Circular No. 44/2011/TT-BTC guiding anti-counterfeiting work and intellectual property rights protection in customs affairs

 

CIRCULAR

GUIDELINES FOR COMBATING FAKE GOODS AND PROTECTING INTELLECTUAL PROPERTY RIGHTS IN THE CUSTOMS FIELD

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

Pursuant to the Customs Law No. 29/2001/QH10 dated June 29, 2001; the Law Amending and Supplementing Certain Articles of the Customs Law No. 42/2005/QH11 dated June 14, 2005;

Pursuant to the Law on Complaints and Petitions No. 09/1998/QH10 dated December 2, 1998; the Law Amending and Supplementing Certain Articles of the Law on Complaints and Petitions No. 26/2004/QH11 dated June 15, 2004; the Law Amending and Supplementing Certain Articles of the Law on Complaints and Petitions No. 58/2005/QH10 dated November 29, 2005;

Pursuant to the Administrative Violation Handling Decree dated July 2, 2002; the Decree Amending and Supplementing Certain Articles of the Administrative Violation Handling Decree dated April 2, 2008;

Pursuant to 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 provisions of the Intellectual Property Law regarding the protection of intellectual property rights and state management of intellectual property;

Pursuant to Decree No. 154/2005/NĐ-CP dated December 15, 2005 of the Government detailing certain provisions of the Customs Law on customs procedures, inspection, and supervision;

Pursuant to the Prime Minister's Decision No. 65/2010/QĐ-TTg dated October 25, 2010 promulgating regulations on responsibilities and coordination mechanisms for activities among state management agencies in combating smuggling, fake goods, and commercial fraud;

Pursuant to the Government's Decree No. 118/2008/NĐ-CP dated November 27, 2008 stipulating the functions, tasks, powers, and structure of the Ministry of Finance;

To implement the Government's Resolutions No. 25/NQ-CP dated June 2, 2010 on simplifying administrative procedures within the scope of the functions of ministries and sectors and No. 68/NQ-CP dated December 27, 2010 on simplifying administrative procedures within the scope of the functions of the Ministry of Finance;

The Ministry of Finance hereby guides the work of combating fake goods and protecting intellectual property rights in the customs field as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of application

This Circular guides the work of combating fake goods and protecting intellectual property rights in the customs field.

Article 2. Scope of Application

Customs authorities at all levels; export and import enterprises; organizations and individuals who are owners of intellectual property rights, owners of genuine goods that have been counterfeited or their lawful representatives; other organizations and individuals related thereto.

Article 3. Explanation of Terms

The terms used in this Circular are understood as follows:

1. Fake goods include:

a) Quality and function imitations: goods without utility value or with utility value not corresponding to their origin, natural characteristics, name, and function;

b) Label and packaging imitations: goods bearing false names or addresses of other traders on labels or packaging of similar goods; goods bearing false indications of origin or place of production, packing, or assembly on labels or packaging;

c) Intellectual property imitations as provided for in Article 213 of the Intellectual Property Law, including goods bearing trademarks or signs that are identical or difficult to distinguish from registered trademarks or geographical indications for the same type of goods without permission from the trademark owner or the organization managing the geographical indication; goods that are reproductions produced without permission from the right holder or related rights holder;

d) Various types of stickers, quality seals, anti-counterfeit seals, warranty cards, shrink-wrap labels containing false information about trader names, addresses, origins of goods, places of production, packing, or assembly;

e) For goods subject to specialized management, if there are specific provisions in the law, those provisions shall be applied to determine counterfeit goods.

2. Protection of intellectual property rights in the customs field means the application by customs authorities of measures to control exported and imported goods related to intellectual property rights as stipulated in Article 216, Section 2, Chapter XVIII of the Intellectual Property Law and measures prescribed in Clause 8, 9, 10, Article 4, Chapter I and Section 5, Chapter III of the Customs Law and relevant regulatory legal documents to detect, combat, and handle acts infringing upon intellectual property rights in the customs field.

3. Suspension of customs procedures for goods suspected of infringing intellectual property rights is a measure carried out at the request of the intellectual property rights owner to collect information and evidence about the consignment so that the intellectual property rights owner may 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 for fake goods and goods infringing intellectual property rights involves checking customs declarations, related documents, and inspecting actual goods and conveyances by customs authorities to detect goods suspected of being fake or infringing intellectual property rights.

5. Customs supervision for fake goods and goods infringing intellectual property rights is a business practice measure applied by customs authorities to ensure the integrity of goods under customs management.

6. Customs control for fake goods and goods infringing intellectual property rights includes patrol, investigation, or other business practice measures applied by customs authorities to prevent and combat smuggling and illegal transportation of goods that are fake or infringing intellectual property rights across borders.

7. The request form includes: Request forms for inspecting and supervising exported and imported goods related to intellectual property rights and request forms for suspending customs procedures (the form is attached to this Circular).

8. The person submitting the request is the intellectual property rights owner (including the intellectual property rights owner and organizations or individuals to whom the owner has transferred intellectual property rights) or a person authorized by the intellectual property rights owner.

9. Infringement of intellectual property rights refers to 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 to intellectual property rights, genuine goods, and counterfeit goods.

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

2. The subject of intellectual property ownership, the owner of genuine goods, or their authorized representative may participate with customs authorities in activities such as 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 where necessary to protect trade secrets or state secrets as provided by law.

3. To lodge complaints or lawsuits against decisions on handling counterfeit goods, goods infringing intellectual property rights, and the application of export and import control measures related to intellectual property by customs authorities according to laws on complaints and denunciations and administrative litigation procedures.

4. Provide customs authorities with information and documents related to suspected exported or imported goods infringing intellectual property rights or counterfeit goods.

5. Support and cooperate with customs authorities in the work of processing and destroying goods infringing intellectual property rights or counterfeit goods.

Article 5. Powers and Responsibilities of Customs Authorities

1. Implement and apply customs inspection, supervision, and control measures as prescribed by customs, commercial, and intellectual property laws for goods suspected of being counterfeit or infringing intellectual property rights.

2. Explain and guide organizations and individuals to comply with laws on combating counterfeit goods and enforcing intellectual property rights, including Customs Law, Intellectual Property Law, and this Circular. Notify organizations and individuals in writing about the results of case resolution and handling.

3. Coordinate with state management agencies and functional forces responsible for combating counterfeit goods and protecting intellectual property rights in anti-counterfeiting and enforcement activities according to current laws.

4. Require relevant individuals and organizations to submit and present documents and evidence to clarify doubts raised by customs authorities regarding exported or imported goods infringing intellectual property rights or counterfeit goods.

5. Resolve complaints and lawsuits from organizations and individuals concerning the handling of counterfeit goods, goods infringing intellectual property rights, and the application of export and import control measures related to intellectual property by customs authorities according to laws.

6. Implement reporting systems and retain documents and files related to anti-counterfeiting and intellectual property protection activities according to current customs regulations.

Chapter II

CUSTOMS INSPECTION AND SUPERVISION FOR COUNTERFEIT GOODS AND GOODS RELATED TO INTELLECTUAL PROPERTY RIGHTS

PART 1

CUSTOMS INSPECTION AND SUPERVISION FOR COUNTERFEIT GOODS DURING CUSTOMS PROCEDURES

Article 6. Customs Inspection

1. During the customs clearance process for exported and imported goods, customs authorities have the responsibility to:

a) Check and compare the declared information on the goods' name, brand, origin, value, packaging method, quality, and transportation route provided by the declarant on the customs declaration form with the information collected by customs authorities to identify signs of counterfeit goods.

b) Compare the conclusions of state management agencies on exported and imported goods, the results of customs file inspections, with the actual inspection results of the goods.

c) Compare the inspection results with legal provisions on counterfeit goods.

2. When discovering goods showing signs of violation in cases such as:

- Imported goods not complying with labeling requirements under Government Decree No. 89/2006/NĐ-CP dated September 30, 2006, on product labeling. For example, food additives without production date or usage instructions; imported cosmetics without quantity or ingredient labeling.

- State inspection conclusions on quality or quality testing results determining that goods do not meet import or export quality standards or technical regulations. For example, imported alcohol not meeting Vietnamese standards or announced standards; imported pharmaceuticals containing incorrect drug amounts or different drugs than those listed on the label.

- Goods included in lists or notifications by state management agencies indicating non-compliance with quality standards or not permitted for market circulation. For example, imported pharmaceuticals reported by health authorities as suspended due to non-compliance with quality standards.

- Information on product labels not matching accompanying documents, conformity marks, or goods exceeding their expiration date or having tampered expiration date markings on packaging.

- Using packaging from another manufacturer or products without barcode or barcodes inconsistent with declared origin on the customs declaration form or certificate of origin.

The Head of the Customs Sub-Department where violations are discovered shall consider applying administrative violation prevention measures and ensure administrative penalties according to current regulations and conduct further investigation measures on the goods as stipulated in Article 7 of this Circular.

3. In cases where goods showing signs of violation are identified based on information provided by the owner of genuine goods, the Head of the Customs Sub-Department where suspected violations are found shall immediately notify the owner of genuine goods and consider applying administrative violation prevention measures and ensuring administrative penalties according to current regulations and conducting further investigation measures on the goods as stipulated in Article 7 of this Circular.

Article 7. Verification and Handling of Goods

1. During the period when goods are being temporarily detained or measures to prevent them from being released are being applied as prescribed, the Customs Sub-department shall be responsible for performing the following tasks:

a) Requesting the owner of the genuine goods (when the owner has been identified) and the declarant to provide relevant documents concerning the goods (catalogs, appraisal conclusions, foreign documents, results of similar cases...).

b) Cooperating with the declarant and the owner of the genuine goods to take samples and select an appraiser to conduct an appraisal. The conclusion of the selected appraiser shall be binding on all parties.

c) In case the declarant and the customs authority cannot agree on selecting an appraiser, the customs authority shall select a technical organization designated for inspection to serve state management or an appraiser (in the event that the designated technical organization refuses in writing). The conclusion of the technical organization designated for inspection to serve state management or the appraiser shall be binding on all parties. If the declarant disagrees with this conclusion, they may file a complaint according to the provisions of the law.

Procedures for taking samples, sampling techniques, sample storage locations, sample retention periods, and photographing of goods shall be carried out in accordance with the guidelines set forth in Clauses 3, 4, 5, 6, and 7 of Article 15 of Circular No. 194/2010/TT-BTC dated December 6, 2010 issued by the Ministry of Finance.

d) Cooperating with anti-smuggling control forces in verification and investigation work as stipulated by regulations.

e) Reporting to the Provincial/City Customs Department and the General Department of Customs to promptly direct the resolution of complex cases involving goods of significant value, affecting multiple localities, government agencies, and international organizations.

f) Deciding to temporarily release goods for storage in accordance with Clause 4 of Article 25 of the Customs Law amended and supplemented in 2005 at the request of the owner to store the goods.

3. Upon completion of the temporary detention period or the period during which preventive measures are applied as prescribed, if there is sufficient basis to conclude that the goods are suspected of being counterfeit, the customs authority shall handle administrative violations in accordance with Chapter IV of the Circular.

4. In cases where goods that violate the law have criminal indications as prescribed in the Penal Code, the customs authority shall be responsible for transferring them to competent authorities to initiate investigations and prosecutions in accordance with the law.

5. Completing customs procedures for the consignment of goods in cases where it is concluded that the goods are not counterfeit. Complaint resolution or compensation claims by the owner due to the temporary detention of goods by the customs authority shall be handled in accordance with current regulations on complaint resolution and compensation.

PART 2

CUSTOMS INSPECTION AND SUPERVISION OF GOODS RELATED TO INTELLECTUAL PROPERTY RIGHTS DURING CUSTOMS PROCEDURES

Article 8. Customs Inspection

1. During the process of handling customs procedures for exported and imported goods, the customs authority shall be responsible for:

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

b) Comparing the results of the customs document inspection, actual goods inspection, and information check with the legal provisions on goods infringing intellectual property rights and the procedures for controlling exported and imported goods related to intellectual property rights.

2. When discovering goods suspected of infringing intellectual property rights, the Customs Sub-department shall implement notification in accordance with Article 9 of this Circular.

3. In cases where there is no information requesting protection of intellectual property rights but during the inspection process, the Customs Sub-department discovers and suspects that the imported goods are counterfeit in terms of intellectual property (for example, goods bearing the trademark of Vietnamese enterprises but imported from abroad without a processing contract).

The head of the Customs Sub-department shall direct the actual inspection of goods, taking samples or photographing the goods, exchanging and providing relevant information with the specialized unit on intellectual property rights at the General Department of Customs and the Provincial/City Customs Department to decide whether to complete customs procedures or temporarily detain the goods if the suspicion is found to be based on solid grounds.

Article 9. Notification regarding suspected goods  

1. The Customs Sub-Department shall notify the declarant about the suspected goods (according to form number 03-SHTT issued together with this Circular) and simultaneously fax such notification to the declarant.

2. Within three (03) working days from the date of issuing the notification on suspected goods, the Customs Sub-Department shall be responsible for performing the following tasks:

a) Deciding to temporarily suspend customs procedures after receiving the Request for Temporary Suspension of Customs Procedures and the guarantee amount (equal to twenty percent of the value of the consignment subject to suspension measures or a minimum of twenty million Vietnamese dong if the value of the consignment cannot be determined) or a bank guarantee or other financial institution's guarantee as stipulated in Clause 2, Article 217 of the Intellectual Property Law.

b) In cases where there is sufficient basis to confirm that the notified goods are counterfeit intellectual property goods, the Head of the Customs Sub-Department shall consider and decide to immediately apply administrative measures for handling according to Articles 214 and 215 of the Intellectual Property Law. At the same time, coordinate with supervisory forces at various levels to verify and collect information on the goods as prescribed.

c) Continue to process customs procedures for the consignment in cases where no Request for Temporary Suspension of Customs Procedures is received, no guarantee amount is received, or no bank guarantee or other financial institution's guarantee is received.

Article 10. Temporarily suspending customs procedures

1. The Customs Sub-Department decides to temporarily suspend customs procedures (according to form number 04-SHTT issued together with this Circular). The decision to temporarily suspend is sent by registered mail and simultaneously faxed to all relevant parties.

2. The period for temporarily suspending customs procedures is ten (10) working days, starting from the day the declarant requesting temporary suspension receives the decision to temporarily suspend customs procedures. In cases where there is a need for expert examination or consultation from state management agencies on intellectual property, the customs authority will continue to temporarily suspend customs procedures until receiving the examination results or expert opinions.

The Customs Sub-Department deciding to temporarily suspend may extend the suspension period after the declarant submits an extension request along with a guarantee amount or a bank guarantee or other financial institution's guarantee as prescribed by law and notify the declarant, the owner of the goods, and all relevant parties (according to form number 05-SHTT issued together with this Circular).

3. During the suspension period or the period of applying preventive measures as prescribed, the Customs Sub-Department deciding to temporarily suspend shall be responsible for performing the following tasks:

a) Requesting the owner of the goods, the owner of the intellectual property rights to provide relevant documents related to the goods (catalogs, expert examination conclusions, foreign documents, results of similar cases...).

b) Directly requesting expert examinations at organizations as stipulated in Clause 1, Article 40 of Decree 105/2006/NĐ-CP dated September 22, 2006, of the Government or seeking expert opinions from state management agencies on intellectual property.

c) Organizing for organizations and individuals to take samples to exercise the right to request expert examinations as stipulated in Clause 2 of Decree 105/2006/NĐ-CP dated September 22, 2006, of the Government. The sampling procedure, sampling techniques, storage location, and storage period of the samples shall be carried out according to the guidelines set forth in Clauses 3, 4, 5, and 6 of Article 15 of Circular No. 194/2010/TT-BTC dated December 6, 2010, of the Ministry of Finance.

d) Conducting supplementary expert examinations and re-examinations as stipulated in Article 50 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.

e) Coordinating and exchanging with state management agencies on intellectual property within the jurisdiction when disputes or complaints arise concerning the subject of rights, the ability to protect, the scope of protection of intellectual property rights, and the authority to handle violations.

g) Reporting to the Provincial or Municipal Customs Department and the General Department of Customs for timely guidance and resolution in cases where the suspended consignment has a high value; goods suspected of infringing famous trademarks; cases involving multiple localities, state agencies, international organizations; and disputes or complaints arising concerning the subject of rights, the ability to protect, the scope of protection of intellectual property rights, and the authority to handle violations.    

4. Upon completion of the suspension period for customs procedures or the period of applying preventive measures as prescribed, the Customs Sub-Department deciding to temporarily suspend shall be responsible for performing one or simultaneously performing the following tasks:

a) Initiating administrative proceedings when it is confirmed that the suspended goods infringe intellectual property rights based on the conclusion of the expert examination on intellectual property by the expert organization (in cases of requesting expert examination); expert opinions from state management agencies on intellectual property and other state management agencies (in cases of seeking expert opinions); documents and evidence provided by the intellectual property rights holder.

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

b) Completing customs procedures for the suspended goods according to Article 11 of this Circular.

c) Acting according to the court's opinion in cases where the applicant initiates civil litigation.

d) Transferring the case to other enforcement agencies of intellectual property rights for handling in cases where the violation is determined not to fall within the jurisdiction of the customs authority.

e) Temporarily suspending the handling process upon receipt of a document from the state management agency on intellectual property notifying about disputes or complaints concerning the subject of rights, the ability to protect, the scope of protection of intellectual property rights.

g) Transferring to the competent authority to conduct investigations and initiate prosecutions according to the law in cases where the violation is identified as having criminal elements as stipulated in the Penal Code.

Article 11. Continuing Customs Formalities

1. The Customs Sub-Department deciding to temporarily suspend shall be responsible for deciding to continue processing customs procedures for the consignment and notifying all relevant parties (according to form number 06-SHTT issued together with this Circular) in the following cases:

a) Not having received from the court a document confirming receipt of the application requesting resolution of disputes related to intellectual property rights infringement concerning the consignment of goods for which customs procedures have been suspended, and not deciding to accept the case for administrative violation proceedings against the exporter or importer of the consignment.

b) The decision to suspend customs procedures has been suspended or revoked pursuant to a decision resolving complaints or denunciations.

c) The person requesting suspension of customs procedures withdraws their request except where the exported or imported goods are counterfeit goods bearing intellectual property rights; counterfeit trademarks, labels, or other items bearing geographical indications.

d) The conclusion of the competent authority that there is insufficient basis to determine the act of infringement.

e) Other cases as prescribed by law.

2. Within ten (10) working days from the date of completing customs procedures for the consignment of goods that was suspended, the Customs Sub-Department shall be responsible for:

a) Issuing a written notice compelling the person who requested suspension of customs procedures to pay storage and warehousing fees, preservation costs of the goods, and other incidental costs to the customs authorities and relevant organizations, entities, or individuals in accordance with the laws on customs.

b) Refunding the remaining guarantee amount to the person who requested suspension of customs procedures after fulfilling the obligation to compensate and paying the aforementioned costs as stipulated.

PART 3

CUSTOMS CONTROL OF FAKE GOODS AND GOODS RELATED TO INTELLECTUAL PROPERTY RIGHTS

Article 12. Responsibilities of the Customs Control Force

1. The Customs Control Force applies customs control measures as provided for in Decision No. 65/2004/QĐ-TTg dated April 19, 2004, of the Government Prime Minister to conduct investigations, detect, seize, and handle goods infringing intellectual property rights and fake goods in accordance with the law.

Within the scope of its customs operations, the Customs Control Force is responsible for controlling fake goods and goods related to intellectual property rights.

Outside the scope of its customs operations, the Customs Control Force is responsible for coordinating with relevant agencies to implement measures to inspect, seize, and handle such goods in accordance with the law.

2. When performing their duties, the Customs Control Force has the right to request organizations and individuals involved, as well as customs units at all levels, to provide files and documents, cooperate, and facilitate the performance of their assigned functions and tasks.

Article 13. Implementation of Customs Control Operations

1. The Customs Control Force actively collects information as prescribed by law to monitor the situation and identify subjects, methods, and tactics of violations related to fake goods and goods infringing intellectual property rights.

2. Upon receiving or discovering information about fake goods or goods infringing intellectual property rights, they directly inspect or coordinate with the Customs Sub-Department to process inspections. They compare the discovered goods with relevant legal provisions and actual conditions to issue a decision to temporarily detain the goods.

3. Conducting the collection, verification of evidence, inspection, comparison, and evaluation of information provided regarding fake goods and goods infringing intellectual property rights with the actual detained or suspended goods to determine the infringing goods.

4. In cases where there is a basis to determine the goods as infringing, they apply preventive measures as prescribed by the law on administrative violations and proceed with subsequent steps as stipulated in Chapter IV of this Circular. If there is no basis to determine the goods as infringing, they transfer the file to the Customs Sub-Department to continue processing clearance for the consignment.

Chapter III

ACCEPTANCE AND RESOLUTION OF APPLICATIONS REQUESTING CONTROL OF EXPORTED AND IMPORTED GOODS RELATED TO INTELLECTUAL PROPERTY RIGHTS

Article 14. Provisions on the application form

1. The applicant shall submit to the customs authority one original application form (according to Form 01-SHTT, Form 02-SHTT issued together with this Circular) when requesting inspection, supervision, or temporary suspension of customs procedures.

2. Authority to accept applications.

a) The General Department of Customs (Anti-Smuggling Investigation Department) shall accept applications for inspection and supervision of exported and imported goods related to intellectual property rights.

b) The General Department of Customs (Anti-Smuggling Investigation Department), provincial and city Customs Departments, and Customs Sub-departments shall accept applications for temporary suspension of customs procedures.

3. Validity period of the application.

a) An application for inspection and supervision of exported and imported goods related to intellectual property rights shall be valid for a period of one year from the date the customs authority notifies acceptance of the application and may be extended for an additional one year upon request of the applicant.

b) Within ten days from the date of receipt of the document regarding the extension request of the application validity period for inspection and supervision of exported and imported goods related to intellectual property rights, the General Department of Customs (Anti-Smuggling Investigation Department) shall notify the applicant and relevant customs units about the processing result.

4. The applicant shall be responsible for notifying the customs authority of any changes in the content of the request (including narrowing or expanding the scope of intellectual property rights, narrowing or expanding the list of goods subject to inspection and supervision) during the validity period of the application.

Article 15. Documents accompanying the Application

1. The applicant shall be responsible for submitting to the customs authority certified true copies of the following documents, one copy of each type of document. In case of doubt about the documents submitted by the applicant, the customs authority must compare them with the originals to ensure accuracy.

a) Evidence proving the subject of the right as stipulated in Article 24 of Decree No. 119/2010/ND-CP dated December 30, 2010 of the Government.

b) Documents related to goods subject to customs inspection and supervision, including: List of legitimate exporters and importers of goods; Methods of exporting and importing genuine goods; Genuine-fake goods differentiation document; Documents on the origin of genuine goods, images of genuine goods.

c) Power of attorney or authorization contract for filing the application (in cases where the application is filed by an authorized representative). Foreign powers of attorney must be legalized according to regulations.

d) Information predicting the time and place of export and import procedures (if applicable).

e) Intellectual property appraisal organization's inspection results (if applicable).

g) Conclusions of other enforcement agencies' handling of similar violations that have been detected and resolved (if applicable).

h) Payment receipts or bank or financial institution guarantee documents ensuring the performance of related obligations in cases of temporary suspension of customs procedures as stipulated in Clause 2, Article 217 of the Intellectual Property Law.

2. If the documents specified in Clause 1 of this Article have already been submitted to the customs authority in the Application for Inspection and Supervision of Goods Related to Intellectual Property Rights, then when submitting the Application for Temporary Suspension of Customs Procedures, the applicant does not need to resubmit them.

3. The applicant may submit to the customs authority the documents prescribed in Articles 14 and 15 of this Circular in the form of written documents and electronic files, floppy disks.

Article 16. Inspection and handling of applications

1. Content of application inspection.

a) The application request and related documents are complete as prescribed in Clause 1, Article 14 and Clause 1, Article 15 of the Circular.

b) The authority of the customs agency to accept the application.

c) The eligibility of the applicant as provided for by law.

d) The validity period of intellectual property protection certificates.

e) Documentation, specimens, exhibits (or photographs) consistent with the content of the intellectual property rights being requested for protection or the content of the complaint regarding the violation.

g) The content of the power of attorney is appropriate to the functions of the customs agency and the applicant (in cases where the application is submitted through a power of attorney).

2. Time limit for handling applications.

Within the latest 20 (twenty) days from the date of receipt of the Application requesting inspection and supervision of export and import goods, and within the latest 16 (sixteen) working hours from the time of receipt of the Application requesting suspension of customs procedures, the customs agency receiving the application shall notify the applicant in writing about acceptance or non-acceptance of the application. For Applications requesting suspension of customs procedures, the Customs Sub-Department shall issue a decision suspending customs procedures instead of notifying acceptance of the application.

3. Refusal to Accept Applications.

The customs agency will refuse to accept applications in the following cases.

a) The application is sent to the wrong agency authorized to accept it.

b) There is evidence that the applicant does not have the qualifications to submit the application as required by law.

c) The application has deficiencies and despite being asked to correct them, the applicant has not corrected them or the corrections do not meet the requirements.

d) During the processing of the application, the customs agency receives a notification from the State management agency on intellectual property regarding disputes, complaints about the subject of rights, the possibility of protection, the scope of intellectual property rights protection.

4. Implementation of Applications Requesting Inspection and Supervision of Export and Import Goods.

a) The General Department of Customs (Anti-Smuggling Investigation Department) transfers the Application and the acceptance notification to the Provincial/City Customs Departments and the Control Teams under the Anti-Smuggling Investigation Department.

b) The Provincial/City Customs Department accepts the notification and Application from the General Department of Customs and forwards them to the Customs Sub-Department, relevant functional departments, and the Customs Control Team under the Department.

c) The Customs Sub-Department accepts the notification and Application from the Provincial/City Customs Department and forwards them to relevant Teams, Task Forces, and individuals.

5. Implementation of Applications Requesting Suspension of Customs Procedures.

a) Depending on the nature and severity of the case and the level of violation, the receiving agency will directly send the Application to the Customs Sub-Department handling the customs procedures for the suspected infringing consignment or anti-smuggling control forces when the receiving agency is the General Department of Customs /Provincial/City Customs Department.

b) The leader of the Customs Sub-Department is responsible for organizing and implementing the Application to relevant Teams, Task Forces, and individuals when the Customs Sub-Department receives the Application.

Article 17. Termination of Effectiveness of Application Requests

The General Department of Customs (Anti-Smuggling Investigation Department) is responsible for notifying relevant customs units about the cancellation of Applications requesting inspection and supervision of export and import goods related to intellectual property in the following cases.

a) The applicant submits a written request to terminate the inspection and supervision by the customs agency of goods for which protection is sought.

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

c) The State management agency on intellectual property notifies the cancellation of the intellectual property protection certificate issued to the applicant of the Application request.

Chapter IV

VIOLATION HANDLING

Article 18. Determination of the value of infringing goods

1. The value of goods infringing intellectual property rights or counterfeit goods in customs matters shall be determined based on the declared value of the goods owner on the customs declaration, including all types of taxes (if applicable). The value of the goods and the basis for valuation must be clearly recorded in the administrative violation record and kept in the case file.

If there is evidence to confirm that the declared value of the goods by the goods owner on the customs declaration is inaccurate, the customs authority shall determine the value according to the current regulations on determining the customs value at the time the administrative violation record is established.

2. In cases where the value of goods infringing industrial property rights cannot be determined, the customs authority shall apply the provisions of Clause 13, Article 10, Clause 12, Article 11, Clause 11, Article 12, and Clause 8, Article 14 of Decree No. 97/2010/ND-CP dated September 21, 2010 to impose fines on organizations and individuals who have committed violations.

3. In cases where the value of counterfeit goods is determined based on other grounds, it shall be carried out in accordance with the guidance provided in Clause 2, Article 63 of Decree No. 06/2008/ND-CP dated January 16, 2008 of the Government.

Article 19. Handling acts of infringing intellectual property rights

1. The handling of acts of infringing intellectual property rights and goods infringing intellectual property rights shall be carried out in accordance with the guidance provided in Decree No. 97/2010/ND-CP dated September 21, 2010, Decree No. 47/2009/ND-CP dated May 13, 2009, Decree No. 54/2005/ND-CP dated April 27, 2005, and related legal documents.

2. Within ten working days from the date the penalty decision takes effect, the customs authority shall be responsible for:

a) Notifying in writing the violator to pay all costs incurred due to the administrative violation.

b) Refunding to the person requesting the temporary suspension of customs procedures the amount of guarantee already paid.

Article 20. Handling acts of violating counterfeit goods(excluding counterfeit goods related to intellectual property)

The handling of violations shall be carried out in accordance with the guidance provided in Decree No. 06/2008/ND-CP dated January 16, 2008, Decree No. 112/2010/ND-CP dated December 1, 2010 of the Government, and related implementing guidelines.

Chapter V

IMPLEMENTATION

Article 21. Responsibilities for Implementation

1. The General Department of Customs is responsible for guiding and directing subordinate units to implement the specific provisions of this Circular.

2. The customs authority, declarant, applicant for export/import goods inspection related to intellectual property, complainant about violations, and relevant organizations and individuals shall fulfill their responsibilities in accordance with current regulations and the guidance provided in this Circular.

Article 22. Rewards and penalties for violations

1. Customs authorities and customs officers who achieve outstanding results in combating counterfeit goods and protecting intellectual property rights shall be considered for rewards in accordance with current regulations.

2. Customs authorities and customs officers who lack a sense of responsibility, causing damage to the applicant, the owner of goods whose intellectual property rights have been infringed upon or goods that have been counterfeited, or the person handling customs procedures, shall be subject to disciplinary action or criminal liability追究责任，具体取决于违规的性质和程度。

Article 23. Effectiveness of Implementation

1. This Circular shall take effect from May 19, 2011, replacing previous guiding documents that conflict with the provisions of this Circular.

2. During implementation, if any difficulties arise, they should be reported promptly to the Ministry of Finance for study and resolution./.