Circular No. 37/2011/TT-BKHCN 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 intellectual property.

CIRCULAR

Guidelines for Implementing Certain Provisions of Decree No. 97/2010/NĐ-CP dated September 21, 2010 of the Government on Administrative Sanctions for Violations in the Field of Industrial Property

stipulating administrative sanctions for violations in the field of industrial property

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Based on 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)

Based on the Administrative Violation Handling Decree 2002; the Decree Amending and Supplementing Certain Provisions of the Administrative Violation Handling Decree 2008 (hereinafter referred to as the Administrative Violation Handling Decree)

Based on Decree No. 97/2010/NĐ-CP dated September 21, 2010 of the Government stipulating administrative sanctions for violations concerning industrial property (hereinafter referred to as Decree No. 97/2010/NĐ-CP)

Based on Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing and guiding the implementation of certain provisions of the Administrative Violation Handling Decree (hereinafter referred to as Decree No. 128/2008/NĐ-CP)

Based on Decree No. 103/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the 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)

Based on Decree No. 105/2006/NĐ-CP dated September 22, 2006 of the Government detailing and guiding the implementation of certain provisions of the Intellectual Property Law concerning the 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. 28/2008/NĐ-CP dated March 14, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Science and Technology;

Based on the consensus document of the ministries managing related fields: Ministry of Information and Communications, Ministry of Planning and Investment, Ministry of Finance, Ministry of Health

The Minister of Science and Technology guides specific contents related to the implementation of certain provisions of Decree No. 97/2010/NĐ-CP

PART I

GENERAL PROVISIONS

Article 1. Scope of Application

1. Organizations and individuals committing acts prohibited under Article 2 of Decree No. 97/2010/NĐ-CP shall be subject to administrative sanctions when they meet all the following conditions:

a) Committing the prohibited act as provided in Chapter II of Decree No. 97/2010/NĐ-CP

b) Organizations and individuals committing the prohibited act fall within the category of entities subject to administrative sanctions as provided in Clause 1, Article 6 of the Administrative Violation Handling Decree

c) Committing the prohibited act within the time limit for imposing administrative sanctions as provided in Clauses 1, 2, and 3 of Article 10 of the Administrative Violation Handling Decree

2. Other organizations and individuals related to the provisions of Article 2 of Decree No. 97/2010/NĐ-CP include:

a) Organizations and individuals submitting requests for handling administrative violations; organizations and individuals with rights and interests involved during the process of handling administrative violations in the field of industrial property

b) Authorities and officials with jurisdiction to accept and resolve requests for handling administrative violations, inspect, audit, and handle administrative violations in the field of industrial property

c) Authorities with jurisdiction over state management of industrial property; authorities with jurisdiction to resolve disputes over industrial property rights, and to handle complaints and reports regarding administrative sanctions for violations in the field of industrial property

d) Organizations and individuals with functions to conduct industrial property appraisals; organizations and individuals practicing industrial property representation services

đ) State Treasury, credit institutions, authorities with jurisdiction to impose sanctions responsible for collecting, depositing, and transferring fines and illegal gains from the commission of administrative violations; authorities, organizations, and individuals responsible for enforcing and coercively enforcing decisions on administrative sanctions in the field of industrial property; authorities, organizations, and individuals managing business operations, advertising, printing, and electronic information networks where acts violating laws on industrial property have occurred

e) State management authorities in related fields upon receipt of conclusions or decisions on administrative sanctions issued by authorities with jurisdiction to handle violations in the field of industrial property

g) Organizations and individuals with responsibilities or rights and interests related to providing materials and evidence to verify violations, infringing goods, or in implementing conclusions and decisions on administrative sanctions issued by authorities with jurisdiction to handle violations in the field of industrial property

3. The conclusion document of the authority with jurisdiction to handle administrative violations in the field of industrial property refers to the document concluding on the violation, and the document notifying the results of handling the violation based on the recorded agreement of the parties

A decision on administrative sanctions becomes effective from the date of issuance, except in cases where a different effective date is specified in the decision, in accordance with Clause 4, Article 56 of the Administrative Violation Handling Decree

In case of disputes or complaints about the validity of intellectual property certificates, the conclusion document of the state management authority on intellectual property refers to the decision granting or refusing to grant intellectual property certificates; the decision terminating or revoking the validity of intellectual property certificates of the National Office of Intellectual Property, Ministry of Science and Technology shall take effect in accordance with the provisions of the law

Article 2. Forms of punishment and measures to remedy consequences

1. Principal forms of punishment

a) The warning penalty shall be applied according to the provisions of point a, Clause 1, Article 3 of Decree 97/2010/NĐ-CP in cases of violation with one or more of the following circumstances:

(i) First-time violation on a small scale, understood as the first violation in the field of industrial property, infringing goods having a quantity up to 10 units of products and a total value under VND 3,000,000; and other mitigating circumstances prescribed in Clause 4, Article 3 of Decree 97/2010/NĐ-CP;

(ii) Carried out by an individual aged from 14 to under 16 years old.

b) The fine penalty shall be applied when the act of violation does not fall within the scope of application of the warning penalty and shall follow the principles below:

(i) In cases without aggravating or mitigating circumstances, the average level of the fine range shall be applied;

(ii) In cases with one or more mitigating circumstances prescribed in Clause 4, Article 3 of Decree 97/2010/NĐ-CP, the fine shall be applied at a level below the average to the minimum of the fine range. Some mitigating circumstances are guided as follows:

- Violation due to lack of knowledge and lack of grounds to know about the status of protection of industrial property rights as provided for in point b, Clause 4, Article 3 of Decree 97/2010/NĐ-CP is understood as a case of violation caused by deception or lack of information about the status of protection of related industrial property rights or caused by another person without the violator's knowledge.

- The administrative violator has taken measures to prevent, reduce the harm of the violation, or voluntarily remedied the consequences and compensated for damages as provided for in point a, Clause 1, Article 8 of the Administrative Violation Handling Ordinance, for example:

+ The violator has ceased production, stopped selling infringing goods upon request of the subject of industrial property rights or competent state agencies;

+ The violator has voluntarily recalled infringing goods, issued corrections, apologized, and voluntarily compensated for damages to the subject of industrial property rights.

(iii) In cases with one or more aggravating circumstances as prescribed in Clause 4, Article 3 of Decree 97/2010/NĐ-CP, the fine shall be applied from above the average level of the fine range to the maximum of the fine range. Some aggravating circumstances are guided as follows:

- Repeated violations in the same field as provided for in Clause 2, Article 9 of the Administrative Violation Handling Ordinance and Clause 2, Article 6 of Decree 128/2008/NĐ-CP is understood as:

+ Continuing to commit the act of violation in the field of industrial property after previously committing a violation but not being discovered or punished and the statute of limitations for punishment has not expired;

+ Continuing to commit the act of violation after both parties have agreed on measures to resolve the violation and such agreement has been recorded by the competent authority.

- Continuing to commit the act of violation despite the competent authority's request to stop the act as provided for in Clause 8, Article 9 of the Administrative Violation Handling Ordinance is understood as the violator failing to cease the act of violation, failing to take preventive measures, or reducing the harm such as stopping production, stopping sales of infringing goods as requested by the competent authority handling infringement.

2. Additional forms of punishment

a) The measure of confiscation and disposal of infringing goods, evidence, and means of transportation confiscated as provided for in point a, Clause 2, Article 3 of Decree 97/2010/NĐ-CP shall be carried out according to the procedures and formalities stipulated in Article 37 of Decree 97/2010/NĐ-CP.

b) The measure of suspending business operations involving infringing goods and services as provided for in point c, Clause 2, Article 3 of Decree 97/2010/NĐ-CP shall only apply to business activities directly related to the act of violation. The suspension shall be recorded in the decision on administrative violation penalties.

3. Measures to remedy consequences

a) The measure of ordering the removal of infringing elements as provided for in point a, Clause 3, Article 3 of Decree 97/2010/NĐ-CP may be implemented through one or a combination of several methods, for example: removing, cutting, erasing, grinding to eliminate infringing signs from goods, transaction documents, signs, packaging, business means, service means, advertising means so that there are no infringing elements left on the goods or means which are the objects of violation.

b) The measure of ordering the revocation of domain name and changing the name of a business containing infringing elements as provided for in point a, Clause 3, Article 3 of Decree 97/2010/NĐ-CP shall be implemented as follows:

(i) The measure of ordering the revocation of 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 29 of Decree 97/2010/NĐ-CP and the party being requested to handle the violation fails to cease the act of holding or using the infringing domain name. The measure of ordering the revocation of domain name shall be recorded in the decision on administrative violation penalties. The competent authority responsible for revoking the domain name is the Vietnam Internet Center.

(ii) The measure of ordering the change of the business name shall be applied when the party being requested to handle the violation fails to proceed with the procedure to change the infringing business name as required by the business registration agency or the decision of the competent authority handling the violation of industrial property rights. The measure of ordering the change of the business name shall be recorded in the decision on administrative violation penalties. The competent authority responsible for changing the business name is the business registration agency.

c) The measure of ordering re-export as provided for in point c, Clause 3, Article 3 of Decree 97/2010/NĐ-CP shall be applied to imported counterfeit goods, means, raw materials, and materials mainly used for producing and trading counterfeit goods after eliminating infringing elements from the goods.

Raw materials and materials mainly used for producing and trading counterfeit goods shall be determined according to the provisions of Clause 3, Article 29 of Decree 105/2006/NĐ-CP amended.

Competent authorities applying the measure of ordering re-export include the positions of Chairman of the Provincial People's Committee, Director of the Anti-Smuggling Investigation Department, Director of the Post-Customs Clearance Inspection Department under the General Customs Department, and Director of the Customs Department.

d) For goods in violation, raw materials, production means for goods in violation, evidence, means of violation that are not subject to compulsory destruction according to point d, Clause 3, Article 3 of Decree 97/2010/NĐ-CP, the competent authority shall decide on measures to handle the goods based on the nature and characteristics of the goods and specific circumstances of the case, taking into account the proposals and opinions of the rights holders, the person requesting the handling of violations, and the organizations and individuals who violated, in accordance with the provisions of Clause 4, Article 29 of Decree 105/2006/NĐ-CP as amended.

The measures may include allowing the violators to utilize the goods and raw materials after removing the elements of violation as production materials for other goods; allowing the violators to complete products and put them into legitimate circulation upon permission from the rights holder; allowing public auction for state treasury, charity, social welfare purposes with the consent of the rights holder; or other measures proposed and agreed upon by the relevant parties in accordance with the provisions of Clause 4, Article 29 of Decree 105/2006/NĐ-CP as amended.

đ) In cases where it is impossible to remove the elements of violation, or the removal does not thoroughly prevent the violation, or other measures cannot be applied, the competent authority shall apply the measure of compulsory destruction according to the provisions of Clause 3, Article 36 of Decree 97/2010/NĐ-CP.

The cost of destroying the elements of violation, means, and goods in violation shall be borne by the organizations and individuals who violated. If the violators are unable to carry out the destruction, the competent authority imposing the penalty may use funds from the state budget according to the provisions of Article 14 of Decree 128/2008/NĐ-CP. The organizations and individuals who violated must bear the responsibility to reimburse the destruction costs to the competent authority imposing the penalty. If they fail to repay voluntarily, coercive enforcement measures will be applied.

e) The measure of recovering illegal profits to the state budget as stipulated in point h, Clause 3, Article 3 of Decree 97/2010/NĐ-CP shall be applied when there are valid invoices, documents, and materials proving that the organization or individual has committed the administrative violation (with quantities and values of the goods in violation attached), but the goods in violation have been sold at the time of inspection and examination.

The measure of recovering illegal profits to the state budget resulting from the implementation of administrative violations shall be recorded in the administrative penalty decision. The illegal profits shall be deposited into the State Treasury similar to the procedure for depositing fines according to the administrative penalty decision. If the competent authority imposing the penalty has a temporary collection account opened at the State Treasury, the recovered amount shall be deposited into the temporary collection account of the competent authority imposing the penalty. Periodically, the competent authority imposing the penalty shall be responsible for depositing the recovered amount back to the State Treasury according to the law.

Article 3. Determination of Illegal Profits Resulting from Administrative Violations

1. The amount of illegal profits is the amount of money obtained by organizations and individuals due to the implementation of administrative violations concerning industrial property rights.

The amount of illegal profits to be recovered to the state budget shall be determined according to the following formula:

Amount of illegal profits = Quantity of goods, volume of services in violation sold x Profit margin.

- Quantity of goods in violation sold = Quantity of goods in violation recorded on the documents, materials specified in point a, Clause 2 of this Article - Quantity of goods in violation not yet sold discovered at the time of inspection and examination.

The volume of services in violation provided shall be determined similarly to the formula for determining the quantity of goods in violation sold as mentioned above.

- Profit margin = Selling price of goods, services - Cost price or purchase price.

2. Basis for determining the amount of illegal profits

a) The quantity of goods, volume of services in violation shall be determined based on one of the following documents or materials: accounting books; tax declaration forms; purchase and sale contracts; financial invoices; sales invoices; sales tracking records; warehouse entry and exit records; import files (if imported goods) or other legally valid documents.

b) Cost price, purchase price, selling price of goods, services:

(i) Cost price is calculated based on accounting books, tracking records, warehouse entry receipts, warehouse exit receipts, or other legally valid documents of the production unit.

(ii) Purchase price is calculated based on purchase contracts, sales invoices, import declarations, declarations to the competent authorities, or other related documents.

(iii) Selling price of goods, services: is calculated based on listed prices, prices recorded on purchase and sale contracts, sales invoices, declarations to the competent authorities, or other related legally valid documents.

c) In cases where there is no information about quantity or price on the documents or materials, or there are no documents or materials as specified in points a and b, Clause 2 of this Article, the quantity of goods, volume of services in violation, cost price, purchase price, and selling price of goods, services can be determined based on the statements and commitments of the violator. In necessary cases, the competent authority shall implement inspection, verification, and evidence collection measures according to the provisions of Clauses 2, 3, and 6, Article 28 of Decree 97/2010/NĐ-CP.

Chapter II

ADMINISTRATIVE PENALTY VIOLATIONS

Section 1

Violations related to management of industrial property activities

Article 4. Acts of violation related to procedures for establishing, exercising, and protecting industrial property rights

The act of taking advantage of procedures for establishing, exercising, and protecting industrial property rights to commit acts infringing upon the interests of the State, public interest, or the lawful rights and interests of other organizations and individuals as stipulated in point b, Clause 1, Article 5 of Decree 97/2010/NĐ-CP shall be understood as follows:

1. Intentionally carrying out registration procedures, requesting termination, revocation, or lodging complaints or accusations in procedures for establishing, exercising, and protecting industrial property rights without legal grounds, with the aim of hindering the production, business operations, establishment, exercise, and protection of industrial property rights of others.

2. Intentionally performing registration procedures for industrial property rights in Vietnam or abroad in an untruthful manner, failing to perform them, or performing them incompletely, thereby disclosing confidential information or causing domestic organizations and individuals to lose opportunities to establish industrial property rights, resulting in damage to the interests of the State, localities, and enterprises.

Article 5. Acts of violation concerning misleading indications regarding the protection of industrial property rights

1. Misleading indications about the legal status as stipulated in point b, Clause 1, Article 6 of Decree 97/2010/NĐ-CP shall be understood as using misleading information suggesting that an object is being protected by industrial property rights in Vietnam despite not being or not yet being protected, including cases where although an application has been submitted, a certificate of protection has not yet been issued, or a certificate of protection has been revoked, terminated, or expired, for example:

a) Printing on goods, packaging, or service means misleading indications suggesting that a product or service bearing a trademark is protected, such as "registered trademark protected exclusively," "protected trademark," "trademark exclusive to...," including the use of the ® symbol (indicating that a Trademark Registration Certificate has been granted).

b) Printing on products or packaging misleading indications suggesting that a product is protected by design or invention patents, such as "product protected exclusively by design patent," "product protected exclusively by invention patent," "product produced from a process protected by invention patent of...," including the use of the "P" or "Patent" symbol followed by numbers (indicating that a Patent - Exclusive Invention Patent has been granted).

2. Misleading indications about the scope of protection of industrial property rights as stipulated in point b, Clause 1, Article 6 of Decree 97/2010/NĐ-CP shall be understood as indicating incorrectly the scope of protection of industrial property rights for products or services outside the scope covered by the certificate.

3. Misleading indications or failure to indicate that goods are produced under contracts for the use of industrial property objects as stipulated in point c, Clause 1, Article 6 of Decree 97/2010/NĐ-CP shall be understood as follows:

a) Misleading indications are actions of printing on products the phrase "produced under a contract for the use of industrial property objects of..." or similar phrases, regardless of whether in Vietnamese or foreign languages, but in reality, the right to use the industrial property object has not yet been transferred according to the law.

b) Failure to indicate is the action of not printing on products or service means the indication of the transfer of the right to use the relevant industrial property object if the product or service is carried out under a contract for the use of industrial property objects and such indication is required by law.

Article 6. Acts violating provisions on representation of industrial property rights

1. The act "simultaneously representing both conflicting parties regarding industrial property rights" stipulated in point a, Clause 2, Article 7 of Decree 97/2010/NĐ-CP shall be understood as:

a) Performing representation on behalf of both the party requesting handling and the party being requested to handle acts infringing industrial property rights in the same case;

b) Representing the party implementing opposition procedures, requests for cancellation, termination of effect of industrial property protection certificates, and handling violations while simultaneously representing the applicant or holder of the protection certificate in procedures related to establishment, exercise, and protection of industrial property rights.

2. The intentional act of obstructing the normal progress of establishing, exercising, and protecting industrial property rights causing damage to the rightsholder and interested parties stipulated in point i, Clause 2, Article 7 of Decree 97/2010/NĐ-CP shall be understood as:

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

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

c) Submitting complaints about granting or refusing to grant protection certificates without sufficient grounds with the aim of delaying the resolution process of competent authorities, causing material and spiritual damage to the rightsholder and interested parties.

3. Serious misconduct in the practice of representation of industrial property causing damage to the interests of the state or society stipulated in point b, Clause 4, Article 7 of Decree 97/2010/NĐ-CP shall be understood as:

a) Representing organizations or individuals who are not rightsholders or have not been permitted by the rightsholders to register well-known trademarks, widely-used trademarks, or organizations or individuals who have not been granted management authority over geographical indications to register geographical indications abroad; registering confidential inventions abroad without permission from competent authorities;

b) Disclosing information or documents that have not been permitted to be published, information classified as state secrets or business secrets obtained during the provision of representation services for industrial property.

Article 7. Acts violating provisions on industrial property appraisal

1. The act of disclosing secret information known during the appraisal process without permission from the relevant parties stipulated in point b, Clause 2, Article 8 of Decree 97/2010/NĐ-CP shall be understood as:

a) Disclosing secret information and documents provided by the competent authority requesting the appraisal, or by the person requesting the industrial property appraisal related to the ongoing case;

b) Disclosing information or documents that have not been permitted to be published, information classified as state secrets or business secrets provided by the competent authority or the person requesting the appraisal to conduct the appraisal.

2. The act of exploiting the status of an appraiser and appraisal activities for personal gain stipulated in point a, Clause 3, Article 8 of Decree 97/2010/NĐ-CP shall be understood as the act of exploiting the status of an appraisal organization, appraiser, or participation in appraisal activities to influence related parties for improper gains.

3. The intentional act of issuing false appraisal conclusions stipulated in point b, Clause 3, Article 8 of Decree 97/2010/NĐ-CP shall be understood as the intentional issuance of appraisal conclusions that are not objective and do not correspond to the information and documents provided for the appraisal.

Section 2

Infringement of Industrial Property Rights

Article 8. Acts infringing industrial property rights prescribed in Articles 10, 11, and 12 of Decree No. 97/2010/ND-CP

1. An act shall be concluded as an act infringing industrial property rights prescribed in Articles 10, 11, and 12 of Decree No. 97/2010/ND-CP when it meets all conditions stipulated in Article 5 of Decree No. 105/2006/ND-CP amended.

2. Evidence proving the subject's status of industrial property rights and the right to request handling of violations by the subject shall be determined according to the provisions of Article 24 of Decree No. 105/2006/ND-CP amended and Article 24 of Decree No. 97/2010/ND-CP. Evidence proving the subject's status of industrial property rights shall be further specified as follows:

a) Evidence proving the owner of the trade name includes documents and objects proving the first lawful use of the trade name in the business field and area meeting the protection conditions prescribed in Articles 76, 77, and 78 of the Intellectual Property Law;

b) Evidence proving the owner of a trade secret includes documents proving that the organization or individual legally holds and has implemented measures to protect information considered a trade secret as prescribed in Articles 84 and 85 of the Intellectual Property Law;

c) In cases where an industrial property object usage contract is not registered with the National Office of Intellectual Property but its content complies with the provisions from Article 141 to 144 of the Intellectual Property Law, such a contract shall be considered valid evidence for proving lawful usage of the industrial property object;

d) In cases where an industrial property object usage contract, trademark usage regulation, or geographical indication usage permit does not contain any agreement or provision limiting the right to request handling of violations by the person granted usage rights, such a person may carry out procedures to request handling of violations as prescribed in Decree No. 97/2010/ND-CP, provided that the rights holder does not have any objection in writing to the implementation of such procedures;

Besides the documents and evidence proving the subject's status of rights as prescribed in Article 24 of Decree No. 105/2006/ND-CP amended, the rights holder may submit copies of documents proving the subject's status of rights and present the original for verification;

3. The determination of the scope of protection of industrial property rights serving as the basis for determining acts infringing industrial property rights shall be carried out according to the provisions of Article 16 of Decree No. 103/2006/ND-CP amended and Article 6 of Decree No. 105/2006/ND-CP amended;

The determination of elements infringing industrial property rights shall be carried out according to the provisions of Articles 8, 9, 10, 11, 12, and 13 of Decree No. 105/2006/ND-CP amended;

4. Some notes on determining elements infringing rights for patents:

a) 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 (independent or dependent) of the patent application/patent 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:

(i) Two technical features are deemed identical if they have the same nature, purpose, method of achieving the purpose, and relationship with other features as stated in the application;

(ii) Two technical features are deemed equivalent if they have similar nature or can replace each other, have the same purpose and method of achieving the basic purpose;

b) 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 application, the examined product/part of a product/process shall be deemed non-identical/non-equivalent to the product/part of a product/process protected under that point;

5. Some notes on determining elements infringing rights for designs:

a) A product/part of a product under examination shall be deemed a copy of a protected design if that product/part of a product contains all basic design features of the protected design;

b) A product/part of a product under examination shall be deemed essentially a copy of a protected design if that product/part of a product contains almost all basic design features of the protected design, differing only in design features that are not easily recognizable or memorable;

c) In cases where the overall design features of a product/part of a product under examination are deemed a copy or essentially a copy of the overall design features of at least one product in a set of products belonging to a protected design, it shall also be deemed an infringement of the protected design;

d) Basic design features of a protected design are understood as design features that are easily recognizable and memorable, used to distinguish the overall design from other designs. The set of basic design features may include shapes, lines, relationships between shapes and/or lines, color characteristics determined based on photographs/drawings accompanying the Design Patent Certificate;

6. Some notes on determining elements infringing rights for trademarks:

a) The basis for assessing the likelihood of confusion between a sign and a protected trademark includes:

(i) The scope of protection of the trademark as a whole and its components; the similarity of the sign with the trademark as a whole and with the distinguishing components of the trademark, especially the component that leaves a strong impression on consumers;

(ii) The functional and practical relationship of goods/services; commercial practices in purchasing, distribution, selection, and use of goods/services; conditions, methods, locations of displaying, distributing, marketing, promoting, and selling goods/services.

(iii) Characteristics of the consumer object of goods and services; the degree of attention of consumers when choosing and buying goods and services;

(iv) Other criteria such as: practical use and protection of similar trademarks for the same type of goods; influence of other factors promoting association about the relationship between the goods and services under examination and those protected;

(v) Evidence of confusion to consumers may be used to support the assessment of the likelihood of confusion caused by the use of the sign but is not a mandatory condition for concluding on the likelihood of confusion caused by the use of the sign.

b) Some considerations when determining acts infringing rights over trademarks:

(i) In the case of using a sign identical with the trademark for goods and services identical with those specified in the Certificate of Trademark Registration or the International Registration Certificate protected in Vietnam or published in the World Intellectual Property Organization's International Trademark Gazette, it is unnecessary to consider the likelihood of confusion for consumers regarding goods and services bearing the trademark;

(ii) In the case of using a sign identical with the trademark for similar or related goods and services; using a sign similar to the trademark for identical, similar, or related goods and services listed in the Certificate of Trademark Registration or the International Registration Certificate protected in Vietnam or published in the World Intellectual Property Organization's International Trademark Gazette, it is necessary to consider the likelihood of confusion for consumers regarding goods and services bearing the trademark.

c) Some considerations when determining acts infringing rights over well-known trademarks:

(i) In the case of using a sign identical or similar to a well-known trademark or a sign in the form of a translation or phonetic rendering of a well-known trademark for any goods and services, including those that are not identical, similar, or related to the goods and services listed in the well-known trademark, it is necessary to evaluate the likelihood of confusion about the origin of the goods and services or the relationship between the user of the sign and the owner of the well-known trademark;

(ii) In the case of using a sign identical or similar to a well-known trademark as provided for in point (i) of clause 6 of this Article, which does not cause confusion about the origin of the goods and services but creates a misleading impression for consumers about the relationship between the user of the sign and the owner of the well-known trademark, it shall also be considered an act of infringement of industrial property rights;

(iii) When filing a request to handle violations concerning well-known trademarks, the right holder must provide evidence proving that the trademark has become well-known in Vietnam according to the criteria set forth in Article 75 of the Intellectual Property Law, regardless of whether the trademark has been registered for protection in Vietnam or not;

(iv) Before deciding to proceed with the violation handling procedure, the competent authority handling the violation bases its consideration and evaluation on the criteria set forth in Article 75 of the Intellectual Property Law to determine whether a trademark can be considered well-known in Vietnam. The competent authority imposing penalties may consult with the National Office of Intellectual Property and seek advice from advisory boards.

In the case where a well-known trademark in Vietnam is recognized through civil litigation procedures or by the decision of the National Office of Intellectual Property, the competent authority handling the violation may base its consideration on relevant documents to recognize the trademark as well-known in Vietnam if the recognition of the well-known trademark by these authorities at the time of the violation handling request remains appropriate.

7. Some considerations when determining elements of infringement of rights over trade names:

The basis for examining elements of infringement of rights over trade names is the scope of protection of the trade name determined based on evidence showing the lawful use of the trade name, including identifying the business entity, business premises, business activities, and products or services bearing the trade name, specifically as follows:

(i) Evidence proving that the trade name was used in the business area (for example: used in places where customers, business partners are present or have a reputation through advertising, marketing, distribution) within the legal business field (recorded in the business registration certificate, investment permit, certificate of eligibility for business in regulated industries, tax registration number, company charter registered with the competent authority or other legally valid documents);

(ii) The starting date and process of use: the trade name has been and continues to be known to business 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).

b) Business registration certificates, investment permits, certificates of eligibility for business, tax registration numbers, and company charters are considered evidence proving the legality of business operations under the trade name. The enterprise name recorded in the aforementioned permits is only considered a trade name when there are documents proving that the enterprise name is actually used in lawful business operations and meets the conditions for protection as stipulated in Articles 76, 77, and 78 of the Intellectual Property Law.

c) In cases where the use of trademarks, designs, copyrights, trade names, or geographical indications leads to conflicts and disputes, the handling shall follow the provisions of Article 6 of the Intellectual Property Law, Article 17 of Decree 103/2006/ND-CP amended, Article 29 of Decree 97/2010/ND-CP, and the following specific guidance:

(i) Based on documents and evidence proving the time of occurrence and establishment of rights in accordance with the principle that the right to the subject matter established earlier is protected.

Where all parties have evidence proving that their rights have been legally established, the parties 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 legal provisions.

(ii) On the basis of certificates of protection, certificates issued by competent authorities, related documents, and lawful agreements between the parties, the scope of protection for objects simultaneously protected under different intellectual property forms shall be determined.

(iii) In cases where trade names or geographical indications marks were used before the corresponding geographical indication or geographical indication mark was granted a certificate of protection, and both meet the conditions for protection as stipulated by law, the honest use of such objects shall not be considered a violation as provided for in points g and h of Clause 2, Article 125 of the Intellectual Property Law.

d) Where the simultaneous use of the objects referred to in point c of this clause affects the rights and interests of third parties, consumers, and society, and there is a request to handle violations, the competent authority handling the violation shall require the related parties to negotiate and record in writing the conditions and methods of using such objects according to the procedures prescribed in Clause 2, Article 29 of Decree 97/2010/NĐ-CP. For those who continue to engage in acts of use deemed to infringe on another's industrial property rights without participating in negotiations or failing to comply with the recorded agreements, penalties will be imposed as prescribed in Decree 97/2010/NĐ-CP.

8. Some considerations when determining acts of infringement of rights concerning geographical indications:

a) The criteria for assessing the likelihood of confusion with geographical indications may be appropriately applied in a manner similar to the application of criteria for assessing the likelihood of confusion with registered trademarks.

b) Products or goods that violate may include:

(i) Products of the same type bearing a sign identical to a geographical indication produced in a locality within the region covered by the protected geographical indication but which do not meet the specific quality conditions of that geographical indication;

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

(iii) Products of the same type bearing a sign identical or similar to a geographical indication produced in a locality within the region covered by the protected geographical indication and meeting the specific quality conditions, but the organization or individual producing the product has not been authorized by the managing organization of the geographical indication to use it;

(iv) Similar products bearing a sign identical or similar to a geographical indication aimed at exploiting the reputation and credibility of the geographical indication and/or causing a misleading impression 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.

9. Some considerations when determining acts of infringement of industrial property rights as prescribed in Clause 11, Article 11, Clause 10, Article 12, and Clause 7, Article 14 of Decree No. 97/2010/NĐ-CP:

a) Where an organization or individual carries out the act of affixing an infringing sign on a product or goods during the production process, the competent authority shall handle it as a production act.

b) Where an organization or individual does not carry out a production act but only carries out the act of affixing an infringing sign on a product or goods or its packaging, the competent authority shall handle it as an act of affixing an infringing sign.

10. Some considerations when handling acts of infringement of industrial property rights in export or transit:

The competent authority shall handle acts of infringement in the export or transit of goods infringing on industrial property rights where there is evidence confirming that the declaration of exported goods or goods in transit is inaccurate and intended to introduce such goods into circulation in Vietnam.

11. Where an organization or individual reuses, repairs, or recycles products or product packaging bearing trademarks, trade names, or geographical indications that have been put on the market by the right holder to create another product, such actions shall also be considered acts of infringement of industrial property rights or unfair competition if such use causes confusion among consumers regarding the commercial origin of the product, the business entity, business activities, or characteristics of the product as stipulated in the relevant provisions on acts of infringement of industrial property rights and unfair competition.

This provision shall not apply where the product already clearly indicates that it is reused, repaired, or recycled, and has removed signs that could cause confusion among consumers regarding the commercial origin of the product, the business entity, business activities, or characteristics of the product as stipulated in the relevant provisions on acts of infringement of industrial property rights and unfair competition.

Article 9. Violation of the provisions of Article 13 of Decree 97/2010/NĐ-CP

1. The violation of the provisions of Article 13 of Decree 97/2010/NĐ-CP shall be applied in cases where organizations or individuals discover counterfeit labels, trademarks, or geographical indications on products that have not yet been attached to the products but there is sufficient evidence to determine that these labels, trademarks, or products will be attached to the products to be brought to the market (for example, through purchase contracts, printing contracts, declarations with competent authorities, packaging samples, product samples with counterfeit labels, trademarks, or products being stored, transported, or sold).

2. Labels, trademarks, and other items specified in Article 13 of Decree 97/2010/NĐ-CP refer to various types of manufacturer, distributor, or importer labels intended for attachment to products, including quality control labels; product labels; stickers; product packaging; detachable parts of the product that cannot be circulated independently, bearing counterfeit trademark or geographical indication marks.

Article 10. Parallel Import

1. Parallel import as stipulated in Clause 2, Article 28 of Decree 97/2010/NĐ-CP refers to the act of organizations or individuals importing products from the rightful owner or organizations or individuals authorized to use the intellectual property rights, including compulsory licensing, who have already put the products on the foreign market, despite not having the consent of the intellectual property right holder.

2. Organizations or individuals engaging in parallel import shall not be subject to administrative penalties. Some examples of parallel import behavior include:

a) Company A holds a patent monopoly for Product X protected in Vietnam. Company A grants its agent, Company B in Vietnam, exclusive rights to import and distribute Product X in Vietnam. Company C imports and brings into Vietnam Product X produced and sold by Company A in foreign markets, despite not having the consent of Company A and Company B.

b) Company A holds a design patent for Product G protected in Vietnam. Company A licenses Company B to produce Product G with the design patent in Vietnam, while also licensing Company C to produce Product G with the design patent in another country. Company D imports and brings into Vietnam Product G with the design patent produced and sold by Company C in foreign markets, despite not having the consent of Company A, Company B, and Company C.

c) Company A holds Trademark Z protected for Product T in foreign countries. Company A establishes a branch, Company B, in Vietnam and agrees for Company B to file and hold the Certificate of Registration for Trademark Z for Product T in Vietnam. Company C imports and brings into Vietnam Product T with Trademark Z produced and sold by Company A in foreign markets, despite not having the consent of Company A and Company B.

Article 11. Unfair Competition Behavior in the Field of Intellectual Property as stipulated in Article 14 of Decree 97/2010/NĐ-CP

1. Misleading Commercial Indications

a) The entity entitled to request handling of misleading commercial indication behavior is a business entity that has widely and consistently used commercial indications as defined in Clause 2, Article 130 of the Intellectual Property Law in lawful business activities in Vietnam, recognized by consumers for the reputation of the business entity and goods or services bearing such commercial indications.

b) Commercial indications as defined in Clause 2, Article 130 of the Intellectual Property Law include intellectual property objects (trademarks, trade names, geographical indications) and the following objects:

(i) "Product label" means written, printed, drawn, photographed characters, drawings, images affixed, printed, attached, cast, engraved, carved directly onto products, packaging of goods, or other materials attached to products, packaging of goods, conveying essential information about the goods for consumers to recognize, choose, consume, and use; for manufacturers and traders to promote their goods; and for competent authorities to conduct inspections and supervision.

(ii) "Business slogan" means a group of words appearing alongside a company name or product trademark to emphasize the business purpose or criteria or target customer group of the product.

Example: Bitis’: “Caring for Vietnamese Feet”

Trung Nguyen Coffee: “Inspiring Creativity”;

(iii) "Business symbol" means a unique sign, lettering, drawing, shape designed and considered a symbol of the business used in business activities.

(iv) “Product packaging design” means the design and decoration of product packaging, including shape, lines, drawings, letters, numbers, colors, presentation methods, color combinations, layout, and arrangement of the above elements creating a distinctive impression or characteristic of the product packaging.

c) Misleading commercial indications contain signs (constituent factors, presentation methods, combination between elements, colors, overall impression to consumers) identical or similar enough to cause confusion with corresponding commercial indications of the entity entitled to request handling of unfair competition behavior used for identical or similar goods or services.

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

d) The entity requesting handling of unfair competition behavior regarding the use of misleading commercial indications must provide evidence to prove:

(i) The business subject has widely and steadily used the trade indication, known to many consumers in Vietnam, which may include: information on advertising, marketing, exhibition displays; sales revenue; number of products sold; distribution agency systems, joint ventures, associations; scale of investment; evaluations by state agencies, mass media, consumer polls, and other information reflecting the business subject's reputation associated with the trade indication in its business activities in Vietnam;

(ii) The party requested to handle has used the trade indication causing confusion on goods, packaging, business means, service means, and advertising means;

(iii) The party requested to handle continues to use the trade indication causing confusion despite having been requested by the rights holder to cease using or change it;

2. Acts of registering and holding the right to use or using domain names

a) The subject entitled to request handling of acts of registering and holding the right to use or using domain names is the owner of trademarks, geographical indications, or trade names that have widely and steadily used these objects in lawful business operations in Vietnam, known for their reputation and fame among consumers in related fields, and whose industrial property rights and goods or services bearing trademarks, geographical indications, or trade names are recognized;

b) Acts of registering and holding the right to use or using domain names shall be considered unfair competition acts concerning industrial property in Vietnam, 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:

(i) Using the national domain name "vn" containing parts of letters that are identical or similar enough to cause confusion with registered and used trademarks, trade names, or geographical indications for advertising, introducing products, offering goods or services that are identical, similar, or related on electronic information pages linked to such domain names, causing confusion and damage to the reputation or material interests of the owners of trademarks, trade names, or geographical indications;

(ii) Registering and holding the right to use the national domain name "vn" containing parts of letters identical to well-known trademarks, trade names, or geographical indications in Vietnam but not putting the domain name into specific use within one year, and there is evidence proving that organizations or individuals only register and hold the right to use the domain name to sell it for profit or to obstruct the owners of protected trademarks, trade names, or geographical indications from registering domain names;

c) The subject requesting handling of acts of registering and holding the right to use or using domain names shall be considered unfair competition acts must provide evidence to prove:

(i) The rights holder has widely and steadily used trademarks, geographical indications, or trade names, known for their reputation and fame among consumers in Vietnam, and whose industrial property rights and goods or services bearing trademarks, geographical indications, or trade names are recognized (which may include information on advertising, marketing, exhibition displays; sales revenue; number of products sold; distribution agency systems, joint ventures, associations; scale of investment; evaluations by state agencies, mass media, consumer polls, and other information reflecting the business subject's reputation, goods or services bearing trademarks, geographical indications, or trade names) in its business activities in Vietnam;

(ii) The party requested to handle has used the domain name on the Internet to advertise, introduce products, offer goods or services that are identical, similar, or related, causing damage to the reputation, fame, or material interests of the owners of protected trademarks, trade names, or geographical indications;

The party requested to handle continues to use the trademark, trade name, or geographical indication causing confusion through the domain name despite having been notified and agreed upon reasonable conditions by the trademark, trade name, or geographical indication owner but not accepted;

(iii) The party requested to handle has registered but not put into operation the domain name containing parts of letters identical to widely used and well-known trademarks, trade names, or geographical indications in Vietnam within one year, and there is evidence proving that the party requested to handle only registers and holds the right to use the domain name to sell it for profit or to obstruct the owners of protected trademarks, trade names, or geographical indications from registering domain names, despite being notified and agreed upon reasonable conditions by the industrial property rights holder but not accepted;

(iv) The party requested to handle does not have legitimate rights or interests in the registered and protected trademarks, geographical indications, or trade names of the rights holder;

Chapter III

PROCEDURES FOR SUBMITTING COMPLAINTS AND HANDLING VIOLATIONS

Article 12. Petition and accompanying evidence for handling violations

1. A petition requesting the handling of violations must meet the conditions stipulated in Article 26 of Decree 97/2010/NĐ-CP.

2. Regarding the documents and evidence accompanying the petition:

a) Copies of certificates, intellectual property rights certificates, certificates, and other documents shall be considered valid if the right holder presents the original for comparison or a certified copy issued by an authorized agency or a copy confirmed by the issuing authority. The staff receiving the file signs to confirm the copies that have been compared with the originals and there is no need for confirmation from a notary office or the issuing authority of the certificates, intellectual property rights certificates, or certificates.

b) The explanation provided by the right holder (regarding revenue, reputation, advertising, evidence of widespread use, copies of certificates, intellectual property rights certificates from other countries) to the violation handling agency shall be 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 legally 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 the documents provided by the party requested to handle the violation.

Article 13. Submitting a petition to request handling of violations

1. In a petition requesting the handling of violations, the right holder may request the handling of:

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 a petition to request the handling of one or more organizations or individuals carrying out violations in the same locality, the right holder only needs to submit one petition to the competent authority in that locality;

d) In cases where the right holder submits a petition to request the handling of one or more organizations or individuals carrying out violations in different localities, the right holder may submit a petition to the competent authority in each locality or submit one petition to the central competent authority to handle violations in those localities.

2. Where multiple authorities have concurrent jurisdiction over a violation, the right holder may choose one of these authorities to submit the petition.

Example: The Inspectorate of the Ministry of Science and Technology, the Inspectorate of the Ministry of Information and Communications, and the Competition Management Department all have the authority to handle unfair competition violations related to domain names. The right holder may choose to submit a petition to request administrative handling of unfair competition violations related to domain names according to the procedures and formalities stipulated in Decree 97/2010/NĐ-CP at one of the three aforementioned agencies.

3. In cases where the right holder simultaneously submits petitions to multiple competent authorities to handle the same violation, the authority that accepts the petition first will have the jurisdiction to resolve it.

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

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

c) After conducting inspections and investigations, if the violation handling agency becomes aware that another agency has conducted inspections and investigations, the violation handling agency shall request relevant agencies to cooperate in handling the matter and unify for one agency to conduct the penalty procedures. If another agency has already handled the violation but during the inspection and investigation period, it is still found that the organization or individual is continuing to carry out the violation, the violation handling agency shall handle the violation with aggravating circumstances for repeat offenses.

d) During the process of handling violations, if criminal elements are discovered, the violation handling agency shall transfer the case file to the investigative authority with jurisdiction at the location of the violation.

Article 14. Delegation to Request Handling of Violations

The delegation document to request handling of violations, when submitted together with the request for handling violations, must meet the conditions stipulated in Article 25 of Decree 97/2010/NĐ-CP and note the following cases:

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

2. In the case where the original delegation document includes the content of delegating the procedures for handling violations, protecting, and enforcing 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 by the authority holding the original delegation document.

Article 15. Examination of Requests for Handling Violations

1. In the case where the request for handling violations already has sufficient evidence regarding counterfeit goods infringing industrial property rights, goods infringing trademark, geographical indication, design rights, the competent authority shall cooperate with the right holder to conduct inspections, investigations, and handle violations according to point d, Clause 2, Article 27 of Decree 97/2010/NĐ-CP.

2. In the case where the request for handling violations does not yet have sufficient evidence regarding counterfeit goods infringing industrial property rights, goods infringing trademark, geographical indication, design rights; requests for handling violations concerning patents, layout-designs, trade names, business secrets; requests for handling unfair competition acts involving industrial property rights, the competent authority may require the parties to provide information, evidence, explanations within ten days from the date specified in the notification. If there are valid reasons, they may request in writing from the competent authority to extend the response time but not exceeding thirty days from the initial date specified in the notification according to point c, Clause 2, Article 27 and point a, Clause 3, Article 27 of Decree 97/2010/NĐ-CP.

a) In the case where the parties have provided explanations as required by the competent authority but new circumstances or evidence emerge in the case, the competent authority may require the parties to provide further explanations, rebuttals, and additional evidence according to Clause 6, Article 28 of Decree No. 97/2010/NĐ-CP within the corresponding period as stipulated above.

The parties may provide to the competent authority handling violations the specialized opinion document of the state management agency on intellectual property, the conclusion of an industrial property appraisal, decisions resolving disputes, decisions handling violation cases related or similar issued by the competent authority, and other documents and evidence to prove their claims, arguments, explanations, and clarify the circumstances of the case.

b) In the case where the explanation documents of 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 recording the opinions of the parties are considered as evidence for resolving the case.

c) In the case where the parties reach an agreement on a resolution method consistent with intellectual property laws and do not affect the rights and interests of third parties, consumers, and society, the competent authority shall record this agreement and issue a notice to stop handling the case according to Clause 2, Article 29 and point c, Clause 2, Article 30 of Decree 97/2010/NĐ-CP.

Article 16. Provision of information for handling violations

1. In cases where there is a request from the subject of industrial property rights or from the authority responsible for resolving disputes or imposing penalties for violations according to Clause 5, Article 28 of Decree 97/2010/NĐ-CP, the competent authority handling the violation shall provide copies of minutes, documents, samples, photographs related to the content of the violation handling, provided that the provision of such information and documents does not affect the effectiveness of the case handling and does not fall under the circumstances requiring confidentiality as prescribed by law.

2. In cases where there is a request for handling violations as stipulated in Article 26 of Decree 97/2010/NĐ-CP, the competent authority imposing penalties shall send conclusions, decisions on penalties, notifications of refusal or suspension of violation handling to organizations or individuals requesting the handling of violations according to the procedures prescribed in Clause 4, Article 33 of Decree 97/2010/NĐ-CP.

Article 17. Coordination in Handling Violations Related to Business Names

1. Upon receiving a request to handle acts infringing industrial property rights concerning trademarks, geographical indications, trade names, or unfair competition acts related to business names, the competent authority handling violations may require the party being requested to handle to provide information, documents, evidence for explanation according to Point a, Clause 3, Article 27 of Decree 97/2010/NĐ-CP or conduct inspections, verifications, and collection of evidence. Based on reviewing the documents and evidence, the competent authority handling violations shall issue one of the following documents:

a) A conclusion document regarding the use of a business name as a violation of industrial property rights, which evaluates and concludes whether the business name contains elements infringing upon protected trademarks, geographical indications, or trade names; whether using the business name on goods, business means, service means, signs, transaction papers in related business fields constitutes an act of infringing industrial property rights or unfair competition;

b) A decision on administrative penalties within its jurisdiction, including measures to rectify consequences such as compelling the violator to change the business name.

2. In cases where the competent authority handling violations issues a conclusion document regarding the use of a business name as a violation according to Point a, Clause 1 of this Article, the competent authority handling violations shall send that document to the right holder, the violator, and create conditions for the parties to negotiate and reach an agreement within fifteen days from the date of receipt of the conclusion document:

a) If the parties have reached an agreement and proposed a solution in compliance with intellectual property laws, without affecting the rights and interests of third parties, consumers, and society as prescribed in Clause 2, Article 29 of Decree 97/2010/NĐ-CP, the competent authority shall issue a notification document recording the agreement and suspending the case resolution;

b) If the parties fail to reach an agreement within the prescribed time limit, the party requesting the handling of the violation shall submit the conclusion document regarding the use of a business name violating industrial property rights according to Point a, Clause 1 of this Article along with a request to the business registration authority to require the business with an infringing business name to change its business name in accordance with Article 17 of Government Decree No. 43/2010/NĐ-CP dated April 15, 2010 on business registration (hereinafter referred to as Decree 43/2010/NĐ-CP);

c) If the business with an infringing business name does not proceed with the procedure to change its business name as prescribed in Point a of this clause, the business registration authority shall notify the competent authority handling violations to conduct inspections, verifications, and handle the case according to the provisions of Decree 97/2010/NĐ-CP.

3. In cases where the competent authority handling violations issues a decision on administrative penalties according to Point b, Clause 1 of this Article:

a) The competent authority handling violations shall send the decision on administrative penalties to the relevant parties and the business registration authority to require the business to change its infringing business name in accordance with Article 17 of Decree 43/2010/NĐ-CP;

b) If the business with an infringing business name does not proceed with the procedure to change its business name as prescribed in Point a of this clause, the business registration authority shall base on the decision on administrative penalties to publish information about the penalty imposed on the business violating industrial property regulations on the national business registration portal.

Article 18. Coordination in Handling Violations Related to Domain Names

1. When receiving a request to handle unfair competition acts related to domain names, the competent authority for handling violations may require the party subject to handling to provide information, documents, evidence for explanation in accordance with point a, Clause 3, Article 27 of Decree 97/2010/NĐ-CP, or conduct inspections, examinations, verifications, and collection of evidence. Based on reviewing the documents and evidence, the competent authority for handling violations shall issue one of the following documents:

a) A conclusion document regarding the domain name being identical or similar enough to cause confusion with another person's protected trademark, trade name, or geographical indication that they do not have the right to use; and whether registering and using such a domain name constitutes unfair competition in industrial property or not.

b) A decision to impose administrative penalties within its jurisdiction, including measures to rectify consequences such as compelling the recovery of the infringing domain name.

2. In cases where the competent authority for handling violations issues a conclusion document regarding the infringing domain name in accordance with point a, Clause 1 of this Article, the competent authority shall send the conclusion document to the rights holder, the violator, and facilitate negotiations between the parties within thirty days from the date of receipt of the conclusion document.

a) If the parties reach an agreement and propose a solution in compliance with intellectual property laws, without affecting the rights and interests of third parties, consumers, and society as stipulated in Clause 2, Article 29 of Decree 97/2010/NĐ-CP, the competent authority shall issue a notification document recording the agreement and cease handling the case.

b) If the parties fail to reach an agreement within the prescribed time limit, the competent authority for handling violations shall conduct inspections, examinations, and handle the violation.

3. In cases where the competent authority for handling violations issues a decision to impose administrative penalties including measures to rectify consequences "compelling the recovery of the infringing domain name," one year after the effective date of the administrative penalty decision or the decision on handling competition disputes, if the party responsible for enforcement does not voluntarily comply, the competent authority for handling violations shall send a document requesting the Vietnam Internet Center to carry out the recovery of the domain name. The procedures and formalities for recovering the domain name shall be carried out in accordance with laws on information technology, telecommunications, the Internet, and regulations on managing and using Internet resources issued by the Ministry of Information and Communications.

Article 19. Coordination in Handling Violations Related to Products and Goods Affecting Health, Environment, and Social Safety

1. When receiving a request to handle or discovering acts infringing industrial property rights related to products and goods affecting health, environment, and social safety as stipulated in point b, Clause 3, Article 24 of Decree 97/2010/NĐ-CP, the competent authority for handling violations may require the party subject to handling to provide information, documents, evidence for explanation in accordance with point a, Clause 3, Article 27 of Decree 97/2010/NĐ-CP, or cooperate with the rights holder to conduct inspections, examinations, verifications, and collection of evidence. Based on reviewing the documents and evidence, the competent authority for handling violations shall issue one of the following documents:

a) A conclusion document regarding the infringement of industrial property rights.

b) A decision to impose administrative penalties within its jurisdiction.

2. In cases where the competent authority for handling violations issues a conclusion document regarding the infringement of industrial property rights as stipulated in point a, Clause 1 of this Article, the competent authority shall send the conclusion document to the rights holder and the violator and facilitate negotiations between the parties within thirty days from the date of receipt of the conclusion document.

a) If the parties reach an agreement and propose a solution in compliance with intellectual property laws, without affecting the rights and interests of third parties, consumers, and society as stipulated in Clause 2, Article 29 of Decree 97/2010/NĐ-CP, the competent authority for handling violations shall issue a notification document recording the agreement and cease handling the case.

b) If the parties fail to reach an agreement within the prescribed time limit, the competent authority for handling violations shall conduct inspections, examinations, and handle the violation.

3. The competent authority for handling violations shall send the violation conclusion document, the notification document recording the agreement of the parties, or the decision to impose administrative penalties to the relevant state management agencies in the industry or field for coordination in handling violations in considering refusal, extension, or suspension of product circulation permits in accordance with the law.

Article 20. Handling cases when disputes arise

1. In cases where disputes arise as provided for in Clause 1, Article 29 of Decree No. 97/2010/NĐ-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 in dispute, complaint, or accusation;

b) The scope of protection of industrial property rights related; 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, changing the scope of protection of related industrial property rights.

2. Suspension of handling violations when disputes arise as provided for in point a, Clause 2, Article 30 of Decree No. 97/2010/NĐ-CP:

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

(i) Upon receipt of a notification from the competent authority in the registration procedure that has accepted an application to revoke, terminate the validity of the certificate of protection, or a complaint about the scope of protection of industrial property rights related to the object in the application for handling the violation; or a court's decision to accept a case involving infringement; or a complaint or dispute over industrial property rights related to the object in the application for handling the violation;

(ii) When it is found that the matter involves a contractual dispute between parties regarding the use of the industrial property object.

b) The notification of suspension of resolution must clearly state the basis, reasons, time of suspension, rights and obligations of the relevant parties, and be sent to the party requesting the handling of the violation, the party being requested to handle the violation, and the competent authority resolving the dispute or complaint.

3. The competent authority requests the right holder to explain and commit according to the provisions of point b, Clause 1, Article 29 of Decree No. 97/2010/NĐ-CP and considers the progress of handling based on the following grounds:

a) The party being requested to handle the violation has submitted an application to revoke, terminate the validity of the certificate of protection but has not yet been accepted by the competent authority;

b) The party being requested to handle the violation has submitted an application to register protection for the object mentioned in the application for handling the violation at the agency establishing industrial property rights but has not yet received a decision granting the certificate of protection;

c) The party requesting the handling of the violation requests continued handling and commits to liability for compensation according to the provisions of point b, Clause 2, Article 35 of Decree No. 97/2010/NĐ-CP in cases where the administrative penalty decision is amended, revoked, or suspended in effect according to the decision resolving the dispute of the competent authority.

4. Refusal to handle violations

Before issuing a notification of acceptance of the application for handling the violation, if the violation handling agency receives a notification of acceptance of the application from the competent authority as provided for in point a, Clause 2 of this Article, the violation handling agency issues a Notification of Refusal to Handle Violations according to the provisions of point a, Clause 1, Article 30 of Decree No. 97/2010/NĐ-CP.

Article 21. Collection, payment of fines and management, use of paid administrative penalties

The collection, payment of fines; management, use of paid administrative penalties in the field of industrial property and fine receipts are carried out in accordance with the provisions of Government Decree No. 124/2005/NĐ-CP dated October 6, 2005, stipulating fine receipts, management, and use of paid administrative penalties, and the provisions of Circular No. 47/2006/TT-BTC dated May 31, 2006, of the Ministry of Finance guiding certain provisions of Government Decree No. 124/2005/NĐ-CP mentioned above.

Article 22. Obligation to support of the rights holder in inspection, examination, verification, and handling of violations

1. The rights holder who requests handling of violations may propose the content of technical cooperation support, including information, documents, means of transportation, technical equipment, and funding for supporting the competent authority in investigation, verification, evidence collection, processing of infringing objects and means according to point d, Clause 2, Article 27, Clause 5, Article 36, and Clause 3, Article 37 of Decree No. 97/2010/NĐ-CP.

2. Costs for investigation, verification, evidence collection, processing of infringing objects and means in the field of industrial property mentioned in Clause 1 of this Article shall be considered reasonable costs for protecting industrial property rights and shall be accounted for in production costs as stipulated in Article 32 of Decree No. 103/2006/NĐ-CP amended.

3. The competent authority handling violations has the responsibility to use the support funding according to the following principles:

a) To use in accordance with the content of cooperation and support proposed by the rights holder requesting handling of violations, provided that such contents of cooperation and support do not contravene the provisions of the law;

b) To ensure transparency, avoid overlap with expenses funded from the state budget, and must be recorded separately in accounting books;

c) At the end of the fiscal year, the competent authority imposing penalties has the responsibility to report to the higher-level financial authority for monitoring and controlling the use of the rights holder's support funding.

Chapter IV

EFFECTIVE DATE OF IMPLEMENTATION

Article 23. This Circular takes effect 45 days from the date of issuance. Matters not yet resolved on the effective date of this Circular shall be handled in accordance with the provisions of this Circular.

During implementation, if any issues arise or difficulties occur, agencies, organizations, and individuals should reflect them to the Ministry of Science and Technology for timely consideration and resolution./.