activities of Vietnamese and foreign organizations and individuals according to diplomatic exemption standards;

d) Gifts, presents, movable assets within tax-exempt standards; personal luggage within the limit set by the Government.

Section 2:
REQUIREMENTS FOR APPLYING BORDER CONTROL MEASURES REGARDING INTELLECTUAL PROPERTY RIGHTS

REGARDING INDUSTRIAL PROPERTY OWNERSHIP

3. Right to submit applications for applying border control measures regarding intellectual property rights

3.1 The intellectual property owner has the right to submit an application to the Customs Authority to apply border control measures regarding intellectual property rights;

3.2 In the case where the intellectual property owner is the Licensee, the right stipulated in Point 3.1 above only arises if the Licensor has not submitted an application within three months from the date the Licensee requested it and the third party's import or export of goods will cause damage to the Licensee;

3.3 The right to submit an application is evidenced by the following documents:

a) A copy of the Intellectual Property Certificate or other documents proving the intellectual property right being protected in Vietnam; b) A copy of the Registration Certificate of the relevant license contract concerning the intellectual property object, still within its validity period, and other documents proving that the applicant is the Licensee and the Licensor has not submitted an application as prescribed in Point 3

b) A copy of the Certificate of Registration for the license contract related to the industrial property object, which is still within its validity period, and other documents proving that the Applicant is the Licensee and that neither the Licensor nor the Licensee has submitted the application as prescribed in Point 3.2 3. For discounting transferable instruments and other securities:

3.4. The persons entitled to submit applications for the implementation of border control measures concerning industrial property rights shall comply with the following submission requirements:

a. Individuals, legal entities, and other subjects of Vietnam, as well as foreign individuals residing in Vietnam, may directly or authorize an Industrial Property Representation Service Organization to submit the application;

b. Foreign legal entities having representative offices in Vietnam, or foreign individuals or legal entities having production and business establishments in Vietnam, may authorize their representative offices, production and business establishments in Vietnam, or an Industrial Property Representation Service Organization to submit the application; representation, production, or business establishment in Vietnam, or an Industrial Property Representation Service Organization may submit the application;

Foreign individuals not residing in Vietnam and without production and business establishments in Vietnam, or foreign legal entities without legitimate representatives and without production and business establishments in Vietnam, can only authorize an Industrial Property Representation Service Organization to submit the application. conducting business in Vietnam can only authorize an Industrial Property Representation Service Organization to submit the application.

4. Conditions for requesting the implementation of border control measures concerning industrial property rights

4.1. Requests for monitoring and detecting counterfeit goods bearing trademarks shall be made when the owner of the trademark has detailed information about suspected counterfeit goods but lacks specific export/import shipment details, including:

a) Detailed description of the counterfeit goods, images of genuine and counterfeit goods, distinguishing features between genuine and counterfeit goods;

b) List of legitimate exporters and importers; list of suspected exporters and importers of counterfeit goods; sources of goods;

c) Export and import methods; packaging methods; prices of genuine and counterfeit goods;

d) Countries frequently exporting and importing counterfeit goods and other relevant information related to the export and import of counterfeit goods.

4.2. Requests for temporarily suspending customs procedures shall be made for specific export/import shipments suspected of infringing industrial property rights when the owner of the rights has sufficient information to identify such shipments, including:

a) The suspected infringed industrial property right;

b) Name and address of the exporter and importer;

c) Predictive information regarding the time and place of export and import procedures;

d) Detailed description or photographs of the goods infringing industrial property rights;

e) Results of preliminary evidence examination by the competent authority on industrial property rights (if available).

4.3. The owner of the industrial property rights requesting the implementation of border control measures must ensure payment of costs and compensation for damages arising from the temporary suspension of customs procedures if the suspended goods are determined not to infringe industrial property rights.

The conditions for fulfilling the financial obligations mentioned above are:

a) Proof of depositing a guarantee amount into the Customs Authority's temporary account at the State Treasury, equivalent to 20% of the value of the shipment according to the contract price or a minimum of 20 million VND (in cases where the value of the suspected infringing shipment is unknown); or

b) Guarantee document issued by a credit institution or another organization permitted to conduct certain banking activities to ensure the commitment to pay all costs and damages arising from the temporary suspension of customs procedures if the suspended goods are determined not to infringe industrial property rights.

5. Time limit and scope of requests for implementing border control measures concerning industrial property rights

5.1. The owner of the industrial property rights has the right to request the Customs Authority to implement border control measures concerning counterfeit goods for a period of one year and suspected infringing goods for three months from the date of application submission. These periods may be extended by one additional year for counterfeit goods and two additional months for suspected infringing goods, but not exceeding the protection period of the relevant industrial property right and the applicant is responsible for paying extension fees as prescribed.

5.2. The owner of the industrial property rights has the right to request the Customs Authority to implement border control measures within the scope of designated ports under the jurisdiction of one or more Customs Branches or Provincial/City Customs Departments.

6. Application for implementing border control measures concerning industrial property rights

6.1. The application for monitoring and detecting counterfeit goods includes the following documents:

a) Application form (as per Appendix 1 of this Circular);

b) Documents proving the entitlement to submit the application as stipulated in Article 3 of this Circular;

c) Power of attorney for submitting the application (if the application is submitted through an Industrial Property Representation Service Organization or another authorized person as stipulated in Clause 3.4 of this Circular).

d) Information or opinions from the competent authority on industrial property rights regarding preliminary evidence (if available) allowing the Customs Authority to identify counterfeit goods as stipulated in Point 4.1 of this Circular.

6.2. The application for temporarily suspending customs procedures for goods suspected of infringing industrial property rights includes the following documents:

a) Application for temporarily suspending customs procedures (as per Appendix 2 of this Circular);

b) Power of attorney for submitting the application (if the application is submitted through an Industrial Property Representation Service Organization or another authorized person as stipulated in Clause 3.4 of this Circular);

c) Documents proving the entitlement to submit the application as stipulated in Article 3 of this Circular;

d) Preliminary evidence regarding goods suspected of infringing industrial property rights as stipulated in Point 4.2 of this Circular.

e) Proof of financial obligation fulfillment as stipulated in Point 4.3 of this Circular (if applicable).

6.3. In cases where information about counterfeit goods has already been recorded by the Customs Authority, the applicant does not need to submit the documents specified in Points b) and c) of Section 6.2. provided that the number and symbol of the Request for Surveillance and Detection of Counterfeit Goods must be indicated.

7. Competence to Accept Requests for Border Control Measures on Industrial Property Rights

7.1. The Customs Sub-Department shall have the authority to accept requests if the scope of applying control measures is within the ports under its management;

7.2. The Provincial/City Customs Department shall have the authority to accept requests if the scope of applying control measures is within the area managed by the Provincial/City Customs Department;

7.3. The General Department of Customs shall have the authority to accept requests if the scope of applying control measures involves two or more Provincial/City Customs Departments' areas.

8. Handling of Requests

8.1. Within thirty days from the date of receipt of the Request for Surveillance and Detection of Counterfeit Goods or twenty-four working hours from the time of receipt of the Request for Suspension of Customs Procedures, the Customs Authority shall examine the Request according to the following provisions:

a) The head of the Customs Authority receiving the request shall issue a notification accepting the Request and record the information in the Request if the Request does not fall into the cases specified in paragraphs b) and c) of this point.

b) The head of the Customs Authority receiving the Request shall notify the deficiencies of the Request to the Requester and require the Requester to correct these deficiencies within thirty days for the Request for Detection of Counterfeit Goods and three days for the Request for Suspension of Customs Procedures, counted from the date of notification, if the Request falls into the following cases: (i) The Request lacks the required documents as stipulated in Article 6 of this Circular;

(ii) The Request is not made in the prescribed form or does not contain sufficient information as required;

(iii) The Request was not submitted in accordance with Article 3.4 of this Circular;

(iv) The Request does not contain sufficient detailed information for the Customs Authority to detect counterfeit goods or goods suspected of infringing industrial property rights as stipulated in Articles 4.1 or 4.2 of this Circular.

c) The head of the Customs Authority receiving the Request shall issue a notification refusing to accept the Request in the following cases:

(i) The receiving authority does not have the authority to accept the Request as stipulated in Article 7 of this Circular; or

(ii) There is evidence to confirm that the Requester does not have the right to submit the Request as stipulated in Articles 3.1 and 3.2 of this Circular; or

(iii) The Request contains deficiencies and although requested to correct them, the Requester has not corrected them or the corrections are not satisfactory.

8.2. At the request of the

Industrial Property Right Holders, the Customs Authority which has accepted the Request shall record any additional changes related to the recorded information, subject to the payment of fees as prescribed by the Requester. APPLICATION OF BORDER CONTROL MEASURES ON INDUSTRIAL PROPERTY RIGHTS

Section 3:
9. Basis, Time Limit, and Objectives for Applying Border Control Measures on Industrial Property Rights

The Customs Authority shall apply the measures prescribed in this Section based on:

9.1. The Request for Surveillance and Detection of Counterfeit Goods recorded in accordance with Article 8 of this Circular, within one year from the date of submission;

9.2. The Request for Suspension of Customs Procedures for specific export or import consignments with characteristics mentioned in the Request, within three months from the date of submission.

10. Responsibilities for Implementing Border Control Measures on Industrial Property Rights

10.1. The General Department of Customs and the Provincial/City Customs Department which have accepted the Request shall provide the Customs Sub-Departments within the scope of applying control measures as stated in the Request with information about counterfeit goods and goods suspected of infringing industrial property rights and direct the organization of the application of the measures prescribed in this Chapter.

10.2. The Customs Sub-Department which has accepted the Request or received information about the Request from higher authorities shall organize inspections and detection of counterfeit goods and goods suspected of infringing industrial property rights based on the provided information and apply border control measures on industrial property rights according to the procedures prescribed in this Chapter.

11. Inspection, Detection, and Suspension of Customs Procedures for Counterfeit Goods and Suspected Infringing Goods

11.1. Based on the information recorded in the Request for Application of Border Control Measures on Industrial Property Rights which has been accepted, the Customs Sub-Department shall be responsible for implementing inspections and detections of suspected counterfeit goods and infringing industrial property rights.

11.2. Upon discovering suspected counterfeit goods or goods suspected of infringing industrial property rights, the Director of the Customs Sub-Department may temporarily suspend customs procedures and immediately notify the Requester in writing to submit Security Documents to fulfill financial obligations as stipulated in Article 4.3 of this Circular (if not yet submitted) within three working days from the date of the notice.

a) If the Requester fails to meet the above requirements, the Customs Sub-Department shall continue to process customs procedures for the consignment.

b) If the Requester meets the above requirements, the Director of the Customs Sub-Department shall issue a Decision to suspend customs procedures for the consignment and immediately send this Decision to all relevant parties.

The Decision to suspend customs procedures must clearly state the consignment being suspended, the name, address, fax number, and contact phone number of the consignment owner and the Requester, the Industrial Property Right Holder, the reason for suspending customs procedures, and the suspension period.

12. Duration of Suspension of Customs Procedures

12.1. The duration of suspension of customs procedures is ten days from the date of issuance of the Decision.

12.1. The temporary suspension period for customs procedures is 10 days from the date of the Decision.

The Director of the Customs Branch may issue a Decision to extend the suspension period for customs procedures by a maximum of ten days if, during the suspension period for customs procedures, the Applicant requests an extension and submits additional security deposit as stipulated in Point 4.3.a) of this Circular. In cases where the declaration has been registered for acceptance, then suspended for customs procedures for intellectual property rights verification by the customs authority, the tax payment deadline (if applicable) shall be calculated from the date of issuance of the Decision to continue customs procedures for that consignment.

12.2. The time taken by the Customs Authority to determine the legal status of intellectual property rights for goods subject to suspension of customs procedures as provided for in Point 14.5 of this Circular shall not be included in the deadline specified in the above Point 12.1.

13. Inspection and collection of evidence on infringing goods

13.1. Within the suspension period for customs procedures, upon request of the Applicant or the Owner of the consignment, the Customs Authority shall organize for all parties to inspect the consignment subject to suspension of customs procedures to collect evidence and information about such consignment.

13.2. Evidence regarding goods subject to suspension of customs procedures can be collected in the form of detailed descriptions of distinctive features of the goods, photographs of the goods, sampling of the goods or packaging when necessary and appropriate. Evidence to be submitted to the competent authority for appraisal and dispute resolution (as required by the parties) must be sealed by the Customs Branch.

14. Determination of the legal status of intellectual property rights for goods subject to suspension of customs procedures

14.1. Determining the legal status of intellectual property rights for goods subject to suspension of customs procedures involves examining and concluding whether such goods are infringing goods, including determining whether the goods:

a) Contain any infringing elements; and

b) Are goods put on the market in Vietnam or abroad by the Intellectual Property Rights Owner, the authorized person of the Intellectual Property Rights Owner, or the prior user.

14.2. The Customs Authority shall proceed with the procedure to determine the legal status of intellectual property rights for goods subject to suspension of customs procedures if:

a) During the suspension period for customs procedures, the Applicant submits to the Customs Branch an Application for Handling Infringement of Intellectual Property Rights accompanied by evidence, arguments, and documents or a conclusion document from the intellectual property management agency affirming that the goods subject to suspension of customs procedures are infringing goods;

b) Within thirty days from the date of issuance of the Decision to continue customs procedures for the consignment as stipulated in Point 15.1.e) of this Circular, the Applicant submits to the Customs Branch an Application for Handling Infringement of Intellectual Property Rights accompanied by evidence, arguments, and documents or a conclusion document from the intellectual property management agency affirming that the goods subject to suspension of customs procedures are infringing goods;

14.3. The determination of infringing elements of goods must comply with the provisions of intellectual property law.

The basis for determining infringing elements is the evidence, arguments, and documents provided by the Applicant and the Owner of the consignment.

The basis for determining whether goods subject to suspension of customs procedures have been put on the market by the Intellectual Property Rights Owner, the authorized person of the Intellectual Property Rights Owner, or the prior user is the evidence, arguments, and documents proving such fact provided by the Owner of the consignment.

14.4. The Customs Branch has the right to request the Applicant to submit a Request for Appraisal at the State Management Agency on Intellectual Property for an opinion if it cannot determine the legal status of intellectual property rights for goods subject to suspension of customs procedures based on the provided evidence, arguments, and documents.

Evidence, arguments, and documents used by the Customs Branch to conclude on the legal status of goods subject to suspension of customs procedures, provided by either party, shall be made known to and commented upon by the other party.

14.5. The deadline for determining the legal status of intellectual property rights for goods subject to suspension of customs procedures is ten days from the date of submission of the Application for Handling Infringement of Intellectual Property Rights as stipulated in Point 14.2 above. Time allocated for the parties to supplement evidence, arguments, and documents or the time for requesting an appraisal at the National Office of Intellectual Property or local science and technology department at the request of the Customs Branch shall not be counted within the aforementioned deadline.

15. Continuing customs procedures for goods subject to suspension of customs procedures and handling related parties

15.1. The Director of the Customs Branch issues a Decision to continue customs procedures for the consignment subject to suspension of customs procedures in the following cases:

a. Upon expiration of the suspension period for customs procedures set out in the Decision to suspend customs procedures, if the Customs Authority does not receive any of the following documents:

(i) An Application for Handling Infringement of Intellectual Property Rights from the Applicant accompanied by evidence, arguments, and documents or a conclusion document from the intellectual property management agency to determine the legal status of intellectual property rights of the consignment subject to suspension of customs procedures; or

(ii) A document from the competent state management agency or Court confirming receipt of the application for dispute resolution concerning infringement of intellectual property rights related to the consignment subject to suspension of customs procedures.

b) The result of determining the legal status of intellectual property rights confirms that the consignment subject to suspension of customs procedures is not infringing goods;

c) The Customs Authority receives a Decision from the competent authorities resolving disputes over intellectual property rights, which affirms that the consignment subject to suspension of customs procedures is not infringing goods;

d) A decision to temporarily suspend customs procedures that has been suspended or revoked pursuant to a complaint resolution decision;

đ) The applicant withdraws the application for temporary suspension of customs procedures;

e) The goods subject to temporary suspension of customs procedures are suspected of infringing industrial property rights on patents, utility models, industrial designs, semiconductor integrated circuit layout designs, or trade secrets, and the consignor requests to continue customs procedures (provided that samples of the goods must be retained for future processing) while depositing a guarantee amount equal to 20% of the value of the consignment as recorded in the contract into the Customs Authority's temporary account at the State Treasury; 15.2. The Customs Authority shall be exempt from liability for having temporarily suspended customs procedures upon request of the applicant and shall apply the following measures to deal with the relevant parties:

15.2. The Customs Authority shall be exempt from liability for having temporarily suspended customs procedures upon request of the applicant and shall apply the following measures to deal with the relevant parties:

a) For cases specified in Points 15.1.a) to 15.1.đ) of this Circular, the Customs Authority shall perform the following tasks:

(i) Issue a Decision compelling the applicant to pay all costs incurred by the consignor due to the improper temporary suspension of customs procedures. Incurred costs include storage fees, loading and unloading fees, and preservation fees for the goods. Damages resulting from the temporary suspension of customs procedures shall be agreed upon by both parties or determined through civil litigation procedures;

(ii) Refund the guarantee amount deposited into the Customs Authority's temporary account or the Guarantee Certificate issued by a financial institution to the applicant after the applicant has fulfilled their obligation to pay the costs and damages as decided by the Customs Authority or the competent authority resolving disputes and complaints related to industrial property rights concerning the consignment (if applicable);

(iii) Prepare an administrative violation record and recommend the competent authority to issue a decision imposing an administrative penalty on the applicant for the act of exercising industrial property rights with the aim of unfair competition in accordance with the guiding documents on handling administrative violations in the field of industrial property rights;

b) For the case specified in Point 15.1.e) of this Circular, the Customs Authority shall apply the following measures:

(i) Refund the guarantee amount deposited into the Customs Authority's temporary account to the consignor if:

- Within thirty working days from the date of the Decision to continue customs procedures, the applicant does not submit to the Customs Authority a request to handle the infringement of industrial property rights along with evidence, arguments, and documents or a conclusion report on industrial property rights management agency confirming that the goods subject to temporary suspension of customs procedures are infringing industrial property rights, or does not submit a court document confirming receipt of the dispute resolution request regarding the infringement of industrial property rights concerning the consignment;

- The goods subject to temporary suspension of customs procedures are not infringing industrial property rights;

(ii) Issue an administrative penalty decision against the consignor according to Point 16.1 and 17.2 of Section 3 of this Circular and refund the guarantee amount and the Guarantee Certificate issued by a financial institution to the applicant in the event that it is concluded that the goods subject to temporary suspension of customs procedures are infringing industrial property rights;

16. Handling of the relevant parties when it is determined that the goods subject to temporary suspension of customs procedures are infringing industrial property rights;

In the case where the Customs Sub-Department concludes that the goods subject to temporary suspension of customs procedures are infringing industrial property rights, the Head of the Customs Sub-Department shall transfer the file along with recommendations for handling the matter to the Provincial/City Customs Department for the Director of the Customs Department to issue a Decision:

16.1. Imposing an administrative penalty on the consignor with corresponding forms and levels of fines for the violations as stipulated in the guiding documents on administrative penalties in the field of industrial property rights;

16.2. Refunding the guarantee amounts deposited into the Customs Authority's temporary account or the Guarantee Certificates issued by financial institutions to the applicant;

17. Handling exported goods and imported goods infringing industrial property rights;

17.1. The application of measures to handle goods infringing industrial property rights must comply with the following principles:

a) Goods infringing industrial property rights shall be handled in accordance with the Decree on Handling Administrative Violations dated July 2, 2002, and the Government's Decree No. 134/2003/NĐ-CP dated November 14, 2003, detailing the implementation of certain provisions of the Decree on Handling Administrative Violations in 2002, as well as guiding documents on administrative penalties in the field of industrial property rights;

b) Measures to handle exported and imported goods infringing industrial property rights must ensure timely prevention of infringement acts, prevent further potential infringements, while ensuring the legitimate rights and interests of the holders of industrial property rights;

c) Measures to remove infringing elements may only be applied to goods that can have such elements removed, specifically goods containing removable infringing elements such as labels, stickers that can be peeled off, packaging, detachable parts of products;

d) Re-export measures shall be applied to counterfeit goods if the counterfeit marks are removed;

đ) Seizure measures shall be applied to goods infringing industrial property rights if the infringing elements cannot be removed from those goods;

e) Measures to distribute seized goods to non-commercial users (such as humanitarian organizations, social welfare organizations, research and public education organizations, etc.) may be applied if the holder of industrial property rights does not object reasonably;

g) Destruction measures shall be applied to seized goods if they are without or no longer usable value; or contain infringing elements in labels, product stickers, product packaging; or do not meet the conditions for handling by the aforementioned measures.

17.2. The authority, procedures, and forms for handling goods temporarily suspended from customs clearance due to infringement of industrial property rights must comply with the provisions of the Administrative Violation Handling Ordinance dated July 2, 2002, and Decree No. 134/2003/NĐ-CP dated November 14, 2003, which details the implementation of certain articles of the Administrative Violation Handling Ordinance 2002, as well as the decree and guiding documents on administrative penalties in the field of industrial property.

Section 4:
IMPLEMENTING PROVISIONS

18. Complaints

18.1. The consignor and the applicant have the right to appeal decisions and conclusions of the Customs Authority regarding the application of border control measures concerning industrial property rights.

18.2. The complainant and the competent authority resolving the complaint shall strictly follow the procedures and steps for lodging and resolving complaints as stipulated in the Law on Complaints and Petitions.

19. Responsibilities of Industrial Property Right Holders

19.1. Industrial property right holders are responsible for proactively providing information related to goods infringing industrial property rights to the Customs Authority, and cooperating with the Intellectual Property Office and the General Department of Customs in training customs officials on relevant professional knowledge to enhance their ability to identify, proactively inspect, and prevent goods infringing industrial property rights at ports of entry.

19.2. Industrial property right holders may support funding for the Customs Authority to destroy goods infringing industrial property rights if it is not possible to recover the destruction costs from the consignor.

20. Responsibilities of Competent Authorities

20.1. The General Department of Customs under the Ministry of Finance is responsible for organizing and implementing border control measures concerning industrial property rights as prescribed in this Circular.

20.2. The Intellectual Property Office under the Ministry of Science and Technology is responsible for providing the General Department of Customs with information about or related to industrial property objects currently protected in Vietnam, and coordinating with the General Department of Customs to direct and organize professional training on industrial property for customs authorities directly implementing border control measures concerning industrial property rights.

20.3. The Intellectual Property Office and local intellectual property management agencies are responsible for conducting industrial property appraisals upon request of the Customs Authority and related parties according to the authority and procedures prescribed by industrial property laws.

21. Effectiveness

This Circular takes effect fifteen days after its publication in the Official Gazette. During implementation, any difficulties should be reported to the Ministry of Finance and the Ministry of Science and Technology for timely adjustment and supplementation.

ANNEX 1

JOINT CIRCULAR NO. 129/2004/TTLT-BTC-BKHCN DATE DECEMBER 29, 2004

APPLICATION FOR SUPERVISION AND DETECTION OF FAKE MARKETED GOODS

Respectfully submitted to:

The person signing below requests supervision and detection of fake marketed goods. detecting counterfeit goods bearing a trademark.

1. Name, address, nationality of the applicant:

2. Name, address of the service organization representing intellectual property (if any):

3. Marketed goods trademark being counterfeited (Name, Number, date of protection certificate issuance):

4. Documents attached to the declaration include:

[] Copy of the protection certificate;

[] Copy of the Registration Certificate for License Contract;

[] Other documents confirming the licensee's right to file the application;

[] Other documents proving the applicant's status as an industrial property right holder;

[] Power of attorney (if the application is filed by a representative);

[] Detailed information about counterfeit marketed goods;

[] Payment receipt for filing fees (if applicable);

[] Other documents, specifically:

5. Declared at:

(Major Technical Specifications and Other Information)

Signature and stamp of the declarant (if any)

ANNEX 2

JOINT CIRCULAR NO. 129/2004/TTLT-BTC-BKHCN DATE DECEMBER 29, 2004

APPLICATION FOR TEMPORARY SUSPENSION OF CUSTOMS PROCEDURES

Respectfully submitted to:...

The person signing below requests temporary suspension of customs procedures for a consignment suspected of infringing industrial property rights and commits to compensating the consignor for direct losses and paying other incidental costs arising from the incorrect request for temporary suspension of customs procedures.

1. Name, address, nationality of the applicant:

2. Name, address of the service organization representing intellectual property (if any):

3. Suspected infringed industrial property object (Name, Number, date of protection certificate issuance):

4. Type of goods, code, description of signs to identify goods suspected of infringing industrial property rights: suspected of infringing industrial property rights:

5. Estimated information about the time and place of export/import procedures for the consignment suspected of infringing industrial property rights: suspected of infringing industrial property rights:

6. Name, address of the consignor:

7. Documents attached to the declaration include:

[] Copy of the protection certificate;

[] Copy of the Registration Certificate for License Contract;

[] Other documents confirming the licensee's right to file the application;

[] Documents proving ownership rights; [] Detailed description of goods suspected of infringing industrial property rights;

[] Power of attorney (if the application is filed by a representative);

[] Photographs of infringing goods;

8. Declared at:

[] Payment receipt for filing fees (if applicable);

[] Other documents, specifically:

8. Declare at:

(Major Technical Specifications and Other Information)

Signature and stamp of the declarant (if any)