Circular No. 13/2020/TT-BTC

CIRCULAR

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF CIRCULAR No. 13/2015/TT-BTC OF 30 JANUARY 2015 PROVIDING FOR CUSTOMS INSPECTION, SUPERVISION AND SUSPENSION OF CUSTOMS PROCEDURES FOR EXPORTED AND IMPORTED GOODS UPON REQUESTS FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS; CONTROL OF COUNTERFEIT GOODS AND GOODS INFRINGING INTELLECTUAL PROPERTY RIGHTS

Pursuant to the Law on Customs of 23 June 2014;

Pursuant to the Law on Intellectual Property of 29 November 2005; the Law amending and supplementing a number of articles of the Law on Intellectual Property of 19 June 2009; the Law amending and supplementing a number of articles of the Law on Insurance Business and the Law on Intellectual Property of 14 June 2019;

Pursuant to the Law on Handling of Administrative Violations of 20 June 2012;

Pursuant to the Government's Decree No. 08/2015/NĐ-CP of 21 January 2015 and Decree No. 59/2018/NĐ-CP of 20 April 2018 amending and supplementing a number of articles of Decree No. 08/2015/NĐ-CP of 21 January 2015 detailing and providing measures for implementation of the Law on Customs regarding customs procedures, inspection, supervision and control;

Pursuant to the Government's Decree No. 01/2015/NĐ-CP of 02 January 2015 and Decree No. 12/2018/NĐ-CP of 23 January 2018 amending and supplementing a number of articles of the Government's Decree No. 01/2015/NĐ-CP of 02 January 2015 detailing the scope of customs operation areas and the responsibility for coordination in preventing and combating smuggling and illegal transport of goods across the border;

Pursuant to the Government's Decree No. 105/2006/NĐ-CP of 22 September 2006 and Decree No. 119/2010/NĐ-CP of 30 December 2010 amending and supplementing a number of articles of the Government's Decree No. 105/2006/NĐ-CP of 22 September 2006 detailing and guiding the implementation of a number of articles of the Law on Intellectual Property regarding protection of intellectual property rights and state management of intellectual property;

Pursuant to the Government's Decree No. 185/2013/NĐ-CP of 15 November 2013 and Decree No. 124/2015/NĐ-CP of 19 November 2015 amending and supplementing a number of articles of the Government's Decree No. 185/2013/NĐ-CP of 15 November 2013 providing for penalties for administrative violations in commercial activities, the production and trading of counterfeit and banned goods, and the protection of consumer rights;

Pursuant to the Government's Decree No. 99/2013/NĐ-CP of 29 August 2013 providing for penalties for administrative violations in the field of industrial property;

Pursuant to the Government's Decree No. 131/2013/NĐ-CP of 16 October 2013 providing for penalties for administrative violations concerning copyright and related rights;

Pursuant to the Government's Decree No. 87/2017/NĐ-CP of 26 July 2017 defining the functions, tasks, powers and organisational structure of the Ministry of Finance;

At the request of the Director General of the General Department of Customs;

The Minister of Finance hereby promulgates the Circular amending and supplementing a number of articles of Circular No. 13/2015/TT-BTC of 30 January 2015 providing for customs inspection, supervision and suspension of customs procedures for exported and imported goods upon requests for the protection of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights.

Article 1. Amendment and supplementation of a number of articles of Circular No. 13/2015/TT-BTC of 30 January 2015

1. To amend and supplement a number of clauses of Article 3

a) Clause 1 is amended and supplemented as follows:

“1. Counterfeit goods include the goods defined in Clause 8, Article 3 of the Government's Decree No. 185/2013/NĐ-CP of 15 November 2013 and Clause 3, Article 1 of the Government's Decree No. 124/2015/NĐ-CP of 19 November 2015 amending and supplementing a number of articles of Decree No. 185/2013/NĐ-CP of 15 November 2013 providing for penalties for administrative violations in commercial activities, the production and trading of counterfeit and banned goods, and the protection of consumer rights.”

b) Clause 6 is amended and supplemented as follows:

“6. Customs control of counterfeit goods and goods infringing intellectual property rights means the application, by customs authorities, of professional customs control measures and/or other professional measures under the law to prevent and combat smuggling and illegal transport of counterfeit goods and goods infringing intellectual property rights within the customs operation area.”

c) Clause 7 is amended and supplemented as follows:

“7. Applications include: the Application for inspection and supervision of exported and imported goods upon requests for the protection of intellectual property rights; the Application for extension of the period of application of measures of inspection and supervision of exported and imported goods upon requests for the protection of intellectual property rights; and the Application for suspension of customs procedures for goods suspected of infringing intellectual property rights.”

2. To amend and supplement a number of clauses of Article 4

a) Clause 3 is amended and supplemented as follows:

“3. To lodge complaints and lawsuits against decisions on the handling of counterfeit goods and goods infringing intellectual property rights and against the customs authority's application of measures to control exported and imported goods related to intellectual property, in accordance with the law on complaints and the law on administrative procedures.”

b) Clause 6 is added as follows:

“6. To be responsible for providing information to the customs authority for inspection, supervision and control, and for updating contents related to distinguishing counterfeit goods and goods infringing intellectual property rights from genuine goods whose intellectual property rights have been protected.”

3. Clause 5, Article 5 is amended and supplemented as follows:

“5. To settle complaints of relevant organisations and individuals concerning the handling of counterfeit goods and goods infringing intellectual property rights and the customs authority's application of measures to control exported and imported goods related to intellectual property, in accordance with the law on complaints.”

4. Article 6 is amended and supplemented as follows:

“Article 6. Submission of dossiers requesting inspection and supervision of exported and imported goods upon requests for the protection of intellectual property rights

1. The applicant shall send the dossier requesting inspection and supervision of exported and imported goods upon requests for the protection of intellectual property rights to the General Department of Customs through the customs electronic data processing system, comprising:

a) The Application for inspection and supervision of exported and imported goods upon requests for the protection of intellectual property rights in Form No. 01-ĐĐN/SHTT/2020 of the Appendix issued together with this Circular;

b) The certificate of protection of industrial property rights or other documents proving that the industrial property right is protected in Vietnam, or the certificate of registration of a contract for the transfer of the right to use an industrial property object; the certificate of registration of copyright, related rights, plant variety rights or other documents proving copyright, related rights or plant variety rights;

c) A detailed description of goods infringing intellectual property rights, photographs, and features distinguishing genuine goods from goods infringing intellectual property rights;

d) A list of persons lawfully exporting or importing the goods subject to the supervision request; a list of persons likely to export or import goods infringing intellectual property rights;

dd) The power of attorney (where the application is submitted by authorisation).

The contents of the authorisation must conform to law; where the authorising organisation or individual has no head office in Vietnam, the power of attorney must be consularly legalised, except where consular legalisation is not required under agreements in international treaties to which Vietnam is a party;

e) The customs fee payment document under the Minister of Finance's Circular No. 274/2016/TT-BTC of 14 November 2016 providing for rates, collection, payment, management and use of customs fees and fees for transit goods and means of transport.

2. Where the documents provided to the General Department of Customs under this Article are changed or supplemented, the applicant is responsible for notifying the General Department of Customs of the number and date of the customs authority's notice accepting inspection and supervision and of the changed or supplemented information, enclosing documents related to the changed or supplemented information, by the method prescribed in this Article.

The customs authority shall check and cross-check the information notified by the applicant against the accepted dossier requesting inspection and supervision and shall send a written notice of the change or supplementation of information to the provincial and municipal Customs Departments and the Anti-Smuggling Investigation Department.

Where the customs electronic data processing system is not yet able to meet requirements or has an error, the applicant shall submit 01 paper dossier comprising the documents prescribed in this Article at the One-Stop Division of the General Department of Customs or send it by post to the General Department of Customs (the Department of Customs Supervision and Management). The documents prescribed in Points a, c and d, Clause 1 of this Article are originals; the documents prescribed in Points b, dd and e, Clause 1 of this Article are copies signed and sealed for certification by the intellectual property right holder or the lawfully authorised person.”

5. To amend and supplement a number of clauses of Article 7

a) Clause 1 is amended and supplemented as follows:

“1. After receiving a complete dossier as prescribed in Article 6 of this Circular, the customs authority shall examine the following contents:

a) The legal capacity of the applicant under law;

b) The conformity between the contents of the Application and the enclosed documents; the validity period of the certificates of protection of intellectual property rights;

c) Whether the photographs conform to the contents of the intellectual property right for which protection is requested or to the contents of the report on the infringement;

d) Whether the contents of the authorisation conform to law;

Where the dossier is incomplete, within 05 working days from the date of receipt of the dossier, the customs authority shall notify the applicant in writing to supplement it.”

b) Clause 2 is amended and supplemented as follows:

“2. Cases in which receipt of an application is refused:

a) The applicant does not have sufficient legal capacity to file the application under law;

b) The contents of the Application and the enclosed documents are inconsistent or not uniform;

c) While the Application is being processed, the customs authority receives a written notice from a competent authority on a dispute or complaint concerning the intellectual property right holder or the lawfully authorised person, or the eligibility or scope of protection of the intellectual property right;

d) The supplementary dossier is submitted more than 10 working days after the date on which the customs authority sent the notice requesting supplementation under Clause 1 of this Article.”

6. Article 8 is amended and supplemented as follows:

“Article 8. Extension and termination of the period of application of customs inspection and supervision measures for goods upon requests for the protection of intellectual property rights

1. Where the applicant requests extension of the period of application of customs inspection and supervision measures for goods upon requests for the protection of intellectual property rights under Clause 2, Article 74 of the Law on Customs, the intellectual property right holder or the lawfully authorised person shall send the Application for extension to the General Department of Customs through the customs electronic data processing system no later than 20 days before the expiry date stated in the notice accepting the request for inspection and supervision; the Application must clearly state the number, date and validity period of the certificate of protection of the intellectual property right for which extension is requested, and the number and date of the customs authority's notice accepting inspection and supervision. The customs authority shall receive the Application for extension and handle it under Article 7 of this Circular.

Where the customs electronic data processing system is not yet able to meet requirements or has an error, the Application for extension shall be submitted at the One-Stop Division of the General Department of Customs or sent by post to the General Department of Customs (the Department of Customs Supervision and Management).

2. Cases in which the application of inspection and supervision measures is terminated:

a) The validity period stated in the notice accepting the Application expires and the applicant does not submit a written request for extension;

b) The applicant sends a written document to the General Department of Customs (the Department of Customs Supervision and Management) requesting termination of customs inspection and supervision of the goods for which protection of intellectual property rights is requested;

c) The state management agency for intellectual property announces the cancellation of the certificate of protection of intellectual property rights granted to the applicant;

d) The customs authority has grounds to determine that a document in the dossier requesting inspection and supervision is no longer valid or is forged.

3. In the case of termination of validity under Points b and c, Clause 2 of this Article, the General Department of Customs (the Department of Customs Supervision and Management) shall send a written notice to the provincial and municipal Customs Departments, the Anti-Smuggling Investigation Department and the applicant within 5 working days from the date of receiving the applicant's written request or the notice of the state management agency.”

7. Article 9 is amended and supplemented as follows:

“Article 9. Submission of dossiers requesting suspension of customs procedures

The applicant shall send the dossier requesting suspension of customs procedures for exported and imported goods upon requests for the protection of intellectual property rights to the Customs Sub-Department where customs procedures are carried out through the customs electronic data processing system, as follows:

1. Where the General Department of Customs (the Department of Customs Supervision and Management) has not yet accepted the Application for inspection and supervision, the dossier requesting suspension of customs procedures comprises:

a) The dossier requesting inspection and supervision of exported and imported goods upon requests for the protection of intellectual property rights as prescribed in Article 6 of this Circular;

b) The Application for suspension of customs procedures in Form No. 02-ĐTD/SHTT/2020 of the Appendix issued together with this Circular;

c) The guarantee document of a credit institution or the security amount as prescribed in Clause 3, Article 74 of the Law on Customs;

d) The customs fee payment document for suspension of customs procedures under the Minister of Finance's Circular No. 274/2016/TT-BTC of 14 November 2016 providing for rates, collection, payment, management and use of customs fees and fees for transit goods and means of transport.

Where the customs electronic data processing system is not yet able to meet requirements or has an error, the intellectual property right holder or the lawfully authorised person shall submit 01 paper dossier comprising the documents prescribed in this Article to the Customs Sub-Department where customs procedures are carried out for the exported or imported goods for which suspension of customs procedures is requested. The documents in Points b and c of this Clause are originals; the document in Point d of this Clause is a copy signed and sealed for certification by the applicant.

2. Where the General Department of Customs (the Department of Customs Supervision and Management) has issued a notice accepting the Application for inspection and supervision: the dossier requesting suspension of customs procedures comprises the documents prescribed in Points b, c and d, Clause 1 of this Article.”

8. To amend and supplement a number of clauses of Article 10

a) Clause 2 is amended and supplemented as follows:

“2. The period of suspension of customs procedures is 10 working days from the date the customs authority issues the decision to suspend customs procedures. Where the person requesting the suspension has a legitimate reason, this period may be extended, provided that the person requesting suspension of customs procedures pays an additional amount or submits a guarantee document as prescribed in Clause 3, Article 74 of the Law on Customs. The extension period shall not exceed 10 working days from the end of the suspension period.

After the applicant submits an Application for extension of the suspension of customs procedures and has paid the amount or submitted the guarantee document, the Customs Sub-Department that decided on the suspension shall extend the suspension period in Form No. 04-GHTD/SHTT/2020 of the Appendix issued together with this Circular.”

b) Clause 4 is amended and supplemented as follows:

“4. At the end of the period of suspension of customs procedures or of application of preventive measures as prescribed, the Customs Sub-Department that decided on the suspension shall carry out one or more of the following:

a) Where inspection determines that the suspended goods infringe intellectual property rights:

a.1) Decide to accept the case under administrative procedures on the basis of the conclusion of the intellectual property appraisal organisation (where an appraisal was requested); the professional opinions of state management agencies for intellectual property and other state management agencies (where professional opinions were sought); and the documents and evidence provided by the intellectual property right holder or the lawfully authorised person;

a.2) Decide to temporarily detain goods where there are grounds to affirm that the suspended goods are goods counterfeiting intellectual property, or that the goods infringing intellectual property rights are foodstuffs, pharmaceuticals, cosmetics, animal feed, fertilisers, veterinary drugs, plant protection drugs or construction materials.

Handle administrative violations for acts infringing intellectual property rights and goods infringing intellectual property rights under law. Within 10 working days from the date the penalty decision takes effect, the Customs Sub-Department shall return to the person who requested the suspension of customs procedures the amount paid under Clause 3, Article 74 and Clause 3, Article 76 of the Law on Customs and shall notify in writing the violator that he or she must pay the costs arising from the administrative violation;

a.3) Within 30 days from the date of issuing a decision applying an administrative measure to handle goods counterfeiting trademarks and pirated goods under Clause 4, Article 216 of the Law on Intellectual Property, the customs authority that issued the decision on handling the violation shall notify the intellectual property right holder or the lawfully authorised person in writing, as prescribed in Clause 12, Article 2 of the Law amending and supplementing a number of articles of the Law on Insurance Business and the Law on Intellectual Property, of the following information: the name and address of the consignor; the exporter, consignee or importer; a description of the goods; the quantity of goods; and the country of origin of the goods, if known.

b) Where inspection determines that the suspended goods do not infringe intellectual property rights, continue customs procedures for the consignment under Article 11 of this Circular;

c) Act on the opinion of the Court where the applicant files a civil lawsuit;

d) Hand the case over to relevant intellectual property enforcement agencies for handling where the violation is determined to fall outside the competence of the customs authority;

dd) Suspend the handling after receiving a written notice from the state management agency for intellectual property on a dispute or complaint concerning the intellectual property right holder or the lawfully authorised person, or the eligibility or scope of protection of the intellectual property right;

e) Transfer the case to the competent authority for investigation and prosecution under law where the violation is determined to show signs of a crime under the Penal Code.”

9. Article 12 is amended and supplemented as follows:

“Article 12. Customs inspection and supervision

Customs procedures for exported and imported goods upon requests for the protection of intellectual property rights comply with Circular No. 38/2015/TT-BTC of 25 March 2015 and Circular No. 39/2018/TT-BTC of 20 April 2018 amending and supplementing a number of articles of Circular No. 38/2015/TT-BTC of 25 March 2015 of the Minister of Finance providing for customs procedures; customs inspection and supervision; export duty, import duty and tax administration for exported and imported goods, and with this Circular. The contents of inspection and supervision of exported and imported goods upon requests for the protection of intellectual property rights are as follows:

1. Contents of examination of the customs dossier:

a) Examine the declared information on the goods: the customs declarant must declare fully and accurately the goods name, trademark, quality specifications, technical parameters, composition, model, code and mark, characteristics and uses of the goods as prescribed;

b) Examine and cross-check the information declared on the customs declaration against the documents in the customs dossier regarding the goods name, trademark, origin, value, quality specifications, technical parameters, composition, model, code and mark, characteristics, uses and transport route, in order to determine conformity;

c) Examine and cross-check the information on the exporter's name, importer's name, goods name and trademark against the information notified by the General Department of Customs under Clause 3, Article 7 of this Circular and the information collected by the customs authority, in order to determine whether the goods show signs of infringing intellectual property rights or being counterfeit (if any).

Where the exporter or importer is on the List of persons likely to export or import goods infringing intellectual property rights and the goods show signs of infringing intellectual property rights, the customs authority where the declaration is registered shall notify the right owner or the lawfully authorised person of the goods showing signs of infringing intellectual property rights under Article 14 of this Circular.

Where the exporter or importer is on neither the List of persons lawfully exporting or importing the goods nor the List of persons likely to export or import goods infringing intellectual property rights, the customs authority shall notify the right owner or the lawfully authorised person of goods showing signs of infringing intellectual property rights under Article 14 of this Circular only on the basis of the examination of the customs dossier and/or physical inspection of the goods that detects such signs.

d) Where the examination and cross-checking provide sufficient grounds to determine that the imported or exported goods conform and show no signs of being counterfeit or infringing intellectual property rights, the customs authority shall continue customs procedures as prescribed.

Where the examination and cross-checking find suspicious signs and the contents declared on the customs declaration do not conform to the contents of the dossier requesting inspection and supervision that the General Department of Customs (the Department of Customs Supervision and Management) has notified as accepted, but there are not yet sufficient grounds to determine a violation, the Head of the Customs Sub-Department shall decide on physical inspection of the goods and, at the same time, clearly indicate the signs of counterfeit goods or goods infringing intellectual property rights for customs officers to pay attention to during the physical inspection.

2. Contents of physical inspection of goods:

a) Examine and cross-check the goods name and trademark indicated on the packaging and the goods against the goods name and trademark declared by the customs declarant on the customs declaration, the documents in the customs dossier, and warning information raised when examining the dossier (if any), in order to determine conformity;

b) Examine and cross-check the actual goods against the dossier requesting inspection and supervision that the General Department of Customs (the Department of Customs Supervision and Management) has notified as accepted (photographs, descriptions, features identifying genuine goods), in order to determine counterfeit goods or goods showing signs of infringing intellectual property rights;

c) Where there are not yet sufficient grounds to determine that the goods show signs of being counterfeit or infringing intellectual property rights and investigation, verification and clarification are needed, the customs officer shall propose to the leader of the Customs Sub-Department to transfer the information to the customs anti-smuggling control force of the Customs Department or to the Anti-Smuggling Investigation Department (for large and complex cases) to verify, investigate and clarify, and then continue customs procedures as prescribed;

d) Where the goods are determined to be counterfeit, Article 13 of this Circular applies. Where the goods are determined to show signs of infringing intellectual property rights, Article 14 of this Circular applies.

3. In the course of customs supervision and patrol in the customs operation area, if exported or imported goods are found to show signs of being counterfeit or infringing intellectual property rights, the Head of the Customs Sub-Department where the declaration is registered or where the goods are kept shall issue a Decision to suspend the movement of goods through the customs supervision area under the Minister of Finance's Circular providing for customs procedures; customs inspection and supervision; export duty, import duty and tax administration, in order to conduct physical inspection of the goods under Clause 2 of this Article and handle the case under Article 13 or Article 14 of this Circular.

4. Where the goods are subject to specialised inspection, the customs authority shall rely on the conclusion of the specialised inspection agency to determine signs of counterfeit goods or goods infringing intellectual property rights.”

10. Article 13 is amended and supplemented as follows:

“Article 13. Handling of counterfeit goods or goods showing signs of being counterfeit

1. Where there are sufficient grounds to determine that exported or imported goods are counterfeit, penalties shall be imposed under law.

2. Where exported or imported goods are found to show signs of being counterfeit, based on the signs and nature of the goods, the competent person shall immediately apply preventive measures under Clause 3, Article 119 and Article 125 of the Law on Handling of Administrative Violations. Depending on the degree of the violation and the act, the competent authority shall apply other preventive measures under Clauses 4, 5 and 6, Article 119 of the Law on Handling of Administrative Violations in order to verify the counterfeit goods; the application of preventive measures complies with Articles 126, 127, 128 and 129 of the Law on Handling of Administrative Violations.

During the period of temporary detention of goods under Clause 8, Article 125 of the Law on Handling of Administrative Violations, the customs authority that issued the decision applying preventive measures shall carry out one or a combination of the following to determine counterfeit goods:

a) Request the goods owner to provide: the goods sale and purchase contract or an equivalent document; technical documents or an analysis of composition for goods suspected of being counterfeit under Points a, b, c and d, Clause 8, Article 3 of the Government's Decree No. 185/2013/NĐ-CP of 15 November 2013 and Clause 3, Article 1 of the Government's Decree No. 124/2015/NĐ-CP of 19 November 2015;

b) Request the owner of the genuine goods that have been counterfeited (applicable where the owner has been identified) to provide documents related to the goods (such as catalogues, expert appraisal conclusions, foreign documents, results of handling similar cases, etc.) to have a basis for determining counterfeit goods;

c) Where necessary, take samples and conduct appraisal at a conformity assessment organisation designated to conduct inspection for state management purposes, or at an appraisal trader (where the designated technical organisation has refused in writing). The procedures and techniques for sampling comply with the guidance in Article 31 of Circular No. 38/2015/TT-BTC of 25 March 2015 and Clause 20, Article 1 of Circular No. 39/2018/TT-BTC of 20 April 2018 amending and supplementing a number of articles of Circular No. 38/2015/TT-BTC of 25 March 2015 of the Minister of Finance providing for customs procedures; customs inspection and supervision; export duty, import duty and tax administration for exported and imported goods;

d) Coordinate with anti-smuggling control forces to verify and investigate under their professional regulations;

dd) At the end of the detention period or during the period of application of preventive measures as prescribed, on the basis of the appraisal conclusion (where an appraisal is conducted), if there are sufficient grounds to conclude that the goods are suspected to be counterfeit, the customs authority shall handle the violation under law. Where it is concluded that the goods are not counterfeit, the customs authority shall continue the procedures for clearance of the goods as prescribed. Where signs of a crime are found, the customs authority shall carry out handling procedures under the Law on Organisation of Criminal Investigation Bodies, the Penal Code and the Criminal Procedure Code.

3. For complex cases, goods of high value, and cases involving many localities, state agencies or international organisations, the Customs Sub-Department shall report to the provincial, inter-provincial or centrally-run city Customs Department (hereinafter referred to as the provincial or municipal Customs Department) and the General Department of Customs for timely direction in settling them.

4. The settlement of complaints or requests for damages caused by the customs authority's application of preventive measures shall comply with current regulations on settlement of complaints and state compensation liability.”

11. Article 14 is amended and supplemented as follows:

“Article 14. Handling of goods showing signs of infringing intellectual property rights

1. The Customs Sub-Department where customs procedures are carried out shall notify the intellectual property right holder or the lawfully authorised person of goods showing signs of infringing intellectual property rights in Form No. 06-TB/SHTT/2020 of the Appendix issued together with this Circular, enclosing images of the goods showing signs of infringing intellectual property rights. The notice shall be sent by registered mail with an SMS/email delivery notification service. Handling shall be as follows:

a) Within 03 working days from the date of receiving the customs authority's notice, if the intellectual property right holder or the lawfully authorised person does not request suspension of customs procedures, the customs authority shall continue customs procedures under Article 11 of this Circular;

b) Where an Application for suspension of customs procedures is received and the intellectual property right holder or the lawfully authorised person has performed the obligations prescribed in Clause 3, Article 74 of the Law on Customs, the Customs Sub-Department where customs procedures are carried out shall:

b.1) Decide to suspend customs procedures under Article 10 of this Circular;

b.2) Where there are sufficient grounds to determine that the goods infringe intellectual property rights, the Head of the Customs Sub-Department shall consider deciding to apply immediately the handling measures under Articles 214 and 215 of the Law on Intellectual Property and, at the same time, coordinate with control forces at all levels to collect information, investigate and verify the goods for handling as prescribed;

c) Where the intellectual property right holder or the lawfully authorised person has no written request for suspension of customs procedures but pays an amount or submits a guarantee document under Clause 3, Article 74 of the Law on Customs, or has an application for suspension of customs procedures but does not pay an amount or submit a guarantee document under Clause 3, Article 74 of the Law on Customs, the Customs Sub-Department where customs procedures are carried out shall not suspend customs procedures for the goods, except where goods counterfeiting intellectual property are found.

2. Where there is no information requesting the protection of intellectual property rights but, in the course of carrying out customs procedures, the customs authority finds that imported goods show signs of infringing intellectual property rights, it shall physically inspect the goods (where they have not yet been physically inspected), take samples or photographs of the goods, and base on the inspection results to decide on clearance of the goods or temporary detention of the goods for handling as prescribed.”

12. To amend and supplement a number of clauses of Article 15

a) Clause 1 is amended and supplemented as follows:

“1. The scope of responsibility of customs control forces in combating counterfeit goods and goods infringing intellectual property rights is prescribed in Article 88 of the Law on Customs and the Government's Decree No. 01/2015/NĐ-CP of 02 January 2015 and Decree No. 12/2018/NĐ-CP of 23 January 2018 amending and supplementing a number of articles of Decree No. 01/2015/NĐ-CP of 02 January 2015 detailing the scope of customs operation areas and the responsibility for coordination in preventing and combating smuggling and illegal transport of goods across the border.”

b) Clause 2 is amended and supplemented as follows:

“2. When performing customs control tasks for counterfeit goods and goods infringing intellectual property rights, customs control forces have the competence to apply professional customs control measures under the Government's Decree No. 08/2015/NĐ-CP of 21 January 2015 and Decree No. 59/2018/NĐ-CP of 20 April 2018 amending and supplementing a number of articles of Decree No. 08/2015/NĐ-CP of 21 January 2015 detailing and providing measures for implementation of the Law on Customs regarding customs procedures, inspection, supervision and control, in order to detect, investigate, seize and handle goods infringing intellectual property rights and counterfeit goods under law.”

13. To amend and supplement a number of clauses of Article 16

a) Clause 2 is amended and supplemented as follows:

“2. When receiving or detecting information on counterfeit goods or goods infringing intellectual property rights, assess the reliability of the information on the basis of the collection method and the source of the information collected. Where there are signs of violation, issue a search decision or coordinate with the Customs Sub-Department where customs procedures are carried out or where the goods are kept to carry out inspection as prescribed. Based on the relevant provisions of law and the results of physical inspection of the goods, if there are sufficient grounds to determine the violation, issue a decision on temporary detention as prescribed.”

b) Clause 3 is amended and supplemented as follows:

“3. Conduct appraisal, take statements, and verify, collect and consolidate evidence in order to clearly determine the violation and the role and position of each organisation and individual; the value of the infringing goods; objective and subjective factors, motives and purposes, causes, consequences, and aggravating and mitigating circumstances. On the basis of the evidence collected, classify direct evidence, indirect evidence, related documents, material evidence and exhibits, and determine the evidence for administrative or criminal handling. Where all 04 elements constituting a crime are present, seek the opinion of the People's Procuracy to transfer the case to the investigation agency of the same level for prosecution as prescribed.”

c) Clause 4 is amended and supplemented as follows:

“4. Where there are grounds to determine that the goods violate, apply, or coordinate with the Customs Sub-Department where customs procedures are carried out or where the goods are kept to apply, preventive measures under the law on handling of administrative violations, or transfer the case, if it falls outside their competence, to the competent authority for handling. Where there are no grounds to determine that the goods violate, transfer the dossier to the Customs Sub-Department where customs procedures are carried out to continue the clearance procedures for the consignment under this Circular.”

14. Forms are amended and supplemented as follows:

To amend Forms No. 01-SHTT, 02-SHTT, 03-SHTT, 04-SHTT, 05-SHTT and 06-SHTT issued together with the Minister of Finance's Circular No. 13/2015/TT-BTC of 30 January 2015 into Forms No. 01-ĐĐN/SHTT/2020, 02-ĐTD/SHTT/2020, 03-QĐTD/SHTT/2020, 04-GHTD/SHTT/2020, 05-TT/SHTT/2020 and 06-TBTD/SHTT/2020 in the Appendix issued together with this Circular.

Article 2. Effect

1. This Circular takes effect on 20 April 2020.

2. The competent customs authority carries out inspection, supervision and suspension of customs procedures for exported and imported goods upon requests for the protection of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights ... [the source text is incomplete at this point] ... customs authorities, customs declarants and taxpayers shall report, give feedback and make specific proposals to the Ministry of Finance (the General Department of Customs) for consideration and guidance on implementation.

3. Where the relevant documents referred to in this Circular are amended, supplemented or replaced during implementation, the newly amending, supplementing or replacing documents shall apply./.

APPENDIX

(Issued together with the Minister of Finance's Circular No. 13/2020/TT-BTC of 06 March 2020)