Decree No. 97/2010/ND-CP on Administrative Sanctions for Violations in the Field of Intellectual Property

DECREE

Administrative Sanctions for Violations in the Field of Industrial Property

_______________________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Intellectual Property Law dated November 29, 2005; the Law Amending and Supplementing Certain Provisions of the Intellectual Property Law dated June 19, 2009 (hereinafter referred to collectively as the Intellectual Property Law);

Based on the Competition Law dated December 3, 2004;

Pursuant to the Law on Information Technology dated June 29, 2006;

Based on the Administrative Violation Handling Ordinance dated July 2, 2002; and the Ordinance amending and supplementing certain articles of the Administrative Violation Handling Ordinance dated April 2, 2008 (hereinafter referred to collectively as the Administrative Violation Handling Ordinance);

Considering the proposal of the Minister of Science and Technology,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of application

This Decree stipulates acts of violation, forms of punishment, fines, measures to remedy consequences; procedures for submitting applications to handle violations; authority and procedures for handling applications to deal with violations; authority and procedures for imposing administrative sanctions and enforcing decisions on administrative sanctions in the field of industrial property.

Article 2. Applicability

Vietnamese organizations and individuals; foreign organizations and individuals who commit violations of state management regulations on industrial property, infringe upon industrial property rights, or engage in unfair competition regarding industrial property occurring in Vietnam; other organizations and individuals related during the process of handling administrative violations in the field of industrial property;

Article 3. Forms of Punishment and Measures to Remedy Consequences

1. Each act of administrative violation shall only be subject to one main form of punishment, which is either a warning or a fine:

a) A warning shall be imposed on acts of violation falling under the provisions of Article 13 of the Administrative Violation Handling Ordinance and corresponding provisions of this Decree that allow the application of a warning as a form of punishment for such acts of violation;

b) A fine shall be imposed according to the fine range prescribed for each act of administrative violation as stipulated in the corresponding provisions of this Decree, with the maximum fine being 500,000,000 VND.

2. Depending on the nature and degree of violation, organizations and individuals committing violations may also be subject to one or more of the following supplementary forms of penalty:

a) Confiscation of evidence and means of administrative violation, including counterfeit goods bearing trademarks or geographical indications; raw materials, materials, and means primarily used to produce or trade counterfeit goods bearing trademarks or geographical indications; labels, packaging, and other items containing elements of violation; business means, including service and advertising means containing elements of violation; certificates of protection, certificates of recognition, or other documents that have been altered, erased, or falsified;

b) Suspension of the right to use professional representation services in industrial property certification certificates; identification cards; certificates of qualification for inspection organizations;

c) Suspension of production and business activities involving goods and services in violation for a specified period.

3. In addition to the main forms of punishment and supplementary forms of punishment, the violating organization or individual may also be compelled to apply one or more remedial measures as follows:

a) Compel the removal of elements of violation from goods and business means; compel the removal of information and guidance about goods and services in violation from business means, including advertising and electronic media, or change and recall domain names, company names containing elements of violation;

b) Compel the distribution or use not for commercial purposes of counterfeit goods bearing trademarks or geographical indications, or goods infringing industrial property rights; raw materials, materials, and means primarily used to produce or trade counterfeit goods bearing trademarks or geographical indications, or goods infringing industrial property rights, provided that it does not affect the exploitation of the rights of the right holders;

c) Compel the removal of goods infringing industrial property rights from Vietnamese territory or re-export counterfeit goods bearing trademarks or geographical indications, means, raw materials, and materials imported primarily for the production or trading of counterfeit goods bearing trademarks or geographical indications after removing elements of violation from the goods;

d) Compel the destruction of elements of violation, goods, evidence, and means of violation that cannot remove elements of violation or goods in violation harmful to human health, animals, plants, and the environment; labels, packaging, and other items containing elements of violation;

đ) Compel amendment and supplementation of industrial property guidance;

e) Compel public correction for acts of misleading regarding industrial property rights;

g) Compel recovery of contraband goods and means that have been dispersed;

h) Recover illegal profits obtained from the implementation of acts of administrative violation into the state budget.

4. Aggravating and mitigating circumstances stipulated in Articles 8 and 9 of the Administrative Violation Handling Ordinance and the following mitigating circumstances:

a) First-time violation on a small scale;

b) Violation due to lack of knowledge and no basis to know about the status of protected industrial property rights.

5. The statute of limitations for administrative sanctions in the field of industrial property as stipulated in Article 10 of the Administrative Violation Handling Ordinance.

Article 4. Determination of the Value of Goods and Services in Violation

1. The valuation of goods as evidence and means of violation to serve as the basis for determining the fine range and the authority to impose sanctions shall be determined by the authorized person based on the grounds and principles stipulated in Article 34 of Government Decree No. 128/2008/NĐ-CP dated December 16, 2008, detailing the implementation of certain articles of the Administrative Violation Handling Ordinance.

2. In cases where the grounds stipulated in Clause 1 of this Article cannot be applied to value goods and services in violation to serve as the basis for determining the fine range or to determine the amount of illegal profits obtained from the implementation of acts of violation, the authorized person imposing the fine shall determine the value of goods and services in violation based on the quantity of goods and volume of services in violation produced, sold, transported, or provided recorded on payment invoices, contracts, orders, delivery receipts, warehouse exit slips, warehouse entry slips, purchase receipts, sales receipts, import declarations, and declarations to competent authorities, and the price of goods and services in violation recorded on corresponding documents. If the corresponding documents do not record the price, they shall rely on other documents recording the price of goods and services in violation, including quotation letters, product introduction documents, and advertisements for goods and services in violation.

3. The value of discovered goods and services in violation and the documents and grounds for determining the value of goods and services in violation must be clearly recorded in the administrative violation report and kept in the case file.

4. In cases where the value of goods and services in violation cannot be determined according to Clauses 1 and 2 of this Article, the imposition of fines shall follow the provisions of Clause 13 of Article 10, Clause 12 of Article 11, Clause 11 of Article 12, and Clause 8 of Article 14 of this Decree.

Chapter II

ADMINISTRATIVE PENALTY VIOLATIONS

PART I

VIOLATIONS OF PROVISIONS ON THE MANAGEMENT OF INDUSTRIAL PROPERTY ACTIVITIES

Article 5. Violations of Provisions on Procedures for Establishing, Implementing, and Protecting Industrial Property Rights

1. A fine of between 5,000,000 VND and 10,000,000 VND shall be imposed on organizations and individuals committing one of the following acts:

a) Repairing, erasing industrial property protection documents or evidence proving industrial property rights;

b) Exploiting procedures for establishing, exercising, and protecting industrial property rights to commit acts infringing upon the interests of the State, public interest, and legitimate rights and interests of other organizations and individuals;

2. A fine of from VND 10,000,000 to VND 15,000,000 shall be imposed on organizations and individuals providing false information or evidence during the implementation of any of the following procedures:

a) Conducting procedures to establish, recognize, certify, amend, maintain, extend, request termination, or revoke the validity of certificates of protection of industrial property rights;

b) Requesting competent state agencies to issue a decision to compulsorily transfer the right to use an invention patent;

c) Filing complaints or denunciations in the procedures for establishing, exercising, and protecting industrial property rights;

d) Requesting cessation of infringement, requesting handling of infringing acts, requesting industrial property appraisal, implementing requests of competent authorities in resolving disputes and handling violations related to industrial property rights;

3. A fine of from VND 15,000,000 to VND 20,000,000 shall be imposed on organizations and individuals forging documents in cases stipulated in Clause 2 of this Article;

4. Additional sanctions: confiscation of documents, materials, industrial property protection certificates, and evidence proving industrial property rights that have been repaired, erased, or forged as specified in Point a Clause 1, Clause 2, and Clause 3 of this Article;

Article 6. Violations of Provisions on Indications for Protecting Industrial Property Rights

1. A warning or a fine of from VND 3,000,000 to VND 5,000,000 shall be imposed on organizations and individuals committing any of the following acts:

a) False indications regarding the subject matter, elements protected by industrial property rights, the right holders, the authors of inventions, designs, and layout-designs;

b) False indications regarding the legal status and scope of protection of industrial property rights;

c) Misleading or failing to indicate the license reference regarding goods produced under a contract using an industrial property object (license reference);

2. Measures to remedy consequences:

a) Compelling removal of infringing elements from goods or business means for acts stipulated in Clause 1 of this Article;

b) Compelling public correction for acts violating provisions specified in Points a and b Clause 1 of this Article;

c) Compelling modification or supplementation of references for the act stipulated in Point c Clause 1 of this Article;

Article 7. Violations of Provisions on Representation of Industrial Property Rights

1. A warning or a fine of from VND 2,000,000 to VND 5,000,000 shall be imposed on representatives of industrial property rights committing any of the following acts:

a) Not notifying in writing the competent state agency responsible for establishing and protecting industrial property rights of changes in the name, address, legal status of the representative of industrial property rights, or changes related to the principal and the agent authorized to represent industrial property rights;

b) Not reporting or reporting inaccurately service fees and charges for representing industrial property rights as required by the competent authority;

2. A fine of from VND 5,000,000 to VND 10,000,000 shall be imposed on representatives of industrial property rights committing any of the following acts:

a) Simultaneously representing both parties in disputes over industrial property rights;

b) Unilaterally withdrawing applications for issuance of protection certificates, declaring abandonment of protection, withdrawing complaints, or performing other acts in establishing industrial property rights without authorization from the principal;

c) Not informing the principal authorized to represent industrial property rights about the content of requests from competent state agencies responsible for establishing, resolving disputes, and handling violations related to industrial property rights;

d) Not promptly delivering protection certificates, evidence proving industrial property rights, certificates, and other decisions to the principal authorized to represent industrial property rights without justifiable reasons;

đ) Not providing relevant organizations or individuals with the content of requests from competent state agencies;

e) Not performing and not responding to the content of requests from competent state agencies regarding establishment, dispute resolution, and handling of violations related to industrial property rights without justifiable reasons;

g) Repairing or altering the content of the professional practice certificate for representing industrial property rights;

h) Intentionally advising or reporting inaccurately about legal regulations on industrial property rights or industrial property activities;

i) Intentionally obstructing the normal process of establishing, exercising, and protecting industrial property rights causing damage to those entitled to such rights and interests;

3. A fine of from VND 10,000,000 to VND 15,000,000 shall be imposed on organizations and individuals committing any of the following acts:

a) Operating representation services of industrial property rights without meeting the conditions for practice as prescribed by law;

b) Forging documents, materials, or providing inaccurate information to competent state agencies during the registration process for professional practice examination for representing industrial property rights, requesting issuance of a professional practice certificate for representing industrial property rights, or requesting recognition of an organization providing representation services for industrial property rights;

4. A fine of from VND 15,000,000 to VND 20,000,000 shall be imposed on representatives of industrial property rights committing any of the following acts:

a) Disclosing information not permitted to be published by competent state management agencies related to the process of receiving, examining, and handling various types of registration applications, complaints, and requests for handling violations related to industrial property rights;

b) Seriously violating regulations while practicing representation, causing damage to the interests of the State or society;

5. Additional forms of punishment:

a) Suspension of business operations of the violating service for the violation stipulated in Point a Clause 3 of this Article;

b) Revocation of the right to use the professional practice certificate for representing industrial property rights for three to six months for violations stipulated in Clause 2 of this Article;

c) Revocation of the right to use the professional practice certificate for representing industrial property rights indefinitely for violations stipulated in Clause 4 of this Article;

Article 8. Violations concerning industrial property appraisal

1. A warning or a fine of from VND 2,000,000 to VND 5,000,000 shall be imposed on organizations and individuals with functions of appraising industrial property rights committing any of the following acts:

a) Violating the prescribed procedures and formalities for appraisal and the time limit for appraisal;

b) Not appearing according to the summons of the requesting agency without justifiable reasons, not explaining the appraisal conclusion when requested by the requesting agency;

c) Repairing or altering the content of the appraiser card or the certificate of an organization meeting the conditions for conducting industrial property appraisal activities;

2. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed on organizations and individuals committing any of the following acts:

a) Conducting appraisal activities for industrial property without meeting the prescribed conditions for practicing;

b) Disclosing confidential information obtained during the appraisal process without permission from the relevant parties;

c) Not preparing an appraisal file, not preserving objects and documents related to the appraisal case;

d) Using another person's industrial property appraiser card or allowing another person to use one's own industrial property appraiser card to conduct appraisal activities.

3. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed on organizations and individuals committing any of the following acts:

a) Exploiting the status of an appraiser and appraisal activities for personal gain;

b) Intentionally issuing a false appraisal conclusion;

c) Arbitrarily altering, erasing, or engaging in other acts that distort the appraisal document;

d) Falsifying or using falsified documents or providing inaccurate information to competent state agencies during the registration process for professional practice examination for industrial property appraisal, requesting issuance of an industrial property appraiser card, or requesting recognition of an industrial property appraisal organization;

đ) Deliberately conducting an appraisal in situations where they must refuse to conduct an appraisal according to the law;

4. Additional forms of punishment and measures to remedy consequences:

a) Suspension of business operations of the violating service for the violation stipulated in Point a Clause 2 of this Article;

b) Revoke the right to use the forensic examiner card; the certificate confirming the organization's qualification for intellectual property appraisal activities for three to six months for the acts specified in points a and c, Clause 1, Article this;

c) Confiscate documents for repair, alteration, or forgery of content for the acts specified in point c, Clause 1, and point d, Clause 3, Article this;

d) Recover illegal proceeds in monetary form to the state budget for the acts specified in point a, Clause 3, Article this.

Article 9. Violations concerning inspection and supervision of intellectual property

1. Warning or a fine from VND 1,000,000 to VND 3,000,000 for organizations and individuals committing one of the following acts:

a) Refusing to accept decisions on inspection, supervision, administrative penalty decisions without legitimate reasons;

b) Failing to provide, providing insufficiently, or providing false information necessary for the conduct of inspection, supervision, and handling of violations as required by authorized persons.

2. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed on organizations and individuals committing any of the following acts:

a) Failing to comply with requests, conclusions, and decisions of the Inspection and Supervision Team regarding intellectual property without legitimate reasons;

b) Obstructing, creating difficulties, or evading inspections and supervisions conducted by authorized persons for intellectual property.

3. A fine of from VND 10,000,000 to VND 15,000,000 shall be imposed on organizations and individuals committing any of the following acts:

a) Insulting, defaming, or humiliating authorized persons conducting inspections and supervisions on intellectual property;

b) Intentionally delaying, evading, or failing to execute administrative decisions of authorized persons conducting inspections and supervisions and handling administrative violations in the field of intellectual property.

4. A fine from VND 15,000,000 to VND 20,000,000 for organizations and individuals committing one of the following acts:

a) Removing seals, dismantling, or altering the scene, changing the quantity or type of goods that are evidence of intellectual property violations being inspected, supervised, sealed, or temporarily detained without authorization;

b) Disposing of or destroying evidence or means of transportation currently under inspection or supervision.

5. Remedial measures: Compel recovery of disposed-of evidence or means of transportation for the act specified in point b, Clause 4, Article this.

Section 2

INFRINGEMENT OF RIGHTS AND UNFAIR COMPETITION IN THE FIELD OF INTELLECTUAL PROPERTY

Article 10. Infringement of rights to inventions, utility models, and layout-designs

1. Warning or a fine from VND 2,000,000 to VND 4,000,000 for organizations and individuals committing one of the following acts for business purposes when the value of infringing goods does not exceed VND 5,000,000:

a) Selling; offering for sale; transporting, including transiting; storing; displaying for sale products infringing patents, utility models, industrial designs, or products produced using processes infringing patents or utility models;

b) Exploiting the utility of products infringing the rights to inventions, utility models or products produced using processes infringing the rights to inventions, utility models;

c) Ordering, assigning work, or hiring others to perform acts specified in points a and b of this clause.

2. A fine from VND 4,000,000 to VND 8,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 5,000,000 to VND 10,000,000.

3. A fine from VND 8,000,000 to VND 15,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 10,000,000 to VND 20,000,000.

4. A fine from VND 15,000,000 to VND 30,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 20,000,000 to VND 40,000,000.

5. A fine from VND 30,000,000 to VND 50,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 40,000,000 to VND 70,000,000.

6. A fine from VND 50,000,000 to VND 80,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 70,000,000 to VND 100,000,000.

7. A fine from VND 80,000,000 to VND 160,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 100,000,000 to VND 200,000,000.

8. A fine from VND 160,000,000 to VND 240,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 200,000,000 to VND 300,000,000.

9. A fine from VND 240,000,000 to VND 320,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 300,000,000 to VND 400,000,000.

10. A fine from VND 320,000,000 to VND 400,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods ranges from over VND 400,000,000 to VND 500,000,000.

11. A fine from VND 400,000,000 to VND 500,000,000 for organizations and individuals committing one of the acts violating the provisions of Clause 1, Article this when the value of infringing goods exceeds VND 500,000,000.

12. A fine at 1.2 times the amount specified in Clauses 1 to 11, Article this but not exceeding VND 500,000,000 for organizations and individuals committing one of the following acts for business purposes:

a) Manufacturing including: designing, constructing, manufacturing, processing, assembling, producing, packaging products or goods infringing patents, utility models, industrial designs;

b) Using a process infringing the rights to inventions, utility models;

c) Importing products infringing the rights to inventions, utility models, and layout-designs or products produced using processes infringing the rights to inventions, utility models;

d) Ordering, assigning work, or hiring others to perform acts specified in points a, b, and c of this clause.

13. A fine from VND 10,000,000 to VND 90,000,000 for organizations and individuals committing acts infringing patents, utility models, or industrial designs as specified in Clauses 1 and 12, Article this when the value of infringing goods cannot be determined.

14. A fine from VND 10,000,000 to VND 20,000,000 for organizations and individuals advertising products infringing patents, utility models, or industrial designs or products produced using processes infringing patents or utility models.

15. Additional forms of punishment:

a) Confiscate infringing objects and means of administrative violation for acts prescribed from Clause 1 to Clause 14 of this Article;

b) Suspend production and business activities involving infringing goods for up to three months for acts prescribed from Clause 1 to Clause 14 of this Article.

16. Measures to remedy consequences:

a) Compel removal of the infringing element, compel destruction of the infringing element, compel destruction of infringing goods that cannot remove the infringing element for acts prescribed from Clause 1 to Clause 14 of this Article;

b) Compel distribution or use without commercial purpose for infringing goods for acts prescribed from Clause 1 to Clause 13 of this Article;

c) Compel export out of the territory of Vietnam for transit goods infringing or compel re-export for imported infringing goods after removing the infringing element on the goods for acts prescribed from Clause 1 to Clause 13 of this Article;

d) Recover to the State budget the amount of illegal profit obtained from committing the infringing act for acts prescribed from Clause 1 to Clause 14 of this Article.

Article 11. Infringement of rights to trademarks, geographical indications, trade names, and industrial designs

1. Warning or fine from VND 3,000,000 to VND 5,000,000 for organizations and individuals implementing one of the following acts for business purposes when the value of infringing goods or services does not exceed VND 5,000,000.

a) Selling; offering for sale; transporting, including transiting; storing; displaying for sale goods or services infringing the rights to trademarks, trade names, geographical indications, or industrial designs;

b) Entrusting others to perform the act prescribed in point a of this clause.

2. Fine from VND 5,000,000 to VND 10,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services ranges from VND 5,000,000 to VND 10,000,000.

3. Fine from VND 10,000,000 to VND 20,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services ranges from over VND 10,000,000 to VND 20,000,000.

4. Fine from VND 20,000,000 to VND 40,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services ranges from over VND 20,000,000 to VND 40,000,000.

5. Fine from VND 40,000,000 to VND 70,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services ranges from over VND 40,000,000 to VND 70,000,000.

6. Fine from VND 70,000,000 to VND 100,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services ranges from over VND 70,000,000 to VND 100,000,000.

7. Fine from VND 100,000,000 to VND 200,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services ranges from over VND 100,000,000 to VND 200,000,000.

8. Fine from VND 200,000,000 to VND 300,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services ranges from over VND 200,000,000 to VND 300,000,000.

9. Fine from VND 300,000,000 to VND 400,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services exceeds VND 300,000,000 but does not exceed VND 400,000,000.

10. Fine from VND 400,000,000 to VND 500,000,000 for organizations and individuals implementing one of the acts violating the provisions of Clause 1 of this Article when the value of infringing goods or services exceeds VND 400,000,000.

11. Fine at 1.2 times the amount of the fine prescribed from Clause 1 to Clause 10 of this Article but not exceeding VND 500,000,000 for organizations and individuals implementing one of the following acts:

a) Production including: design, manufacture, processing, assembly, processing, packaging goods bearing signs indicating infringement of trademarks, trade names, geographical indications, industrial designs;

b) Attachment including: printing, sticking, attaching, casting, stamping or other forms of affixing labels, marks, items bearing signs indicating infringement of trademarks, geographical indications, trade names onto goods;

c) Importing goods bearing signs that infringe the rights to trademarks, geographical indications, trade names, or industrial designs;

d) Ordering, assigning work, or hiring others to perform acts specified in points a, b, and c of this clause.

12. Fine from VND 10,000,000 to VND 90,000,000 for acts infringing rights to trademarks, geographical indications, trade names, industrial designs prescribed in Clause 1 and Clause 11 of this Article when the value of infringing goods or services cannot be determined.

13. Fine from VND 10,000,000 to VND 20,000,000 for acts using signs indicating infringement of trademarks, geographical indications, trade names, industrial designs in advertising or displaying such signs on transaction documents, business signs, product packaging, business means, service means, advertising means.

14. Additional forms of punishment:

a) Confiscate infringing objects and means of violation for acts prescribed from Clause 1 to Clause 13 of this Article;

b) Suspend business activities involving infringing goods and services, including e-commerce activities for up to three months for acts prescribed from Clause 1 to Clause 13 of this Article.

15. Measures to remedy consequences:

a) Compel removal of the infringing element; compel destruction of the infringing element, compel destruction of infringing goods that cannot remove the infringing element for acts prescribed from Clause 1 to Clause 13 of this Article;

b) Compel distribution or use without commercial purpose for infringing goods for acts prescribed from Clause 1 to Clause 12 of this Article;

c) Compel export out of the territory of Vietnam for transit goods infringing or compel re-export for imported infringing goods after removing the infringing element on the goods for acts prescribed from Clause 1 to Clause 12 of this Article;

d) Compel removal of information about infringing goods and services on advertising media, websites or change, recall business names, domain names containing infringing elements for acts prescribed in Clause 13 of this Article;

đ) Recover to the State budget the amount of illegal profit obtained from committing the infringing act for acts prescribed from Clause 1 to Clause 13 of this Article.

Article 12. Production, importation, sale, transportation, storage for sale of goods bearing counterfeit trademarks or geographical indications

1. A warning or a fine from VND 4,000,000 to VND 8,000,000 shall be imposed on organizations and individuals who commit any of the following acts where the value of the infringing goods does not exceed VND 5,000,000:

a) Selling; offering for sale; transporting, including transit; storing; displaying for sale goods bearing counterfeit trademarks or geographical indications;

b) Entrusting others to perform the act prescribed in point a of this clause.

2. A fine from VND 8,000,000 to VND 15,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods ranges from over VND 5,000,000 to VND 10,000,000.

3. A fine from VND 15,000,000 to VND 30,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods ranges from over VND 10,000,000 to VND 20,000,000.

4. A fine from VND 30,000,000 to VND 60,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods ranges from over VND 20,000,000 to VND 40,000,000.

5. A fine from VND 60,000,000 to VND 100,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods ranges from over VND 40,000,000 to VND 70,000,000.

6. A fine from VND 100,000,000 to VND 150,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods ranges from over VND 70,000,000 to VND 100,000,000.

7. A fine from VND 150,000,000 to VND 300,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods ranges from over VND 100,000,000 to VND 200,000,000.

8. A fine from VND 300,000,000 to VND 450,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods exceeds VND 200,000,000 but does not exceed VND 300,000,000.

9. A fine from VND 450,000,000 to VND 500,000,000 shall be imposed on organizations and individuals who commit any of the acts prohibited under Clause 1 of this Article where the value of the infringing goods exceeds VND 300,000,000.

10. A fine from 1.5 times the amount specified in Clauses 1 through 9 of this Article but not exceeding VND 500,000,000 shall be imposed on organizations and individuals who commit any of the following acts:

a) Production including: manufacturing, processing, assembling, processing, packaging goods bearing counterfeit trademarks or geographical indications;

b) Attachment including: printing, affixing, attaching, casting, stamping or using other methods to attach counterfeit trademark or geographical indication labels, items onto goods;

c) Importing goods bearing counterfeit trademarks or geographical indications;

d) Ordering, assigning work, or hiring others to perform acts specified in points a, b, and c of this clause.

11. A fine from VND 10,000,000 to VND 90,000,000 shall be imposed on the acts specified in Clauses 1 and 10 of this Article where the value of the infringing goods cannot be determined.

12. A fine from VND 20,000,000 to VND 40,000,000 shall be imposed on the act of using counterfeit trademarks or geographical indications of others that are protected in advertisements or displaying such signs on business transaction documents, shop signs, product packaging, business means, service means, advertising means.

13. Additional forms of punishment:

a) Confiscation of infringing objects and means for the acts specified in Clauses 1 through 12 of this Article;

b) Suspension of business activities involving infringing goods and services, including e-commerce activities for up to six months for the acts specified in Clauses 1 through 12 of this Article.

14. Measures to remedy consequences:

a) Compel removal of infringing elements; compel destruction of infringing elements; compel destruction of infringing goods that cannot have infringing elements removed for the acts prohibited in Clauses 1 through 12 of this Article;

b) Compel distribution or use of infringing goods for non-commercial purposes for the acts prohibited in Clauses 1 through 11 of this Article;

c) Compel removal of goods transiting with infringement or compel re-export of counterfeit trademark or geographical indication goods, raw materials, materials, means imported primarily for the production of counterfeit trademark or geographical indication goods after removing infringing elements for the acts prohibited in Clauses 1 through 11 of this Article;

d) Compel removal of information about infringing goods and services from advertising media, electronic news pages; compel change or recall of company names, domain names containing infringing elements for the act specified in Clause 12 of this Article;

đ) Recover illegal profits obtained from committing the infringing acts to the state budget for the acts prohibited in Clauses 1 through 12 of this Article.

Article 13. Production, importation, sale, transportation, storage for sale of counterfeit labels, trademarks, products bearing trademarks, geographical indications

1. A fine from VND 10,000,000 to VND 50,000,000 shall be imposed on organizations and individuals who commit any of the following acts:

a) Sale; transportation, including transit; supply; storage; display for sale of counterfeit labels, packaging, products bearing trademarks, geographical indications;

b) Entrusting others to perform the act prescribed in point a of this clause.

2. A fine from VND 20,000,000 to VND 70,000,000 shall be imposed on organizations and individuals who commit any of the following acts:

a) Production including design, printing; importation of counterfeit labels, packaging, other products bearing trademarks, geographical indications;

b) Entrusting others to perform the act prescribed in point a of this clause.

3. Additional forms of punishment:

a) Confiscation of infringing objects and means for the acts specified in Clauses 1 and 2 of this Article;

b) Suspension of business activities involving infringing goods and services for up to six months for the acts specified in Clauses 1 and 2 of this Article.

4. Measures to remedy consequences:

a) Compel removal of infringing elements; compel destruction of counterfeit trademark or geographical indication labels, items for the acts prohibited in Clauses 1 and 2 of this Article;

b) Recover illegal profits obtained from committing the infringing acts to the state budget for the acts specified in Clauses 1 and 2 of this Article;

Article 14. Unfair competition in the field of industrial property

1. A fine from VND 2,000,000 to VND 4,000,000 shall be imposed on organizations and individuals who commit any of the following acts where the value of the infringing goods or services does not exceed VND 5,000,000:

a) Selling; transporting, including transit; storing for sale goods and services bearing trademarks including: trademarks, trade names, business symbols, business slogans, geographical indications, product packaging designs that cause confusion about the business subject, business activities, commercial origin of goods and services or place of origin, method of production, features, quality, quantity or other characteristics of goods and services or conditions for providing goods and services;

b) Entrusting others to perform the act prescribed in point a of this clause.

2. A fine of from VND 4,000,000 to VND 8,000,000 shall be imposed on organizations and individuals who commit any of the violations stipulated in Clause 1 of this Article where the value of the infringing goods and services ranges from VND 5,000,000 to VND 10,000,000.

3. A fine of from VND 8,000,000 to VND 15,000,000 shall be imposed on organizations and individuals who commit any of the violations stipulated in Clause 1 of this Article where the value of the infringing goods and services ranges from VND 10,000,000 to VND 20,000,000.

4. A fine of from VND 15,000,000 to VND 30,000,000 shall be imposed on organizations and individuals who commit any of the violations stipulated in Clause 1 of this Article where the value of the infringing goods and services ranges from VND 20,000,000 to VND 40,000,000.

5. A fine of from VND 30,000,000 to VND 50,000,000 shall be imposed on organizations and individuals who commit any of the violations stipulated in Clause 1 of this Article where the value of the infringing goods and services ranges from VND 40,000,000 to VND 70,000,000.

6. A fine of from VND 50,000,000 to VND 70,000,000 shall be imposed on organizations and individuals who commit any of the violations stipulated in Clause 1 of this Article where the value of the infringing goods and services exceeds VND 70,000,000.

7. A fine of 1.2 times the amount of the fine prescribed in Clauses 1 to 6 of this Article but not exceeding VND 70,000,000 shall be imposed on organizations and individuals who commit any of the following acts:

a) Affixing trademarks including: trademarks, trade names, business symbols, business slogans, geographical indications, product packaging designs on goods causing confusion about the business subject, business activities, commercial origin of goods and services or place of origin, method of production, features, quality, quantity or other characteristics of goods and services or conditions for providing goods and services;

b) Producing, importing goods bearing trademarks causing confusion as prescribed in point a of this clause;

c) Ordering, assigning work, or hiring others to perform acts specified in points a and b of this clause.

8. A fine of from VND 10,000,000 to VND 50,000,000 shall be imposed on the act of using trademarks causing confusion as prescribed in Clause 1 and Clause 7 of this Article where the value of the infringing goods and services cannot be determined.

9. A fine of from VND 10,000,000 to VND 30,000,000 shall be imposed on organizations and individuals who commit any of the following acts:

a) Infringing upon rights to business secrets;

b) Advertising, using on transaction documents, business means, including service means, signs, product packaging trademarks causing confusion about the business subject, business activities, commercial origin of goods and services or place of origin, method of production, features, quality, quantity or other characteristics of goods and services or conditions for providing goods and services.

10. A fine of from VND 5,000,000 to VND 20,000,000 shall be imposed on organizations and individuals who commit any of the following acts:

a) Registering, holding, or using domain names identical or similar causing confusion with trademarks, geographical indications, trade names of others that are protected with the aim of holding domain names, taking advantage of or damaging the reputation of corresponding trademarks, trade names, geographical indications;

b) Using a protected trademark in a country that is a member of an international treaty that prohibits representatives or agents of the trademark owner from using the trademark without the owner's consent and without legitimate reasons, if the user is a representative or agent of the trademark owner and such use is not authorized by the trademark owner and does not have legitimate reasons.

11. Additional forms of punishment:

a) Confiscation of infringing objects and means of infringement for the acts prescribed in Clauses 1 to 10 of this Article;

b) Suspension of business operations involving infringing goods and services, including e-commerce activities for up to six months for the acts prescribed in Clauses 1 to 10 of this Article.

12. Measures to remedy consequences:

a) Compelling removal of infringing elements; compelling destruction of infringing elements; compelling destruction of infringing goods that cannot remove infringing elements for the acts of violation prescribed in Clauses 1 to 10 of this Article;

b) Compelling distribution or use for non-commercial purposes for the acts of violation prescribed in Clauses 1 to 10 of this Article;

c) Compelling removal of information about infringing goods and services from advertising media, electronic news pages; compelling change or recall of enterprise names, domain names containing infringing elements for the acts prescribed in Clause 9 and Clause 10 of this Article;

d) Recovery to the state budget the amount of illegal profits obtained from committing the acts of infringement as prescribed in Clauses 1 to 10 of this Article.

Chapter III

AUTHORITY TO IMPOSE ADMINISTRATIVE PENALTIES

Article 15. Authority to Discipline Violations

1. The Science and Technology Inspectorate has the authority to handle violations stipulated in Chapter II of this Decree, except for violations occurring in transit and import of goods activities.

2. The Information and Communications Inspectorate has the authority to handle violations stipulated in Article 9 and infringements stipulated at point a of Clause 10 of Article 14 of this Decree.

3. The Market Management Authority has the authority to handle violations stipulated in Articles 6, 9 and infringements stipulated in Articles 11, 12, and 13 of this Decree in domestic trading and transportation activities.

4. The Customs Authority has the authority to handle violations stipulated in Articles 6 and 9 and infringements stipulated in Section 2 of Chapter II of this Decree in transit and import of goods activities.

5. The Public Security Authority has the authority to handle violations stipulated in Article 9 and infringements stipulated in Articles 12 and 13 of this Decree.

6. The Competition Administration has the authority to handle violations stipulated in Article 14 of this Decree.

7. The provincial and district People's Committees have the authority to handle violations in the field of industrial property occurring locally according to the principle of determining jurisdiction specified in Article 42 of the Administrative Violation Handling Ordinance.

Article 16. Competence to impose penalties of the Science and Technology Inspectorate

1. Inspectors under the Ministry of Science and Technology Inspectorate and Department of Science and Technology Inspectorate performing their duties have the right:

a) To issue warnings;

b) Confiscate goods and means of administrative violation with a value up to 2,000,000 VND;

c) Apply remedial measures prescribed at points a, d, đ, e, and g Clause 3 Article 3 of this Decree;

2. The Chief Inspector of the Department of Science and Technology has the right:

a) To issue warnings;

b) Impose fines up to thirty million dong;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use the professional practice certificate for industrial property representation services for a period of time;

đ) Suspend business activities involving goods and services in violation for up to three months;

e) Apply remedial measures prescribed at points a, b, d, đ, e, g, and h Clause 3 Article 3 of this Decree;

3. Head of the Ministry of Science and Technology Inspectorate has the right:

a) To issue warnings;

b) To impose a fine up to VND 500,000,000;

c) Suspend the right to use the professional practice certificate for industrial property representation services, inspection certification card, and certificate of organization for industrial property inspection, either for a period of time or indefinitely;

d) Suspend business activities involving goods and services in violation for up to six months;

đ) Confiscate goods and means of administrative violation;

e) Apply remedial measures prescribed at points a, b, d, đ, e, g, and h Clause 3 Article 3 of this Decree;

Article 17. Competence to impose penalties of the Information and Communications Inspectorate

1. Inspectors under the Ministry of Information and Communications Inspectorate and Department of Information and Communications Inspectorate performing their duties have the right:

a) To issue warnings;

b) Confiscate goods and means of administrative violation with a value up to 2,000,000 VND;

c) Apply remedial measures prescribed at point a Clause 3 Article 3 of this Decree;

2. The Director of the Department of Information and Communications Inspectorate has the authority to:

a) To issue warnings;

b) Impose fines up to thirty million dong;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Suspend business activities involving goods and services in violation for up to three months;

e) Apply remedial measures prescribed at point a Clause 3 Article 3 of this Decree;

3. Head of the Ministry of Information and Communications Inspectorate has the right:

a) To issue warnings;

b) To impose fines up to VND 70,000,000;

c) Suspend business activities involving goods and services in violation for up to six months;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Confiscate goods and means of administrative violation;

e) Apply remedial measures prescribed at point a Clause 3 Article 3 of this Decree;

Article 18. Competence to impose administrative penalties of Market Management

1. The Head of the Market Management Team has the authority:

a) To issue warnings;

b) To impose fines up to VND 5,000,000;

c) Confiscate goods and means of administrative violation with a value up to 30,000,000 VND;

d) Apply remedial measures prescribed at points a, d, đ, e, g, and h Clause 3 Article 3 of this Decree;

2. The Deputy Director of the Market Management Branch has the authority to:

a) To issue warnings;

b) To impose fines up to VND 20,000,000;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Apply remedial measures prescribed at points a, b, d, đ, e, g, and h Clause 3 Article 3 of this Decree;

3. The Director of the Market Management Department has the authority:

a) To issue warnings;

b) To impose fines up to VND 70,000,000;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Apply remedial measures prescribed at points a, b, d, đ, e, g, and h Clause 3 Article 3 of this Decree;

Article 19. Competence to impose administrative penalties of Customs

1. The Head of Business Units under the Customs Branch, the Head of Business Units under the Post-Clearance Inspection Branch have the authority to:

a) To issue warnings;

b) Impose a fine up to 5,000,000 VND.

2. The Director of Customs, the Director of Post-Clearance Inspection Branch, the Head of Control Teams under the Provincial, Interprovincial, and Central City Customs Bureau (hereinafter referred to collectively as the Customs Bureau), the Head of Anti-Smuggling Control Teams and Sea Control Teams under the General Department of Customs' Anti-Smuggling Investigation Bureau have the authority to:

a) To issue warnings;

b) To impose fines up to VND 20,000,000;

c) Suspend the right to use licenses within their jurisdiction as stipulated by law;

d) Confiscate goods and means used to commit administrative violations;

3. The Director of the Anti-Smuggling Investigation Bureau, the Director of the Post-Clearance Inspection Bureau under the General Department of Customs, the Director of the Customs Bureau have the authority to:

a) To issue warnings;

b) To impose fines up to VND 70,000,000;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Apply remedial measures prescribed in Clause 3 Article 3 of this Decree;

Article 20. Competence to impose administrative penalties of People's Public Security

1. The Chief of County Public Security, the Chief of Economic Crime Investigation Departments, the Chief of Border Gate Police Stations, and Industrial Zones have the authority to:

a) To issue warnings;

b) Impose fines up to 10,000,000 VND;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Apply remedial measures prescribed at points a, d, đ, e, and g Clause 3 Article 3 of this Decree;

2. The Director of the Provincial Public Security Force has the authority:

a) To issue warnings;

b) Impose fines up to thirty million dong;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Apply remedial measures prescribed at points a, b, d, đ, e, g, and h Clause 3 Article 3 of this Decree;

3. The Director of the Economic Crime Investigation Bureau has the authority to:

a) To issue warnings;

b) To impose a fine up to VND 500,000,000;

c) To confiscate objects and means of administrative violations;

d) Suspend the right to use licenses within their jurisdiction as stipulated by law;

đ) Apply remedial measures prescribed at points a, b, d, đ, e, g, and h Clause 3 Article 3 of this Decree;

Article 21. The authority to impose penalties of the Director of the Competition Management Bureau

1. Issue a warning;

2. Fine up to 70,000,000 VND.

3. Confiscate objects and means used in committing administrative violations.

4. Suspend the right to use licenses within their jurisdiction as stipulated by law.

5. Apply remedial measures prescribed at points a, b, d, đ, e, g, and h Clause 3 Article 3 of this Decree.

Article 22. Competence to impose administrative sanctions of the Chairman of the People's Committee at district level and the Chairman of the People's Committee at provincial level

1. The Chairman of the People's Committee of a district-level city has the right:

a) To issue warnings;

b) Fine up to VND 30,000,000.

c) Confiscation of objects and means used for committing administrative violations in the field of industrial property;

d) Revocation of licenses and certificates of practice in accordance with the provisions of the law;

đ) Application of measures to remedy consequences prescribed in points a, b, d, đ, e, g and h of Clause 3, Article 3 of this Decree.

2. The Chairman of the People's Committee of a provincial-level city has the right:

a) To issue warnings;

b) To impose a fine up to VND 500,000,000;

c) To confiscate objects and means of administrative violations;

d) Revocation of licenses and certificates of practice in accordance with the provisions of the law;

đ) Application of measures to remedy consequences prescribed in Clause 3, Article 3 of this Decree.

Article 23. Competence to apply preventive measures and ensure the imposition of administrative sanctions

1. The Head of Public Security Office at district level, the Head of Economic Police Department, the Head of Border Gate Public Security Station, the Director of Customs Branch, the Head of Inspection Team under the Customs Department, the Head of Anti-Smuggling Control Team and the Commander of Coast Guard Squadron under the Anti-Smuggling Investigation Department of the General Department of Customs, the Head of Market Management Team, the Inspector-in-Charge of the Science and Technology Department of the Ministry of Science and Technology have the right to temporarily detain objects and means of violation in the field of industrial property according to the conditions stipulated in Clause 1, Article 215 of the Intellectual Property Law and procedures stipulated in Article 46 of the Administrative Violations Handling Ordinance.

2. The Head of Public Security Office at district level, the Head of Economic Police Department, the Head of Border Gate Public Security Station, the Director of Customs Branch, the Head of Inspection Team under the Customs Department, the Head of Anti-Smuggling Control Team and the Commander of Coast Guard Squadron under the Anti-Smuggling Investigation Department of the General Department of Customs, the Head of Market Management Team, police officers of the People's Armed Police Force, market inspectors, specialized science and technology inspectors on duty have the right to inspect transport vehicles and items when there is evidence that these transport vehicles and items conceal objects of administrative violations in the field of industrial property according to the conditions stipulated in Clause 1, Article 215 of the Intellectual Property Law and procedures stipulated in Article 48 of the Administrative Violations Handling Ordinance.

3. The Head of Public Security Office at district level, the Head of Economic Police Department, the Head of Border Gate Public Security Station, the Director of Customs Branch, the Head of Inspection Team under the Customs Department, the Head of Anti-Smuggling Control Team and the Commander of Coast Guard Squadron under the Anti-Smuggling Investigation Department of the General Department of Customs, the Head of Market Management Team have the right to decide to temporarily detain persons, conduct administrative inspections of persons, search places where objects and means of administrative violations in the field of industrial property are concealed according to the conditions stipulated in Clause 1, Article 215 of the Intellectual Property Law and procedures stipulated in Articles 45, 47 and 49 of the Administrative Violations Handling Ordinance, and Article 17 of Decree No. 128/2008/NĐ-CP dated December 16, 2008 of the Government detailing certain provisions of the Administrative Violations Handling Ordinance.

Chapter IV

PROCEDURES FOR HANDLING VIOLATIONS

Article 24. Right to request handling of violations and competence to proactively detect and handle violations

1. The subject of industrial property rights has the right to request handling of violations in the field of industrial property including:

a) The subject of industrial property rights that suffer losses due to violations including organizations granted the authority to manage protected geographical indications in Vietnam;

b) Individuals or entities using objects of industrial property that suffer losses due to violations, if not restricted by the owner of industrial property from requesting handling of violations.

When implementing requests to handle acts infringing upon industrial property rights as provided in point a, Clause 1, Article 211 of the Intellectual Property Law and unfair competition acts as provided in Article 130 of the Intellectual Property Law, organizations and individuals referred to in this clause must clearly state the nature and degree of violation in the request for handling violations and provide relevant documents and evidence as stipulated in Clause 2, Article 26 of this Decree.

2. Organizations and individuals who discover acts infringing upon industrial property rights causing damage to consumers or society, acts of violation related to counterfeit goods, labels, branded products, and geographical indications; organizations and individuals who suffer or may suffer damage due to unfair competition acts in the field of industrial property have the right to report and request competent authorities to proceed with verification and punishment procedures.

Upon receiving reports from organizations and individuals as provided in this clause, competent authorities handling violations shall be responsible for inspection and cooperate with the holders of industrial property rights to verify and handle violations in accordance with Clause 3 of this Article.

3. Competent authorities handling violations shall be responsible for proactively inspecting, auditing, detecting, and cooperating with the holders of industrial property rights to verify and handle violations related to the following subjects:

a) Counterfeit goods, labels, packaging, other items bearing trademarks or geographical indications;

b) Goods and services violating regulations concerning foodstuffs, pharmaceuticals, cosmetics, animal feed, fertilizers, veterinary drugs, plant protection chemicals, construction materials, transportation means, medical, agricultural, environmental chemicals, and other goods determined by authorized persons based on periodic or spot inspection tasks.

Article 25. Delegation to Request Handling of Violations

1. The subject of industrial property rights as stipulated in Clause 1, Article 24 of this Decree, if not directly submitting the request for handling violations, may delegate to the head of their representative office, branch, agent, or industrial property service organization in Vietnam to carry out the procedures for requesting handling of violations as prescribed in this Decree.

2. The delegation must be made in writing in the form of a power of attorney or a delegation contract. The power of attorney accompanying the request for handling violations must be the original with the signature of the authorized representative of the delegator and the seal of confirmation of the delegator, if there is a legally registered seal or confirmation from a notary public, consulate, local authority, or other form recognized as legal according to the law at the place where the power of attorney was established. If the power of attorney is in a foreign language, it must be accompanied by a Vietnamese translation certified by a notary public, consulate, local authority, or confirmed by the industrial property service organization that is the recipient of the delegation. In cases where a copy of the power of attorney refers to the original power of attorney previously submitted to the same authority for handling violations, it will also be considered valid provided that the original power of attorney remains effective and consistent with the delegation content.

4. A power of attorney with validity in the procedure for establishing rights as prescribed in Article 107 of the Intellectual Property Law, which clearly states the delegation content including enforcement and protection procedures for industrial property rights in Vietnam, shall also have legal validity in the procedure for requesting handling of violations as prescribed in this Decree.

5. Conditions for implementing delegation, rights, obligations, and issues related to the work of the representative under delegation, the effect of re-delegation or replacement delegation according to the content of the power of attorney and the provisions of the Civil Code.

Article 26. Request for Handling Violations

1. Requests for handling violations must be expressed in writing in the form of a request for handling violations, specifying the date of submission, the name of the receiving agency or agencies, information about the organization or individual requesting handling of violations; the authorized representative or the organization or individual delegated; the relevant industrial property object; goods or services suspected of violation; the name and address of the violating organization or individual; measures requested for handling; the signature of the authorized representative of the organization or individual requesting handling of violations or the organization or individual delegated, and the seal confirming the signature, if applicable; if the request has been previously sent to another agency, the name of the agency and the date of sending the previous request must be clearly stated.

2. The request for handling violations must be accompanied by documents proving the right to request handling of violations; descriptions or photographs of the acts or goods or services in violation; locations where the acts or goods or services in violation occur. The organization or individual requesting handling of violations may provide additional documents, samples, evidence to assist the competent authority in determining the acts and goods or services in violation.

Article 27. Acceptance and Examination of Requests for Handling Violations

1. Upon receipt of a petition requesting handling of violations, the receiving agency shall be responsible for performing the following tasks:

a) Determine the authority to handle the violation; if the request for handling the violation falls within the jurisdiction of another agency, guide the petitioner to submit the petition to the competent authority.

b) Review the documents and evidence attached to the petition.

2. The examination of petitions requesting handling of violations shall be conducted as follows:

a) Within ten working days from the date of receipt of the request for handling violations, the agency handling violations is responsible for examining the validity of the request and the accompanying documents and evidence;

b) In cases where the documents and evidence provided by the requester are incomplete, the agency handling violations may require the requester to supplement the documents and evidence or provide explanations within a maximum period of thirty days from the date of the request;

c) The competent authority handling the case may require the party being requested to handle the violation to provide information, evidence, explanations; seek expert opinions from state management agencies on industrial property or seek industrial property appraisals to clarify the details of the case;

d) Within thirty days from the date of receiving complete files meeting the requirements, the person with authority shall notify the organization or individual requesting handling of violations about the planned time, procedures, measures for handling, and the cooperation and support required from the subject of industrial property rights during inspection, verification, and handling of violations.

3. Rights and Obligations of the Party Requested to Handle the Violation:

a) During the process of handling the case, the party being requested to handle the violation may themselves or upon the request of the person with authority provide information, documents, evidence, and explanations within ten days from the date set in the notification of the person with authority handling the violation case or the date of the administrative violation record. In cases of legitimate reasons, the party being requested to handle the violation may request in writing from the person with authority handling the case to extend the above period but not exceeding thirty days from the date set in the notification or the date of the administrative violation record;

b) The party being requested to handle the violation may delegate to another organization or individual as prescribed in Article 25 of this Decree to perform the provision of information, documents, evidence, and explanations as stipulated in point a of this clause;

c) To prove that the act does not infringe upon the rights of patents or utility models as processes, the party being requested to handle the violation has the obligation to prove that the product alleged to be produced from the infringing process of the patent or utility model in reality is not produced from the protected process of the patent or utility model, in accordance with the corresponding conditions prescribed in Clause 4, Article 203 of the Intellectual Property Law;

d) In cases where the party being requested to handle the violation does not provide or provides insufficient information, documents, evidence, or explanations to prove non-violation, the person with authority decides to handle the case based on the results of inspections, verifications, and the information, documents, and evidence provided by the organization or individual requesting handling of violations to issue a decision on handling.

Article 28. Providing Evidence and Information to Identify Violations

1. The person requesting the handling of violations may request industrial property ownership appraisal services, request the competent state agency on industrial property to provide professional opinions on determining the scope of protection and violation factors, and proactively provide documents and evidence to prove the infringement acts or clarify the circumstances of the case.

2. The competent authority handling violations may require the person requesting the handling of violations to provide documents, evidence, explanations, or clarify the circumstances of the case within a specified period; request the subject of industrial property rights to provide information, documents, samples for identifying signs of violations, determining genuine goods, counterfeit goods, infringing goods, sources of supply or places of consumption of legitimate goods, bases for determining goods produced outside the permitted use scope of industrial property objects or imported goods that are not parallel imports.

3. The competent authority handling violations may itself conduct inspections, verifications, collection of evidence, determination of the scope of protection of industrial property rights, and determination of violation acts according to intellectual property laws. In necessary cases, it may propose relevant agencies to conduct verifications, collection of violation evidence, request the competent state agency on industrial property to provide professional opinions or request industrial property appraisals to determine the scope of protection and violation factors.

4. Industrial appraisal organizations and industrial property appraisers who issue appraisal conclusion documents bear legal responsibility for the objectivity, truthfulness, and legality of their evaluations and conclusions stated in the appraisal conclusion document. The authority handling violations may rely on the confirmation document of counterfeit goods or services of the industrial property rights subject, the professional opinion document of the competent state agency on industrial property, and the appraisal conclusion document to determine the violation act but must bear legal responsibility for the violation conclusion and the decision to handle the violation.

5. The competent authority handling violations may provide related information on production sites, sales channels, sources of counterfeit goods, infringing goods, and case circumstances at the request of the industrial property rights subject or the authority with jurisdiction to resolve disputes or impose penalties from other agencies or organizations, provided that such provision of information and documents does not affect the effectiveness of handling related cases and does not fall under confidentiality as prescribed by law.

6. The competent authority handling the case has the right to require the party requested to handle the violation and parties with rights and interests involved in the violation case to provide information, documents, and evidence to prove their claims or rebuttal arguments; require the party holding or controlling evidence and documents related to the violation to present such evidence and documents as a basis for resolving the case.

7. The subject of industrial property rights or the authorized representative of the subject of industrial property rights may request the competent authority handling violations to allow participation and support in inspection, verification, collection of evidence, determination of genuine goods, counterfeit goods, infringing goods, violation factors on goods, items, raw materials, materials, business means, and measures to handle violating goods and services. The competent authority handling violations decides on allowing participation according to this request, except when necessary to protect trade secrets at the reasonable request of the party being processed.

Article 29. Handling Violation Cases When Disputes Arise

1. In cases where complaints, accusations, or disputes arise regarding registration rights, ownership rights, rights to request violation handling, protection conditions, or the scope of industrial property rights protection related to the application for violation handling after the case has been accepted, the competent authority shall take the following measures:

a) Requesting the relevant parties to follow the procedures for resolving complaints, accusations, or disputes at the competent authority as stipulated by intellectual property laws;

b) Requesting the holder of industrial property rights to explain, commit, or requesting the state management agency on industrial property to clarify the legal status of the disputed industrial property rights.

Within fifteen days from receiving the explanation or commitment letter from the holder of industrial property rights or the response letter from the state management agency on industrial property, the competent authority accepting the case must inform the person requesting violation handling about whether the procedure will be continued or terminated.

2. If the application for violation handling has been accepted but the parties involved reach an agreement and propose a resolution method in compliance with intellectual property laws that does not affect the rights and interests of third parties, consumers, and society, the competent authority handling the violation shall record this resolution and cease further processing of the case.

Article 30. Refusal to Handle or Cease Handling Violations

1. The violation handling authority must refuse to handle violations in the following situations:

a) The violation handling request is submitted during a dispute over related industrial property rights;

b) The person requesting violation handling does not meet the requirements of the violation handling authority regarding explanations, supplementary evidence proving the subject's status of industrial property rights, and proving the violation as stipulated in point b, Clause 2, Article 27 of this Decree;

c) The administrative penalty statute of limitations has expired as provided in Clause 1, Article 10 of the Administrative Violation Handling Ordinance;

d) The investigation results of the violation handling authority or the police show that there is no violation as described in the violation handling request;

đ) There is a conclusion, decision, or notification from the competent authority stating insufficient grounds to proceed with the handling procedure;

e) The act is not considered a violation according to intellectual property laws or is not subject to administrative penalties under this Decree;

2. The person accepting the violation handling request must suspend the handling procedure in the following cases:

a) A complaint, accusation, or dispute arises after the case has been accepted and must await the resolution result from the competent authority as stipulated in Clause 1, Article 29 of this Decree;

b) The person submitting the application for violation handling withdraws their request;

c) The parties resolve the matter through mutual agreement as stipulated in Clause 2, Article 29 of this Decree;

3. In cases where the violation involves producing or trading counterfeit goods bearing trademarks, geographical indications, packaging, labels, or other items bearing counterfeit trademarks or geographical indications, the authorized authority may still proceed with administrative penalty procedures despite receiving a withdrawal notice as stipulated in point b, Clause 2 of this Article.

Article 31. Coordination in Handling Violations

1. Requirements for coordination in handling violations:

a) In cases where the violation involves complex circumstances or is related to multiple organizations or individuals, the competent authority accepting the application for violation handling may request coordination from other competent authorities and local state management agencies on industrial property to handle the violation. The coordination request must include a summary of the case and suggestions for cooperative actions, with a deadline of fifteen days for the receiving authority to respond;

b) The authority receiving the request for coordination has the responsibility to respond within the specified time limit. If it refuses to coordinate, it must clearly state the reasons.

2. Utilizing the results of examining and handling requests to address violations from other authorities:

a) The violation handling authority may utilize the results of determining the violation behavior and the value of the infringing goods conducted by another competent authority, if available, to ensure consistency in handling measures and penalties for similar or related violations involving the same industrial property object of the same owner;

b) In cases where there are differing opinions, conclusions, or decisions among competent authorities regarding the determination of violation behavior, handling measures, or severity of penalties, the authorized penalty authority may establish an advisory board consisting of reputable experts in the relevant field to assist in concluding on the violation behavior.

Article 32. Application of preventive measures and assurance for administrative penalties

1. The authorized authority to impose administrative penalties shall issue decisions on applying preventive measures and assurance for administrative penalties in the following cases:

a) Violations that pose a serious risk of causing damage to consumers or society; evidence of violations that may be disposed of;

b) Organizations or individuals who have committed violations showing signs of evading responsibility for such violations;

c) Ensuring the ability to enforce the decision on imposing administrative penalties against organizations or individuals who have committed violations.

2. The person submitting a request for handling violations may propose the authorized authority to apply preventive measures and assurance for administrative penalties when situations as stipulated in Clause 1 of this Article arise.

3. Preventive measures and assurance for administrative penalties in the field of intellectual property include: temporary detention of persons; temporary detention of goods, evidence of violations, means of transportation involved in violations; body search; search of transport vehicles, objects, places where goods, evidence of violations, means of transportation are hidden.

4. The authority issuing decisions on applying preventive measures and assurance for administrative penalties must bear legal responsibility, including liability for compensation for damages caused to organizations or individuals subjected to preventive measures if such measures are applied contrary to regulations.

Article 33. Administrative penalty procedures

1. Upon discovering a violation, the authorized authority to impose administrative penalties must immediately order the cessation of the violation, clearly explain the regulations on administrative penalties in the field of intellectual property and related laws on intellectual property to the organization or individual committing the violation, and require them to comply with the provisions of the law.

2. In cases where there are sufficient grounds and clear evidence allowing the application of a warning penalty form, the authorized authority to impose administrative penalties does not need to establish a violation record and issue an administrative penalty decision at the location where the violation occurred; the warning penalty form must be decided in writing.

3. In cases where a violation requires the imposition of a fine penalty, except in cases where a simplified procedure is applied, the authority executing official duties must establish an administrative violation record in accordance with Article 55 of the Administrative Violation Handling Ordinance. The person establishing the record must provide conditions for the organization or individual committing the violation to present their opinions on the violation.

4. The decision to impose penalties and the content of the penalty decision must comply with the provisions of Article 56 of the Administrative Violation Handling Ordinance. The penalty decision must be sent to the organization or individual being penalized within three days from the date of issuance of the decision.

5. In cases where the penalty decision includes supplementary penalty forms leading to the need to carry out procedures for establishing, amending, suspending, terminating, or revoking the validity of intellectual property protection certificates, registration certificates for transferring intellectual property rights, industrial property representative service cards, or industrial property examination cards, or certificates of qualified examination organizations, the authority issuing the penalty decision must send it to the Ministry of Science and Technology Inspectorate and the Intellectual Property Department for coordination in monitoring and implementation.

6. In cases where the penalty decision includes supplementary penalty forms or remedial measures leading to the need to carry out procedures for revoking, recovering, suspending, or amending business registration certificates, domain name registrations, or product labels, the penalty decision must be sent to relevant state management agencies and organizations for implementation.

Article 34. Enforcement of Penalty Decisions

1. The enforcement of penalty decisions and coercive enforcement of administrative penalty decisions shall be carried out in accordance with Articles 66, 66a, 67, 68, and 69 of the Administrative Violation Handling Ordinance.

2. Business management agencies, agencies, and organizations managing domain names, advertising have the responsibility to implement requirements stated in administrative penalty decisions regarding the cessation of violation activities; removal of violation factors; suspension of business operations for a limited period, including e-commerce activities related to violating goods and services; removal of violation factors from advertising media; removal of information about violating goods and services from electronic news pages; changing or recovering company names, domain names containing violation factors.

3. Credit institutions have the responsibility to collect fines, transfer collected fines, and refund overpaid fines based on the decision on handling the case issued by the authorized authority to impose administrative penalties in accordance with the Administrative Violation Handling Ordinance and this Decree.

Article 35. Amending, Revoking, Suspending Administrative Penalty Decisions

1. In cases where the decision resolving industrial property disputes issued by the competent authority within three months from the date of issuance of the administrative penalty decision leads to changes in the basis or content of the administrative penalty decision, the authorized administrative penalty authority shall issue a decision to amend, suspend, revoke partially or entirely the effectiveness of the previously issued administrative penalty decision in accordance with the dispute resolution decision.

2. In cases where the administrative penalty decision has been executed by the organization or individual subject to the penalty, the person authorized to impose penalties shall implement one of the following measures:

a) Request the State Treasury at the location where the fine was collected to refund partially or fully the amount of the fine paid according to the amendment, revocation, suspension decision upon request of the organization or individual who has paid the fine. The refund request will only be accepted within ninety days from the date of issuance of the amendment, revocation, suspension decision;

b) Return goods, items, business means temporarily seized or confiscated but not yet processed. In cases where the seized or confiscated goods, items, business means have been processed, the organization or individual requesting violation handling shall be responsible for compensating the organization or individual being penalized according to the commitment made when requesting violation handling, if any;

c) Other reasonable measures proposed by the relevant parties.

3. In cases where the administrative penalty decision is found to violate the authority, procedure, or basis for issuance, it shall be handled according to the provisions of Articles 118, 119, and 121 of the Administrative Violation Handling Ordinance and the regulations on handling complaints and denunciations.

Article 36. Handling of Violation Evidence and Means

1. Violation evidence and means shall be handled through the following measures:

a) Compel removal or destruction of the violation element;

b) Compel removal of the violation element and export out of Vietnam for transiting goods in violation; compel re-export for imported goods in violation;

c) Compel distribution or use for non-commercial purposes in accordance with the conditions stipulated in Clause 2 of this Article;

d) Other handling measures agreed upon and proposed by the parties that do not contravene the Intellectual Property Law, do not affect the interests of third parties, consumers, society, and are accepted by the authorized administrative penalty authority;

đ) Compel destruction of violation evidence and means, goods when the violation element cannot be removed;

2. Conditions for applying the measure of compelling non-commercial distribution or use:

a) Goods, items have utility value and are not parts, components, details of products, labels, packaging, or other items containing violation elements;

b) The violation element has been removed;

c) Distribution or use is not for commercial purposes, prioritizing humanitarian, charitable purposes, or serving social benefits;

d) The recipient of distribution or use of goods is not a potential customer of the industrial property rights holder;

3. Apply the destruction measure when one of the following conditions exists:

a) Products, goods, labels, packaging, other items, violation evidence and means cannot remove the violation element;

b) Goods have no utility value, harmful to human health, animals, crops.

4. The provisions regarding the conditions for applying the handling measures of violation evidence in Clauses 1, 2, and 3 of this Article also apply to raw materials, materials, means mainly used for producing and trading in violation goods.

5. The authorized administrative penalty authority decides and clearly records in the administrative penalty decision the handling measures for violation evidence and means and must be carried out within thirty days from the date of signing the administrative penalty decision.

Organizations and individuals violating administrative regulations are responsible for implementing the handling measures for violation evidence and means prescribed in Clause 1 of this Article. If organizations or individuals violating do not voluntarily implement them, coercive measures will be applied. Organizations and individuals violating must bear all costs for the application of coercive measures.

The handling of violation evidence and means must be carried out under the supervision of representatives of the competent authority handling violations. The industrial property rights holder or their authorized representative may request the authorized administrative penalty authority to allow participation, witnessing, and supporting the handling of violation evidence and means.

Article 37. Procedure for Confiscation and Disposal of Goods, Evidence, and Means of Violation Subject to Confiscation

1. In cases where the evidence or means of violation are counterfeit goods bearing trademarks or geographical indications; raw materials or means primarily used for producing or trading counterfeit goods bearing trademarks or geographical indications; labels, packaging, or other items containing elements of violation; raw materials or means primarily used for producing or trading labels, packaging, or other items containing elements of violation; documents or materials that have been altered, erased, or forged, the authorized authority shall carry out the procedure for temporarily holding the goods, evidence, and means of violation and apply the confiscation penalty form.

In cases where the goods, evidence, or means of violation are bulky, difficult to transport, or prone to damage, the temporary holding measure shall be implemented in the form of sealing and transferring to the organization or individual who violated the regulation for safekeeping, pending the decision of the authorized authority.

2. The form of the confiscation penalty and measures for disposing of goods, evidence, and means of violation subject to confiscation shall be decided by the authorized authority and clearly recorded in the penalty decision in accordance with the following provisions:

a) Where it is possible to remove the elements of violation, the authorized authority shall organize the removal of such elements from the goods, evidence, or means so they can be auctioned, distributed, or put to non-commercial use without affecting the ability to exploit the rights of the industrial property right holder, prioritizing humanitarian, charitable, and social welfare purposes.

b) Where it is not possible to remove the elements of violation from the goods, evidence, or means or where the conditions for applying the measures provided in point a of this clause are not met, the authorized authority shall organize their public destruction in accordance with Article 61 of the Administrative Violation Handling Ordinance.

3. The disposal of evidence and means of violation subject to confiscation must be carried out within ninety days from the date of signing the penalty decision. The authorized authority has the responsibility to notify the organizations or individuals requesting the handling of violations about the measures, time, and location for disposing of the goods, evidence, and means of violation.

The industrial property right holder or the authorized representative of the industrial property right holder has the right to participate, supervise, and support the competent authority in handling goods, evidence, and means of violation subject to confiscation.

Chapter V

IMPLEMENTING PROVISIONS

Article 38. Transitional Provisions

For administrative violations concerning industrial property rights handled from the date the Intellectual Property Law amending certain articles of the Intellectual Property Law came into effect but before the effective date of this Decree, they shall be handled according to the provisions of Government Decree No. 106/2006/NĐ-CP dated September 22, 2006, on penalties for administrative violations concerning industrial property rights.

In cases where administrative violations concerning industrial property rights have not been dealt with and this Decree provides for lighter penalties or remedial measures than those stipulated previously, the provisions of this Decree shall apply.

Article 39. Effective date

1. This Decree takes effect from November 9, 2010, and replaces Government Decree No. 106/2006/NĐ-CP dated September 22, 2006, on penalties for administrative violations concerning industrial property rights.

2. The Ministry of Science and Technology shall be responsible for guiding the determination of acts of violation, procedures for applying measures to recover illegal profits into the state budget resulting from the implementation of administrative violations, and other related matters concerning the enforcement of this Decree; collecting, storing, and statistically analyzing information on the handling of violations of industrial property laws, establishing and managing databases and electronic networks for enforcing industrial property rights through administrative measures.

3. Ministers, heads of ministerial-level agencies, heads of agencies under the Government, Chairpersons of provincial and centrally-administered city People's Committees shall be responsible for organizing the implementation of this Decree within their respective functions and duties./.