Circular No. 13/2015/TT-BTC stipulates on inspection, supervision, and suspension of customs procedures for exported and imported goods requiring protection of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights.

CIRCULAR

Regulations on inspection, supervision, and temporary suspension of customs procedures for exported and imported goods requiring protection of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights for exported and imported goods requiring protection of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rightsệ

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Pursuant to the Law on Customs No. 54/2014/QH-13 dated June 23, 2014;

On the basis of The Intellectual Property Law No. 50/2005/QH11 dated November 29, 2005; Law Amending and Supplementing Certain Articles of the Intellectual Property Law No. 36/2009/QH12 dated June 19, 2009;

Pursuant to the Government's Decree No. 08/2015/NĐ-CP dated January 21, 2005 detailing and guiding the implementation of the Law on Customs regarding customs procedures, inspection, supervision, and customs control;

On the basis of The Government's Decree No. 105/2006/NĐ-CP dated September 22, 2006 detailing and guiding the implementation of certain articles of the Intellectual Property Law concerning the protection of intellectual property rights and state management of intellectual property;

The Government's Decree No. 119/2010/NĐ-CP dated December 30, 2010 amending and supplementing certain articles of the Government's Decree No. 105/2006/NĐ-CP dated September 22, 2006 detailing and guiding the implementation of certain articles of the Intellectual Property Law concerning the protection of intellectual property rights and state management of intellectual property;

The Government's Decree No. 185/2013/NĐ-CP dated November 15, 2013 stipulating administrative penalties for violations in commercial activities, production, sale of counterfeit goods, prohibited goods, and consumer protection;

Pursuant to Decree No. 215/2013/NĐ-CP dated December 23, 2013, promulgated by the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director General of the General Department of Customs,

The Minister of Finance issues this Circular regulating inspection, supervision, and temporary suspension of customs procedures for exported and imported goods requiring protection of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular regulates inspection, supervision, and temporary suspension of customs procedures for exported and imported goods requiring protection of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights.

Article 2. Applicability

1. Customs authorities, customs officers.

2. Organizations and individuals exporting or importing goods or their authorized representatives.

3. Organizations and individuals being subjects of intellectual property rights, owners of genuine goods that have been counterfeited, or legal representatives of owners.

4. Other organizations and individuals related.

The terms used in this Circular are understood as follows:

2. Protection of intellectual property rights in the field of customs is the application by customs authorities of measures such as inspection, supervision, control, and temporary suspension of customs procedures for exported and imported goods requiring protection of intellectual property rights as prescribed in Article 216 of the Intellectual Property Law and Articles 73, 74, 75, and 76 of the Law on Customs, and related regulatory legal documents, to detect, combat, and handle acts infringing intellectual property rights in the field of customs.

3. Temporary suspension of customs procedures for goods suspected of infringing intellectual property rights is a measure carried out at the request of the subject of intellectual property rights to collect information and evidence about the consignment for the subject of intellectual property rights to exercise the right to request handling of the infringement act and to request the application of provisional measures or preventive measures and guarantees for administrative penalties.

4. Customs inspection of counterfeit goods and goods infringing intellectual property rights involves checking customs documents, relevant certificates, and inspecting actual goods and transport vehicles conducted by customs authorities to identify goods suspected of being counterfeit or infringing intellectual property rights.

5. Customs supervision of counterfeit goods and goods infringing intellectual property rights is a business method applied by customs authorities to ensure the integrity of goods, compliance with legal regulations in the storage, retention, loading/unloading, transportation, and use of exported and imported goods requiring protection of intellectual property rights under customs management.

8. The person submitting the Request Form is the owner of the intellectual property right (including the subject of the intellectual property right and organizations or individuals to whom the owner has transferred the intellectual property right) or a person legally authorized by the subject of the intellectual property right.

9. Infringement of intellectual property rights includes the acts specified in Articles 28, 35, 126, 127, 129, and 188 of the Intellectual Property Law.

Article 4. Rights and Obligations of Organizations and Individuals Related

1. To have the customs authority keep confidential commercial information provided to the customs authority, except where such information must be provided to competent authorities as prescribed by law.

2. The owner of intellectual property rights, the owner of goods counterfeited with intellectual property rights, or their authorized representative may participate together with the customs authority in activities related to inspection, supervision, control, verification, evidence collection to determine goods infringing intellectual property rights, counterfeit goods, and the process of handling such goods and evidence, except when necessary to protect trade secrets or state secrets as prescribed by law.

4. To provide promptly relevant information and documents concerning suspected export and import goods infringing intellectual property rights or counterfeit goods when requested by the customs authority or upon receipt of relevant information.

Article 5. Powers and Responsibilities of Customs Authorities

1. To implement measures for inspection, supervision, and control of customs, temporarily suspending customs procedures according to the Customs Law, commercial law, and intellectual property law regarding goods suspected of being counterfeit or infringing intellectual property rights.

2. To explain and guide organizations and individuals to comply with provisions of the Customs Law, Intellectual Property Law, and this Circular. To notify in writing organizations and individuals concerned about the results of case resolution and handling.

3. To coordinate with state management agencies and functional forces combating counterfeit goods and protecting intellectual property rights in anti-counterfeiting work and handling goods infringing intellectual property rights according to current laws.

4. To request individuals and organizations to submit and present relevant documents to clarify doubts raised by the customs authority regarding export and import goods infringing intellectual property rights or counterfeit goods.

6. To implement reporting systems and retain relevant documents and files related to anti-counterfeiting work and protection of intellectual property rights according to current regulations.

Chapter II

ACCEPTANCE AND HANDLING OF PETITIONS FOR INSPECTION AND SUPERVISION OF EXPORT AND IMPORT GOODS REQUIRING INTELLECTUAL PROPERTY PROTECTION

The owner of intellectual property rights or their authorized representative shall submit a complete set of documents to the General Department of Customs (Customs Supervision Management Department), including:

2. Industrial property protection certificates or other documents proving industrial property rights protected in Vietnam, or a certificate of registration of an agreement transferring the right to use an industrial property object; a certificate of copyright registration, related rights, or plant variety rights, or other documents proving copyright, related rights, or plant variety rights: One certified copy signed and stamped by the owner of intellectual property rights or their authorized representative.

3. Detailed description of goods infringing intellectual property rights, photographs, distinguishing features between genuine and infringing goods: One original copy.

4. List of legitimate exporters and importers of goods requiring supervision; list of potential exporters and importers of goods infringing intellectual property rights: One original copy.

a) Legal status of the applicant as prescribed by law.

b) Checking the consistency between the content of the request and accompanying documents; Checking the validity period of intellectual property protection certificates.

c) Samples, exhibits (or photographs) consistent with the content of the intellectual property right requiring protection or the content of the complaint about the violation.

d) Content of authorization consistent with the functions of the customs authority and the applicant (in case of authorized submission).

a) The request is sent to the wrong competent authority.

b) The customs authority has grounds to determine that the applicant does not have the legal status to submit the request as prescribed by law.

c) The applicant does not provide sufficient documents as prescribed in Clause 2, Article 74 of the Law on Customs.

d) During the handling of the request, the customs authority receives a notification from the State management agency on intellectual property regarding disputes, complaints about the subject of rights, protectability, scope of intellectual property rights protection.

a) After accepting the request for inspection and supervision of customs on exported and imported goods requiring protection of intellectual property rights, the General Department of Customs (Customs Supervision Management Department) updates the database on intellectual property rights protection and notifies the acceptance of the request to the Provincial and City Customs Departments; Anti-Smuggling Investigation Department to implement inspection and supervision activities;

b) The Provincial and City Customs Departments, Anti-Smuggling Investigation Department receive notifications from the General Department of Customs (Customs Supervision Management Department) and search the database system to organize and implement within their jurisdiction;

c) The Customs Sub-department bases on information from the database and notifications from the General Department of Customs (Customs Supervision Management Department) to implement measures for customs inspection and supervision on exported and imported goods suspected of infringing intellectual property rights as stipulated in Article 14 of this Circular.

The General Department of Customs (Customs Supervision Management Department) is responsible for notifying the termination of the effectiveness of requests for inspection and supervision of exported and imported goods requiring protection of intellectual property rights in the following cases:

1. The applicant submits a written request to terminate the inspection and supervision by the customs authority on goods requiring protection.

2. At the end of the effective period of the request for inspection and supervision, the applicant does not submit a written request for extension.

3. The State management agency on intellectual property notifies the cancellation of the protection certificate issued to the applicant requesting protection.

Chapter III

RECEIVING AND PROCESSING REQUESTS FOR TEMPORARY SUSPENSION OF CUSTOMS PROCEDURES AND TEMPORARY SUSPENSION PROCEDURES

The owner of intellectual property rights or the authorized person shall submit the application package for temporarily suspending customs procedures to the Customs Sub-Department where the customs procedures for the export or import consignment are being processed, including:

1. An application form for temporarily suspending customs procedures according to Form No. 02-SHTT issued together with this Circular: 01 original copy.

2. Industrial property protection certificates or other documents proving industrial property rights protected in Vietnam, or a certificate of registration of an agreement transferring the right to use an industrial property object; a certificate of copyright registration, related rights, or plant variety rights, or other documents proving copyright, related rights, or plant variety rights: One certified copy signed and stamped by the owner of intellectual property rights or their authorized representative.

3. Detailed description of goods infringing intellectual property rights, photographs, distinguishing features between genuine and infringing goods: One original copy.

4. List of legitimate exporters and importers of goods requiring supervision; list of potential exporters and importers of goods infringing intellectual property rights: One original copy.

5. A guarantee letter from a credit institution: 01 original copy or a guarantee amount as prescribed in Clause 3, Article 74 of the Law on Customs.

After the applicant submits an extension request along with a guarantee amount or a guarantee document as prescribed by law, the Customs Sub-Department that decided to temporarily suspend shall implement the extension of the suspension period according to Form No. 04-SHTT issued together with this Circular and notify the applicant, the consignor, and other related parties. The extension period shall not exceed 10 working days from the date of the extension decision.

a) Requesting the consignor, the owner of intellectual property rights to provide documents related to the goods (catalogs, appraisal conclusions, foreign documents, results of similar cases...);

b) Requesting an expert appraisal at specialized customs organizations or other appraisal organizations according to Clause 1, Article 40 of Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain articles of the Intellectual Property Law and protection of intellectual property rights and state management of intellectual property, or seeking professional opinions from state management agencies regarding intellectual property to determine signs of intellectual property infringement;

c) Requesting organizations and individuals to take samples for appraisal according to Clause 2, Article 40 of Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government. The sample-taking procedure, sampling techniques, storage location, and storage period of the goods shall be carried out according to the Circular on customs procedures; customs inspection and supervision; export tax, import tax, and tax management of exported and imported goods issued by the Ministry of Finance;

d) Conducting supplementary appraisals or re-appraisals according to Clause 13, Article 1 of Decree No. 119/2010/NĐ-CP dated December 30, 2010 of the Government amending and supplementing certain provisions of Decree No. 105/2006/NĐ-CP dated September 22, 2010 of the Government;

đ) Cooperating and exchanging information with state management agencies regarding intellectual property within the jurisdiction when disputes or complaints arise concerning the subject of intellectual property rights, the ability to protect, the scope of protection of intellectual property rights, and the authority to handle violations;

a) Initiating administrative proceedings when it is confirmed that the suspended goods infringe intellectual property rights based on the intellectual property appraisal conclusion of the appraisal organization (in case of requesting an expert appraisal); professional opinions from state management agencies regarding intellectual property and other state management agencies (in case of requesting professional opinions); documents and evidence provided by the owner of intellectual property rights;

Deciding to seize goods in cases where there is a basis to confirm that the suspended goods are counterfeit goods infringing intellectual property rights; goods infringing intellectual property rights are foodstuffs, pharmaceuticals, cosmetics, animal feed, fertilizers, veterinary drugs, plant protection products, construction materials.

Implement administrative penalties for acts of infringing intellectual property rights and goods infringing intellectual property rights according to the provisions of the law. Within 10 working days from the effective date of the penalty decision, the Customs Sub-Department shall notify in writing the violator to pay the incurred costs due to the administrative violation and refund the guarantor who requested the temporary suspension of customs procedures the amount of guarantee already paid.

b) If, upon verification, it is determined that the suspended goods do not infringe intellectual property rights, then proceed with the customs procedures for the consignment according to Article 11 of this Circular.

c) Implement according to the opinion of the court in cases where the civil lawsuit has been initiated;

d) Transfer the case to other intellectual property enforcement agencies for handling when it is determined that the violation does not fall within the jurisdiction of the customs authority;

đ) Temporarily suspend the processing after receiving a notification from the state management agency on intellectual property regarding disputes or complaints about the subject of rights, the possibility of protection, and the scope of intellectual property rights protection;

e) Transfer to the competent authority to conduct investigations and initiate proceedings according to the provisions of the law when it is determined that the violation indicates criminal activity as stipulated in the Penal Code;

The Director of the Customs Sub-Department shall issue a written notice to the applicant regarding the rejection of the application in the following cases:

a) The Customs Sub-Department does not process customs procedures for the export or import consignment proposed to temporarily suspend customs procedures;

b) The customs authority has grounds to determine that the applicant does not have the legal status to submit the request as prescribed by law.

c) The applicant does not provide sufficient documents as prescribed in Article 9 of this Circular;

1. The Customs Branch shall be responsible for deciding to continue the customs procedures for the consignment of goods according to Clause 4, Article 76 of the Customs Law and notify the relevant parties (using Form No. 05-SHTT issued together with this Circular);

2. Within ten working days from the date of completing the customs procedures for the suspended consignment, the Customs Branch shall be responsible for:

a) Notifying the intellectual property right owner or the legally authorized representative to settle the incurred costs for the consignor according to Clause 5, Article 76 of the Customs Law;

b) Returning the guarantee deposit to the party requesting the suspension of customs procedures according to Clause 6, Article 76 of the Customs Law.

Chapter IV

CUSTOMS INSPECTION AND SUPERVISION FOR EXPORTED AND IMPORTED GOODS INFRINGING INTELLECTUAL PROPERTY RIGHTS AND FAKE GOODS

When inspecting exported and imported goods, in addition to implementing according to the Circular on customs procedures; customs inspection and supervision; export duties, import duties, and tax administration for exported and imported goods issued by the Ministry of Finance, customs officials shall perform:

1. Inspect and compare information declared on the customs declaration regarding the name of goods, brand, origin, value, packaging method, quality of goods, transportation route of goods with the information in the system of data on requests for inspection and supervision of exported and imported goods related to intellectual property, the risk management list on intellectual property, and other information collected by the customs authority to identify signs of infringing intellectual property rights or fake goods.

2. In cases where goods require specialized inspection, the conclusion of the specialized inspection agency shall be relied upon to determine signs of fake goods.

3. Compare the inspection results with the legal provisions on goods infringing intellectual property rights and fake goods.

1. In cases where exported or imported goods are identified as fake, measures to prevent and impose penalties according to the law on administrative violations shall be applied.

2. In cases where exported or imported goods are suspected of being fake, the Head of the Customs Branch shall request the declarant to provide relevant documents concerning the goods:

a) Sales contract or equivalent documents: one copy;

b) Technical documentation or component analysis report (if available): one copy.

3. If the genuine owner of the goods is identified, the genuine owner shall provide relevant documents concerning the goods (such as: catalogs, appraisal conclusions, foreign documents, results of similar cases). If the genuine owner cannot be identified, the customs declaration file, actual goods, risk analysis information on goods, and legal provisions on fake goods shall be used to determine; cooperate with anti-smuggling forces to investigate and verify (if necessary) or transfer information and files of the case to anti-smuggling forces for investigation, verification, and handling according to Clause 4 of this Article.

4. Verify fake goods:

a) During the period when the goods are detained or preventive measures are applied according to regulations, the Customs Branch shall be responsible for performing the following tasks:

a.1) Request the consignor or the genuine owner (when identified) to provide relevant documents concerning the goods (such as: catalogs, appraisal conclusions, foreign documents, results of similar cases).

a.2) Cooperate with the consignor or the genuine owner to take samples for technical appraisal at designated organizations for technical inspection serving state management or commercial appraisers (in cases where the designated technical organization refuses to accept the sample) and base the decision on the appraisal conclusion. If the declarant disagrees with the conclusion, they may appeal according to the law.

Sampling procedures and techniques shall be carried out according to the guidance provided in the Circular on customs procedures; customs inspection and supervision; export duties, import duties, and tax administration for exported and imported goods issued by the Ministry of Finance.

a.3) Cooperate with anti-smuggling forces in verification and investigation work according to prescribed procedures.

a.4) Report to the Provincial Customs Department (hereinafter referred to as the Provincial Customs Department) and the General Department of Customs for timely guidance and resolution of complex cases involving high-value goods and multiple localities and government agencies, international organizations.

b) Upon completion of the detention period or during the application of preventive measures according to regulations, if there is sufficient basis to conclude that the suspected goods are fake, the customs authority shall handle the violation according to the law;

c) If the conclusion is that the goods are not fake, the customs authority shall proceed with the clearance procedures according to regulations. Complaint resolution or compensation claims by the consignor due to the temporary detention of goods by the customs authority shall be handled according to current regulations on complaint resolution and compensation.

1. The Customs Branch shall notify the applicant requesting inspection and supervision of goods suspected of infringing intellectual property rights according to form number 06-SHTT issued together with this Circular, along with images of the suspected infringing goods (if available).

2. Within five working days from the date of notification, the Customs Branch shall be responsible for performing the following tasks:

a) In cases where it receives a request for temporarily suspending customs procedures or has not registered for inspection and supervision of intellectual property rights at the customs office but the intellectual property right holder requests temporarily suspending customs procedures in writing, if the intellectual property right holder fulfills the obligations stipulated in Clause 3 of Article 74 of the Customs Law:

a.1) Deciding to temporarily suspend customs procedures for the consignment of goods suspected of infringing intellectual property rights.

a.2) In cases where there is sufficient basis to confirm that the goods notified are infringing intellectual property rights, the Director of the Customs Branch shall consider and decide to immediately apply administrative measures to handle the situation in accordance with Articles 214 and 215 of the Intellectual Property Law, while coordinating with control forces at all levels to verify and collect information on the goods as prescribed.

b) In cases where the intellectual property right holder does not have a request or a written request for temporarily suspending customs procedures but fulfills the obligations stipulated in Clause 3 of Article 74 of the Customs Law, or has a request for temporarily suspending customs procedures but does not fulfill the obligations stipulated in Clause 3 of Article 74 of the Customs Law, then temporary suspension of customs procedures for the consignment will not be implemented except in cases of counterfeit goods regarding intellectual property rights.

3. In cases where there is no information requesting protection of intellectual property rights, but during the process of inspecting customs documents and physically inspecting goods, the customs authority discovers imported goods suspected of infringing intellectual property rights, they shall conduct physical inspections of the goods, take samples or photograph the goods, and coordinate with specialized units for intellectual property control at the General Department of Customs, Provincial/City Customs Bureau to decide on clearance or temporary detention of the goods if the violation is confirmed.

Chapter V

CUSTOMS CONTROL OF FAKE GOODS AND GOODS INFRINGING INTELLECTUAL PROPERTY RIGHTS

Article 15. Responsibilities and authorities of customs control forces

3. When performing their duties, customs control forces are entitled to request relevant agencies, organizations, individuals, and customs units at all levels to provide documents, cooperate, and create conditions to perform their assigned functions and tasks.

Article 16. Implementation of customs control operations

1. Customs control forces shall actively collect information in accordance with the provisions of the law to understand the situation and detect subjects, methods, and means of activities violating regulations related to counterfeit goods and goods infringing intellectual property rights.

Chapter VI

IMPLEMENTING PROVISIONS

Article 17. Responsibilities for Implementation

2. Customs authorities, declarants, applicants requesting inspection and supervision of exported and imported goods requiring protection of intellectual property rights, complainants of violations, and other organizations and individuals involved shall be responsible for implementing in accordance with current regulations and guidance provided in this Circular.

Article 18. Effective Date

This Circular takes effect from March 15, 2015, and replaces Circular No. 44/2011/TT-BTC dated April 11, 2011, issued by the Minister of Finance, guiding anti-counterfeiting work and the protection of intellectual property rights in the customs sector, superseding previous guiding documents that conflict with the provisions of this Circular./.