Decree No. 99/2013/ND-CP

DECREE

PROVIDING FOR PENALTIES FOR ADMINISTRATIVE VIOLATIONS IN THE FIELD OF INDUSTRIAL PROPERTY

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

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

Pursuant to the Law on Intellectual Property dated 29 November 2005; the Law amending and supplementing a number of articles of the Law on Intellectual Property dated 19 June 2009 (hereinafter collectively referred to as the Law on Intellectual Property);

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

Pursuant to the Law on Competition dated 03 December 2004;

At the request of the Minister of Science and Technology,

The Government hereby promulgates the Decree providing for penalties for administrative violations in the field of industrial property.

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides for violations, penalty forms, fine levels and remedial measures; procedures for submitting applications requesting handling of violations; competence and procedures for settling applications requesting handling of violations; and competence to impose penalties and to enforce decisions imposing penalties for administrative violations in the field of industrial property.

Article 2. Provisions on maximum fine levels and penalty competence for individuals and organisations

1. The fine levels for the acts specified in Chapter II of this Decree are fine levels for individuals. The maximum fine level for individuals is VND 250,000,000.

For the same administrative violation, the fine level for an organisation is 02 times the fine level for an individual. The maximum fine level for organisations is VND 500,000,000.

2. The competence to impose administrative penalties of the persons specified in Articles 16 to 21 of this Decree is the competence applicable to one administrative violation committed by an individual. In the case of fines, the penalty competence for an organisation is 02 times that for an individual.

Article 3. Penalty forms and remedial measures

1. For each administrative violation in the field of industrial property, the violating organisation or individual shall be subject to one of the principal penalty forms: a warning or a fine.

2. Depending on the nature and seriousness of the violation, the violating organisation or individual may also be subject to one or more of the following additional penalty forms:

a) Confiscation of exhibits and means of administrative violation, including goods counterfeiting trademarks or geographical indications; raw materials, materials and means mainly used to produce or trade in goods counterfeiting trademarks or geographical indications;

b) Revocation of the right to use the practising certificate for industrial property representation services; the appraiser card; or the certificate of an organisation eligible for appraisal practice, for 01 to 03 months from the date the penalty decision takes effect;

c) Suspension of the production or trading of violating goods or services for 01 to 03 months from the date the penalty decision takes effect.

3. In addition to the principal and additional penalty forms, the violating organisation or individual may also be compelled to apply one or more of the following remedial measures:

a) Compel the removal of the violating element from the goods and business means and the destruction of the violating element; compel the change of domain name information or the return of the domain name; compel the change of the enterprise name or the removal of the violating element from the enterprise name;

b) Compel the putting to non-commercial use of goods counterfeiting trademarks or geographical indications, and of raw materials, materials and means mainly used to produce or trade in goods counterfeiting trademarks or geographical indications, after the violating element has been removed from the goods, provided that this does not affect the ability of the industrial property right holder to exploit the right;

c) Compel the removal from the territory of Vietnam of transit goods infringing industrial property rights, or compel the re-export of goods counterfeiting trademarks or geographical indications, and of imported means, raw materials and materials mainly used to produce or trade in goods counterfeiting trademarks or geographical indications, after the violating element has been removed from the goods;

d) Compel the destruction of goods counterfeiting trademarks or geographical indications; raw materials, materials and means mainly used to produce or trade in goods counterfeiting trademarks or geographical indications; exhibits and means of violation if the violating element attached to them cannot be removed; violating goods harmful to human health, livestock, crops and the environment; stamps, labels and articles bearing counterfeit trademarks or geographical indications; stamps, labels, packaging and other articles bearing violating elements; and certificates of protection, certificates or other documents that have been altered, erased or forged;

dd) Compel the amendment or supplementation of industrial property indications;

e) Compel public rectification for acts of wrongly indicating industrial property rights;

g) Compel the recovery of exhibits and means of violation that have been dispersed;

h) Compel the return of illegal profits earned from committing the administrative violation, or compel the payment of an amount equal to the value of the exhibits and means of administrative violation that have been sold, dispersed or destroyed contrary to law.

Article 4. Determination of the value of violating goods and services

1. The value of goods and services infringing industrial property rights, as a basis for determining the fine bracket and penalty competence, is determined on one of the following bases, in the order of priority prescribed in Clause 2, Article 60 of the Law on Handling of Administrative Violations:

a) The listed price, or the price stated in the contract, sales invoice or import declaration;

b) The price announced by the local finance agency; where no price is announced, the local market price at the time the administrative violation occurred;

c) The cost price of the violating goods, if they have not yet been sold.

2. For exhibits that are goods counterfeiting trademarks under Clause 2, Article 213 of the Law on Intellectual Property, the value of those goods is determined in the same way as the value of goods infringing industrial property rights under Clause 1 of this Article.

3. Where the bases in Clause 1 of this Article cannot be applied to determine the value of exhibits that are violating goods or services, as a basis for determining the fine bracket and penalty competence, the competent person handling the case may issue a decision to temporarily detain the exhibits and establish a Valuation Council under Clause 3, Article 60 of the Law on Handling of Administrative Violations.

Chapter 2.

ADMINISTRATIVE VIOLATIONS, PENALTY FORMS AND REMEDIAL MEASURES

SECTION 1. VIOLATIONS OF REGULATIONS ON MANAGEMENT OF INDUSTRIAL PROPERTY ACTIVITIES

Article 5. Violations of regulations on procedures for establishing, exercising and protecting industrial property rights

1. A fine of VND 3,000,000 to VND 5,000,000 shall be imposed for the act of altering or erasing, and thereby falsifying, the contents of a certificate of protection or of documents proving industrial property rights.

2. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for the act of providing false information or evidence in the course of carrying out one of the following procedures:

a) Procedures for establishing, recognising, certifying, amending, maintaining, extending, or requesting termination or cancellation of the validity of a certificate of protection of industrial property rights;

b) Requesting a competent state agency to issue a decision on compulsory transfer of the right to use an invention.

3. A fine of VND 15,000,000 to VND 20,000,000 shall be imposed for the act of forging papers in order to commit one of the violations specified in Clause 2 of this Article.

4. Remedial measures:

Compel the destruction of forged papers and documents for the violation specified in Clause 3 of this Article.

Article 6. Violations of regulations on indications of protection of industrial property rights

1. A warning or a fine of VND 500,000 to VND 1,000,000 shall be imposed for one of the following acts:

a) Wrongly indicating the subject or element protected by industrial property rights, the industrial property right holder, or the author of an invention, industrial design or layout design;

b) Wrongly indicating the legal status or scope of protection of industrial property rights;

c) Wrongly indicating, or failing to indicate, information on goods produced under a contract for the use of an industrial property object.

2. Remedial measures:

a) Compel the removal of the violating element from the goods and business means for the violation specified in Clause 1 of this Article;

b) Compel public rectification for the violation specified in Points a and b, Clause 1 of this Article;

c) Compel the amendment or supplementation of indications for the violation specified in Point c, Clause 1 of this Article.

Article 7. Violations of regulations on industrial property representation

1. A fine of VND 2,000,000 to VND 5,000,000 shall be imposed for one of the following acts:

a) Failing to notify in writing the competent state agency for establishing and protecting industrial property rights of a change in the name, address or legal status of an industrial property representative, or of a change related to the parties authorising and authorised to provide industrial property representation;

b) Failing to notify, or notifying untruthfully, the items and levels of fees and charges for industrial property representation services at the request of a competent agency;

c) Failing to carry out the procedure for deleting one's name from the National Register of Industrial Property Representatives upon ceasing to work at an industrial property representation organisation;

d) Failing to redo the procedure for recording in the National Register of Industrial Property Representatives upon working at another industrial property representation organisation.

2. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for one of the following acts:

a) Simultaneously representing parties in a dispute over industrial property rights;

b) Withdrawing an application for a certificate of protection, declaring a waiver of protection, withdrawing a complaint, or performing other acts in establishing industrial property rights without the permission of the party authorising the representation;

c) Failing to notify or provide to the party authorising the representation the contents of requests of competent state agencies for establishment, dispute settlement and handling of violations of industrial property;

d) Failing, without a legitimate reason, to hand over certificates of protection, documents proving industrial property rights, certificates and other decisions to the party authorising the representation within the time limit prescribed by law;

dd) Failing, without a legitimate reason, to comply with or reply to the contents of requests of competent state agencies for establishment, dispute settlement and handling of violations of industrial property;

e) Altering or falsifying the contents of the practising certificate for industrial property representation services;

g) Deliberately giving wrong advice or notice on the provisions of law on industrial property or information on industrial property activities;

h) Deliberately obstructing the establishment, exercise and protection of industrial property rights, causing damage to persons with related rights and interests;

i) Abandoning industrial property representation services without lawfully handing over unfinished representation work to another industrial property representation service organisation.

3. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed for one of the following acts:

a) Providing industrial property representation services without meeting the practice conditions under law;

b) Forging papers or documents or providing untruthful information to a competent state agency in the course of registering for the industrial property representation professional examination, requesting a practising certificate for industrial property representation services, or requesting the recording of an industrial property representation service organisation.

4. A fine of VND 20,000,000 to VND 40,000,000 shall be imposed for one of the following acts:

a) Disclosing information not yet permitted to be published by a competent state agency, related to the receipt, examination and handling of applications for registration, complaints and requests for handling of industrial property violations;

b) Committing a serious violation while practising representation, causing damage to the interests of the State or society.

5. Additional penalty form:

Revocation of the right to use the practising certificate for industrial property representation services for 01 to 03 months from the date the penalty decision takes effect, for the violation specified in Clause 4 of this Article.

6. Remedial measures:

Compel the destruction of forged papers and documents for the violation specified in Point b, Clause 3 of this Article.

Article 8. Violations of regulations on industrial property appraisal

1. A warning or a fine of VND 500,000 to VND 1,000,000 shall be imposed for one of the following acts:

a) Violating regulations on the order, procedures and time limit for appraisal;

b) Failing, without a legitimate reason, to appear upon a summons of the agency requesting the appraisal, or failing to explain the appraisal conclusion upon the request of the agency requesting the appraisal.

2. A fine of VND 2,000,000 to VND 5,000,000 shall be imposed for the act of altering or falsifying the contents of the appraiser card or the certificate of an organisation eligible to conduct industrial property appraisal.

3. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for one of the following acts:

a) Conducting industrial property appraisal without meeting the practice conditions under law;

b) Disclosing secret information learned in the course of appraisal without the permission of the parties concerned;

c) Failing to prepare an appraisal dossier, or failing to preserve objects and documents related to the appraised case;

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

4. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed for one of the following acts:

a) Abusing appraiser status and appraisal activities for profit;

b) Deliberately giving an untruthful appraisal conclusion;

c) Arbitrarily altering, erasing or otherwise falsifying the appraisal document;

d) Forging or using forged papers, or providing untruthful information to a competent state agency in the course of registering for the industrial property appraisal professional examination, requesting an industrial property appraiser card, or requesting the recording of an industrial property appraisal organisation;

dd) Conducting appraisal in a case where appraisal must be refused under law.

5. Additional penalty form:

Revocation of the right to use the appraiser card or the certificate of an organisation eligible to conduct industrial property appraisal for 01 to 03 months for the violation specified in Points a and b, Clause 4 of this Article.

6. Remedial measures:

a) Compel the destruction of altered, falsified or forged documents for the violation specified in Clause 2 and Points c and d, Clause 4 of this Article;

b) Compel the return of illegal profits earned from committing the violation specified in Point a, Clause 4 of this Article.

Article 9. Violations of regulations on sealing and temporary detention of exhibits and means of violation in the course of inspection and examination

1. A fine of VND 2,000,000 to VND 5,000,000 shall be imposed for the act of removing or breaking the seal of exhibits and means of administrative violation in industrial property that are sealed or temporarily detained.

2. A fine of VND 5,000,000 to VND 10,000,000 shall be imposed for the act of changing the quantity or kind of exhibits and means of administrative violation in industrial property that are sealed or temporarily detained.

3. A fine of VND 15,000,000 to VND 30,000,000 shall be imposed for the act of selling, dispersing or destroying exhibits and means of administrative violation in industrial property that are sealed or temporarily detained.

4. Remedial measures:

Compel the recovery of exhibits and means of violation that have been dispersed, or compel the payment of an amount equal to the value of the exhibits and means of violation that have been sold, dispersed or destroyed, for the violation specified in Clause 3 of this Article.

SECTION 2. INFRINGEMENT OF RIGHTS AND UNFAIR COMPETITION IN THE FIELD OF INDUSTRIAL PROPERTY

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

1. A warning or a fine of VND 500,000 to VND 2,000,000 shall be imposed for one of the following acts committed for business purposes where the value of the violating goods is up to VND 3,000,000:

a) Selling; offering for sale; transporting, including in transit; storing; or displaying for sale products infringing rights to inventions, utility solutions or layout designs, or products produced by a process infringing rights to inventions or utility solutions;

b) Exploiting the use of products infringing rights to inventions or utility solutions, or products produced by a process infringing rights to inventions or utility solutions;

c) Ordering, assigning or hiring another person to commit the acts specified in Points a and b of this Clause.

2. A fine of VND 2,000,000 to VND 4,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 3,000,000 up to VND 5,000,000.

3. A fine of VND 4,000,000 to VND 8,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 5,000,000 up to VND 10,000,000.

4. A fine of VND 8,000,000 to VND 15,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 10,000,000 up to VND 20,000,000.

5. A fine of VND 15,000,000 to VND 25,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 20,000,000 up to VND 40,000,000.

6. A fine of VND 25,000,000 to VND 40,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 40,000,000 up to VND 70,000,000.

7. A fine of VND 40,000,000 to VND 60,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 70,000,000 up to VND 100,000,000.

8. A fine of VND 60,000,000 to VND 80,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 100,000,000 up to VND 200,000,000.

9. A fine of VND 80,000,000 to VND 110,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 200,000,000 up to VND 300,000,000.

10. A fine of VND 110,000,000 to VND 150,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 300,000,000 up to VND 400,000,000.

11. A fine of VND 150,000,000 to VND 200,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 400,000,000 up to VND 500,000,000.

12. A fine of VND 200,000,000 to VND 250,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 500,000,000.

13. A fine of 1.2 times the fine levels prescribed in Clauses 1 to 12 of this Article, but not exceeding VND 250,000,000, shall be imposed for one of the following acts committed for business purposes:

a) Production, including: designing, constructing, manufacturing, processing, assembling, preparing and packaging products and goods infringing rights to inventions, utility solutions or layout designs;

b) Applying a process infringing rights to inventions or utility solutions;

c) Importing products infringing rights to inventions, utility solutions or layout designs, or products produced by a process infringing rights to inventions or utility solutions;

d) Ordering, assigning or hiring another person to commit the acts specified in Points a, b and c of this Clause.

14. Additional penalty form:

Suspension of the production or trading of violating goods for 01 to 03 months for the violations specified in Clauses 1 to 13 of this Article.

15. Remedial measures:

a) Compel the removal and destruction of the violating element for the violations specified in Clauses 1 to 13 of this Article;

b) Compel the destruction of exhibits and means of violation if the violating element cannot be removed, for the violations specified in Clauses 1 to 13 of this Article;

c) Compel the removal from the territory of Vietnam of transit goods infringing industrial property rights for the violations specified in Clauses 1 to 12 of this Article;

d) Compel the return of illegal profits earned from committing the violations specified in Clauses 1 to 13 of this Article.

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

1. A warning or a fine of VND 500,000 to VND 2,000,000 shall be imposed for one of the following acts committed for business purposes where the value of the violating goods and services is up to VND 3,000,000:

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

b) Ordering, assigning or hiring another person to commit the act specified in Point a of this Clause.

2. A fine of VND 2,000,000 to VND 4,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 3,000,000 up to VND 5,000,000.

3. A fine of VND 4,000,000 to VND 8,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 5,000,000 up to VND 10,000,000.

4. A fine of VND 8,000,000 to VND 15,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 10,000,000 up to VND 20,000,000.

5. A fine of VND 15,000,000 to VND 25,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 20,000,000 up to VND 40,000,000.

6. A fine of VND 25,000,000 to VND 40,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 40,000,000 up to VND 70,000,000.

7. A fine of VND 40,000,000 to VND 60,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 70,000,000 up to VND 100,000,000.

8. A fine of VND 60,000,000 to VND 80,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 100,000,000 up to VND 200,000,000.

9. A fine of VND 80,000,000 to VND 110,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 200,000,000 up to VND 300,000,000.

10. A fine of VND 110,000,000 to VND 150,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 300,000,000 up to VND 400,000,000.

11. A fine of VND 150,000,000 to VND 200,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 400,000,000 up to VND 500,000,000.

12. A fine of VND 200,000,000 to VND 250,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 500,000,000.

13. A fine of 1.2 times the fine levels prescribed in Clauses 1 to 12 of this Article, but not exceeding VND 250,000,000, shall be imposed for one of the following acts:

a) Designing, manufacturing, processing, assembling, preparing and packaging goods bearing signs infringing rights to trademarks, trade names, geographical indications or industrial designs;

b) Printing, pasting, attaching, moulding, stamping or otherwise applying to goods stamps, labels and other articles bearing signs infringing rights to trademarks, geographical indications, industrial designs or trade names;

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

d) Ordering, assigning or hiring another person to commit the acts specified in Points a, b and c of this Clause.

14. A fine of VND 10,000,000 to VND 30,000,000 shall be imposed for the act of infringing rights to trademarks, geographical indications, trade names or industrial designs specified in Clauses 1 and 13 of this Article where there is no basis for determining the value of the violating goods and services.

15. A fine of VND 10,000,000 to VND 20,000,000 shall be imposed for the act of using signs infringing rights to trademarks, geographical indications or trade names on signboards, business transaction papers, business means, service means or goods packaging.

16. Additional penalty form:

Suspension of the trading of violating goods and services for 01 to 03 months for the violations specified in Clauses 1 to 15 of this Article.

17. Remedial measures:

a) Compel the removal and destruction of the violating element for the violations specified in Clauses 1 to 15 of this Article;

b) Compel the destruction of exhibits and means of violation if the violating element cannot be removed, and of violating stamps, labels, packaging and articles, for the violations specified in Clauses 1 to 15 of this Article;

c) Compel the removal from the territory of Vietnam of transit goods infringing industrial property rights for the violations specified in Clauses 1 to 12 of this Article;

d) Compel the change of the enterprise name or the removal of the violating element from the enterprise name for the violations specified in Clauses 1 to 15 of this Article;

dd) Compel the return of illegal profits earned from committing the violations specified in Clauses 1 to 15 of this Article.

Article 12. Production, import, trading, transport and storage for sale of goods counterfeiting trademarks and geographical indications

1. A fine of VND 4,000,000 to VND 8,000,000 shall be imposed for one of the following acts where the value of the violating goods is up to VND 5,000,000:

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

b) Ordering, assigning or hiring another person to commit the act specified in Point a of this Clause.

2. A fine of VND 8,000,000 to VND 12,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 5,000,000 up to VND 10,000,000.

3. A fine of VND 12,000,000 to VND 20,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 10,000,000 up to VND 20,000,000.

4. A fine of VND 20,000,000 to VND 35,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 20,000,000 up to VND 40,000,000.

5. A fine of VND 35,000,000 to VND 55,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 40,000,000 up to VND 70,000,000.

6. A fine of VND 55,000,000 to VND 85,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 70,000,000 up to VND 100,000,000.

7. A fine of VND 85,000,000 to VND 120,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 100,000,000 up to VND 200,000,000.

8. A fine of VND 120,000,000 to VND 180,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 200,000,000 up to VND 300,000,000.

9. A fine of VND 180,000,000 to VND 250,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 300,000,000.

10. A fine of 1.2 times the fine levels prescribed in Clauses 1 to 9 of this Article, but not exceeding VND 250,000,000, shall be imposed for one of the following acts:

a) Manufacturing, processing, assembling, preparing and packaging goods bearing counterfeit trademarks or geographical indications;

b) Printing, pasting, attaching, moulding, stamping or otherwise applying to goods stamps, labels and other articles bearing counterfeit trademarks or geographical indications;

c) Importing goods bearing counterfeit trademarks or geographical indications;

d) Ordering, assigning or hiring another person to commit the acts specified in Points a, b and c of this Clause.

11. A fine of VND 10,000,000 to VND 30,000,000 shall be imposed for the violations specified in Clauses 1 and 10 of this Article where there is no basis for determining the value of the violating goods.

12. Additional penalty forms:

a) Confiscation of exhibits and means of violation for the violations specified in Clauses 1 to 11 of this Article;

b) Suspension of the trading of violating goods and services for 01 to 03 months for the violations specified in Clauses 1 to 11 of this Article.

13. Remedial measures:

a) Compel the destruction, distribution, or putting to non-commercial use of goods counterfeiting trademarks or geographical indications, and of raw materials, materials and means mainly used to produce or trade in goods counterfeiting trademarks or geographical indications, provided that this does not affect the ability of the industrial property right holder to exploit the right, for the violations specified in Clauses 1 to 11 of this Article;

b) Compel the re-export of goods counterfeiting trademarks or geographical indications, and of imported means, raw materials and materials mainly used to produce or trade in goods counterfeiting trademarks or geographical indications, after the violating element has been removed from the goods, for the violations specified in Clauses 1 to 10 of this Article;

c) Compel the return of illegal profits earned from committing the violations specified in Clauses 1 to 11 of this Article.

Article 13. Production, import, trading, transport and storage for sale of stamps, labels and articles bearing counterfeit trademarks or geographical indications

1. A warning or a fine of VND 500,000 to VND 1,000,000 shall be imposed for one of the following acts where the stamps, labels and articles bearing counterfeit trademarks or geographical indications number up to 500 pieces, sheets or equivalent units (hereinafter referred to as units):

a) Selling; transporting, including in transit; supplying; storing; or displaying for sale stamps, labels, packaging and articles bearing counterfeit trademarks or geographical indications;

b) Ordering, assigning or hiring another person to commit the act specified in Point a of this Clause.

2. A fine of VND 1,000,000 to VND 2,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the quantity of stamps, labels and articles bearing counterfeit trademarks or geographical indications is over 500 units up to 1,000 units.

3. A fine of VND 2,000,000 to VND 4,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the quantity of stamps, labels and articles bearing counterfeit trademarks or geographical indications is over 1,000 units up to 2,000 units.

4. A fine of VND 4,000,000 to VND 8,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the quantity of stamps, labels and articles bearing counterfeit trademarks or geographical indications is over 2,000 units up to 5,000 units.

5. A fine of VND 8,000,000 to VND 15,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the quantity of stamps, labels and articles bearing counterfeit trademarks or geographical indications is over 5,000 units up to 10,000 units.

6. A fine of VND 15,000,000 to VND 25,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the quantity of stamps, labels and articles bearing counterfeit trademarks or geographical indications is over 10,000 units.

7. A fine of 1.2 times the fine levels prescribed in Clauses 1 to 6 of this Article shall be imposed for one of the following acts:

a) Production, including designing and printing; or importing stamps, labels, packaging and other articles bearing counterfeit trademarks or geographical indications;

b) Ordering, assigning or hiring another person to commit the act specified in Point a of this Clause.

8. Remedial measures:

a) Compel the destruction of stamps, labels and articles bearing counterfeit trademarks or geographical indications for the violations specified in Clauses 1 to 7 of this Article;

b) Compel the return of illegal profits earned from committing the violations specified in Clauses 1 to 7 of this Article.

Article 14. Unfair competition in the field of industrial property

1. A warning or a fine of VND 500,000 to VND 2,000,000 shall be imposed for one of the following acts where the value of the violating goods and services is up to VND 3,000,000:

a) Selling; transporting, including in transit; or storing for sale goods and services to which a commercial indication is attached that causes confusion about the business entity, business activity or commercial source of the goods or services, or about the origin, method of production, features, quality, quantity or other characteristics of the goods or services, or about the conditions for supplying the goods or services;

b) Ordering, assigning or hiring another person to commit the act specified in Point a of this Clause.

2. A fine of VND 2,000,000 to VND 4,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 3,000,000 up to VND 5,000,000.

3. A fine of VND 4,000,000 to VND 8,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 5,000,000 up to VND 10,000,000.

4. A fine of VND 8,000,000 to VND 15,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 10,000,000 up to VND 20,000,000.

5. A fine of VND 15,000,000 to VND 25,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 20,000,000 up to VND 40,000,000.

6. A fine of VND 25,000,000 to VND 40,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 40,000,000 up to VND 70,000,000.

7. A fine of VND 40,000,000 to VND 60,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 70,000,000 up to VND 100,000,000.

8. A fine of VND 60,000,000 to VND 80,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 100,000,000 up to VND 200,000,000.

9. A fine of VND 80,000,000 to VND 110,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 200,000,000 up to VND 300,000,000.

10. A fine of VND 110,000,000 to VND 150,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 300,000,000 up to VND 400,000,000.

11. A fine of VND 150,000,000 to VND 200,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods and services is over VND 400,000,000 up to VND 500,000,000.

12. A fine of VND 200,000,000 to VND 250,000,000 shall be imposed for one of the acts specified in Clause 1 of this Article where the value of the violating goods is over VND 500,000,000.

13. A fine of 1.2 times the fine levels prescribed in Clauses 1 to 12 of this Article, but not exceeding VND 250,000,000, shall be imposed for one of the following acts:

a) Attaching to goods or services a commercial indication that causes confusion about the business entity, business activity or commercial source of the goods or services, or about the origin, method of production, features, quality, quantity or other characteristics of the goods or services, or about the conditions for supplying the goods or services;

b) Producing or importing goods bearing a commercial indication causing confusion as specified in Point a of this Clause;

c) Ordering, assigning or hiring another person to commit the acts specified in Points a and b of this Clause.

14. A fine of VND 10,000,000 to VND 30,000,000 shall be imposed for the act of using a commercial indication causing confusion as specified in Clauses 1 and 13 of this Article where there is no basis for determining the value of the violating goods and services.

15. A fine of VND 5,000,000 to VND 15,000,000 shall be imposed for one of the following acts:

a) Infringing rights to business secrets under Article 127 of the Law on Intellectual Property;

b) Using a commercial indication on transaction papers, business means (including service means), signboards or goods packaging that causes confusion about the business entity, business activity or commercial source of the goods or services, or about the origin, method of production, features, quality, quantity or other characteristics of the goods or services, or about the conditions for supplying the goods or services.

16. A fine of VND 5,000,000 to VND 20,000,000 shall be imposed for one of the following acts:

a) Registering, holding the right to use, or using a domain name that is identical or similar, causing confusion, with a protected trademark, geographical indication or trade name of another person in order to occupy the domain name, to take advantage of, or to damage the reputation and prestige of, the corresponding trademark, trade name or geographical indication;

b) Using a trademark protected in a country that is a member of an international treaty, to which Vietnam is also a party, prohibiting the representative or agent of the trademark owner from using that trademark, if the user is the representative or agent of the trademark owner and the use is without the consent of the trademark owner and without a legitimate reason.

17. Additional penalty form:

Suspension of the trading of violating goods and services, including e-commerce activities, for 01 to 03 months for the violations specified in Clauses 1 to 16 of this Article.

18. Remedial measures:

a) Compel the removal and destruction of the violating element; compel the destruction of violating goods if the violating element cannot be removed, for the violations specified in Clauses 1 to 16 of this Article;

b) Compel the removal of information on violating goods and services from business means, service means and websites for the violations specified in Clauses 15 and 16 of this Article;

c) Compel the change of the enterprise name or the removal of the violating element from the enterprise name for the violations specified in Clauses 1 to 15 of this Article; compel the change of domain name information or the return of the domain name for the violation specified in Point a, Clause 16 of this Article;

d) Compel the return of illegal profits earned from committing the violations specified in Clauses 1 to 16 of this Article.

Chapter 3.

COMPETENCE TO IMPOSE ADMINISTRATIVE PENALTIES

Article 15. Penalty competence

1. Science and Technology Inspectorates are competent to penalise the violations specified in Chapter II of this Decree.

2. Information and Communications Inspectorates are competent to penalise the violation specified in Point a, Clause 16, Article 14 of this Decree.

3. Market management forces are competent to penalise the following violations:

a) Violations specified in Articles 12 and 13 of this Decree in the production, trading, transport and storage of goods in the domestic market;

b) Violations specified in Articles 6, 9, 11 and 14 of this Decree in the trading and transport of goods in the domestic market. In handling the violation specified in Point b of this Clause, if the establishment producing that kind of goods is identified, market management forces are competent to continue handling the violation at the production establishment.

4. Customs is competent to penalise the violations specified in Articles 6, 9, 10, 11, 12, 13 and 14 of this Decree in transit and import of goods.

5. The police are competent to detect, verify and collect information and evidence of acts infringing industrial property rights and provide them to the agencies handling violations specified in Clauses 1, 2, 3 and 4 of this Article; and are competent to penalise the violations specified in Articles 9, 12 and 13 of this Decree.

6. People's Committees at the provincial and district levels are competent to penalise violations in the field of industrial property occurring in their localities, in accordance with the principles for determining and delineating competence to impose administrative penalties prescribed in Articles 38 and 52 of the Law on Handling of Administrative Violations.

Article 16. Penalty competence of Science and Technology Inspectorates

1. Inspectors of the Inspectorate of the Ministry of Science and Technology and of the Inspectorates of Departments of Science and Technology, while performing official duties, have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 500,000;

c) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

d) Apply the remedial measure prescribed in Point d, Clause 3, Article 3 of this Decree.

2. Chief Inspectors of Departments of Science and Technology and Heads of specialised inspection teams of Departments of Science and Technology have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 50,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measures prescribed in Clause 3, Article 3 of this Decree.

3. The Chief Inspector of the Ministry of Science and Technology has the right to:

a) Impose a warning;

b) Impose a fine of up to VND 250,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation;

dd) Apply the remedial measures prescribed in Clause 3, Article 3 of this Decree.

4. Heads of specialised inspection teams of the Ministry of Science and Technology have the competence to:

a) Impose a warning;

b) Impose a fine of up to VND 175,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measures prescribed in Clause 3, Article 3 of this Decree.

Article 17. Penalty competence of Information and Communications Inspectorates

1. Inspectors of the Inspectorate of the Ministry of Information and Communications and of the Inspectorates of Departments of Information and Communications, while performing official duties, have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 500,000;

c) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

d) Apply the remedial measure prescribed in Point a, Clause 3, Article 3 of this Decree.

2. Chief Inspectors of Departments of Information and Communications and Heads of specialised inspection teams of Departments of Information and Communications have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 50,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measure prescribed in Point a, Clause 3, Article 3 of this Decree.

3. The Chief Inspector of the Ministry of Information and Communications has the right to:

a) Impose a warning;

b) Impose a fine of up to VND 250,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation;

dd) Apply the remedial measure prescribed in Point a, Clause 3, Article 3 of this Decree.

4. Heads of specialised inspection teams of the Ministry of Information and Communications have the competence to:

a) Impose a warning;

b) Impose a fine of up to VND 175,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measure prescribed in Point a, Clause 3, Article 3 of this Decree.

Article 18. Penalty competence of market management forces

1. Heads of Market Management Teams have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 25,000,000;

c) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

d) Apply the remedial measures prescribed in Points a, b, d, dd, e, g and h, Clause 3, Article 3 of this Decree.

2. Heads of Market Management Sub-Departments of Departments of Industry and Trade, and Heads of the anti-smuggling and anti-counterfeiting divisions of the Market Management Department, have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 50,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measures prescribed in Clause 3, Article 3 of this Decree.

3. The Director General of the Market Management Department has the right to:

a) Impose a warning;

b) Impose a fine of up to VND 250,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation;

dd) Apply the remedial measures prescribed in Clause 3, Article 3 of this Decree.

Article 19. Penalty competence of Customs

1. Team Heads of Customs Sub-Departments and Team Heads of Post-Clearance Audit Sub-Departments have the right to:

a) Impose a warning;

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

2. Heads of Customs Sub-Departments, Heads of Post-Clearance Audit Sub-Departments, Heads of Control Teams of provincial, inter-provincial or centrally-run city Customs Departments (hereinafter collectively referred to as Customs Departments), Heads of Anti-Smuggling Control Teams, Heads of Customs Procedure Teams, Heads of Intellectual Property Protection Control Teams, and Heads of Sea Control Flotillas under the Anti-Smuggling Investigation Department of the General Department of Customs have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 25,000,000;

c) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

d) Apply the remedial measures prescribed in Points a, b, c, d, dd, g and h, Clause 3, Article 3 of this Decree.

3. The Director of the Anti-Smuggling Investigation Department, the Director of the Post-Clearance Audit Department under the General Department of Customs, and Directors of provincial, inter-provincial or centrally-run city Customs Departments have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 50,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measures prescribed in Points a, b, c, d, dd, g and h, Clause 3, Article 3 of this Decree.

4. The Director General of the General Department of Customs has the right to:

a) Impose a warning;

b) Impose a fine of up to VND 250,000,000;

c) Confiscate exhibits and means of administrative violation;

d) Apply the remedial measures prescribed in Points a, b, c, d, dd, g and h, Clause 3, Article 3 of this Decree.

Article 20. Penalty competence of the People's Public Security

1. Heads of Police Stations at border gates and export processing zones have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 2,500,000;

c) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

d) Apply the remedial measure prescribed in Point d, Clause 3, Article 3 of this Decree.

2. Heads of district-level Police and Heads of Criminal Police Divisions for Economic Management Order and Position-Related Crimes have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 25,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measures prescribed in Points b, d, dd and g, Clause 3, Article 3 of this Decree.

3. Directors of provincial-level Police have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 50,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measures prescribed in Points b, d, dd, g and h, Clause 3, Article 3 of this Decree.

4. The Director of the Criminal Police Department for Economic Management Order and Position-Related Crimes has the right to:

a) Impose a warning;

b) Impose a fine of up to VND 250,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation;

dd) Apply the remedial measures prescribed in Points b, d, dd, g and h, Clause 3, Article 3 of this Decree.

5. In addition to the persons specified in Clauses 1, 2, 3 and 4 of this Article, other competent persons of the People's Public Security forces who detect administrative violations in the field of industrial property within their competence and area of management have the right to impose penalties under Article 39 of the Law on Handling of Administrative Violations and this Decree.

Article 21. Penalty competence of Chairpersons of district-level People's Committees and Chairpersons of provincial-level People's Committees

1. Chairpersons of district-level People's Committees have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 50,000,000;

c) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

d) Confiscate exhibits and means of administrative violation of a value not exceeding the fine level prescribed in Point b of this Clause;

dd) Apply the remedial measures prescribed in Points b, d, dd, e, g and h, Clause 3, Article 3 of this Decree.

2. Chairpersons of provincial-level People's Committees have the right to:

a) Impose a warning;

b) Impose a fine of up to VND 250,000,000;

c) Confiscate exhibits and means of administrative violation;

d) Revoke the right to use licences or practising certificates for a limited period, or suspend the trading of violating goods and services for a limited period;

dd) Apply the remedial measures prescribed in Clause 3, Article 3 of this Decree.

Chapter 4.

HANDLING OF VIOLATIONS

Article 22. Right to request handling of violations and competence to proactively detect and handle violations

1. Industrial property right holders have the right to request handling of violations in the field of industrial property, including:

a) Industrial property right holders suffering damage from the violation, including organisations vested with the authority to manage geographical indications protected in Vietnam;

b) Persons with the right to use an industrial property object who suffer damage from the violation, if not restricted by the industrial property owner from requesting handling of violations.

When requesting handling of acts infringing industrial property rights specified in Point a, Clause 1, Article 211 of the Law on Intellectual Property and acts of unfair competition specified in Article 130 of the Law on Intellectual Property, the organisations and individuals specified in this Clause must clearly state the nature and seriousness of the violation in the application requesting handling of the violation and provide documents and evidence under Clause 2, Article 26 of this Decree.

2. Organisations and individuals that detect acts infringing industrial property rights that cause damage to consumers or society, or violations related to goods, stamps, labels and articles bearing counterfeit trademarks or geographical indications; and organisations and individuals that suffer or are likely to suffer damage from acts of unfair competition in the field of industrial property, have the right to notify and request the competent authority to conduct verification and penalty procedures.

Upon receiving notice from the organisations and individuals specified in this Clause, the competent violation-handling authority is responsible for checking and coordinating with the industrial property right holder to verify and handle the violation under Clause 3 of this Article.

3. The competent violation-handling authority is responsible for proactively checking, inspecting and detecting, and for coordinating with the industrial property right holder to verify and handle, violations related to the following subjects:

a) Goods, stamps, labels, packaging and other articles bearing counterfeit trademarks or geographical indications;

b) Violating goods and services related to foodstuffs, pharmaceuticals, cosmetics, animal feed, fertilisers, veterinary drugs, plant protection drugs, construction materials, means of transport, chemicals used in medicine, agriculture and the environment, and other items determined by the competent person according to periodic or extraordinary inspection and examination tasks.

Article 23. Authorisation to request handling of violations

1. The industrial property right holders specified in Clause 1, Article 22 of this Decree, if not directly submitting an application requesting handling of violations, may authorise the head of their representative office, branch or agent, or an industrial property representative in Vietnam, to carry out the procedures for requesting handling of violations prescribed in this Decree.

2. The authorisation must be made in writing in the form of a power of attorney or an authorisation contract.

The power of attorney of an organisation or individual in Vietnam must bear the signature of the legal representative of the authorising party and the seal of the authorising party, if it has a lawfully registered seal.

The power of attorney of a foreign organisation or individual must be certified by a notary public or local government or consulate, or in another form considered lawful under the law of the place where the power of attorney is made.

3. The power of attorney submitted together with the application requesting handling of violations must be the original. A power of attorney made in a foreign language must be submitted together with a Vietnamese translation certified by local government or bearing a commitment and confirmation by the industrial property representative that is the authorised party.

Where the power of attorney is a copy of the original power of attorney previously submitted in a dossier to the same violation-handling authority, it is also considered valid, provided that the applicant clearly states the number of the submitted dossier and that the referenced original power of attorney is still valid and matches the authorised contents.

4. A power of attorney that is valid in procedures for establishing rights under Article 107 of the Law on Intellectual Property and that clearly states authorisation contents including procedures for enforcing and protecting industrial property rights in Vietnam is also legally valid in procedures for requesting handling of violations under this Decree.

5. The authorisation period is determined by the period stated in the power of attorney. Where the power of attorney does not clearly state the period, the authorisation period is determined under Clause 3, Article 107 of the Law on Intellectual Property.

Article 24. Application requesting handling of violations

1. A request for handling of violations must be made in writing in the form of an application requesting handling of violations, clearly stating the date of the application, the name of the receiving agency or agencies, information on the organisation or individual requesting handling of the violation, the legal representative or authorised organisation or individual, the relevant industrial property object, the goods and services showing signs of violation, the name and address of the violating organisation or individual, and the handling measures requested; the signature of the legal representative of the organisation or individual requesting handling of the violation, or of the authorised organisation or individual, and the seal certifying the signature, if any; if the application has previously been sent to another agency, the name of that agency and the date of sending must be stated.

2. The application requesting handling of violations must be accompanied by documents proving the right to request handling of violations; documents describing, or photographs of, the violating act or goods and services; and the location of the violating act or goods and services.

The organisation or individual requesting handling of violations may provide other documents, specimens and evidence to support the competent authority in determining the violating act and violating goods and services.

Article 25. Receipt and consideration of applications requesting handling of violations

1. Upon receiving an application requesting handling of violations, the receiving agency is responsible for the following:

a) Determining the competence to handle the violation; if the request falls within the competence of another agency, guiding the applicant to submit the application to the competent agency;

b) Checking the documents and evidence enclosed with the application.

2. The application requesting handling of violations shall be considered as follows:

a) Within 10 working days from the date of receiving the application requesting handling of violations, the violation-handling agency is responsible for considering the validity of the application and the enclosed documents and evidence;

b) Where the documents and evidence provided by the applicant are incomplete, the violation-handling agency shall request the applicant to supplement the documents and evidence or provide an explanation within a maximum of 30 days from the date of the request;

c) The authority competent to accept the case may request the party against which handling of the violation is requested to provide information and evidence and give explanations; and may seek the professional opinion of the state agency for industrial property or request industrial property appraisal in order to clarify the circumstances of the case;

d) Within 30 days from the date of receiving a dossier that meets the requirements, the competent person shall notify the organisation or individual requesting handling of the violation of the expected time, procedures and handling measures, and of the requests for cooperation and support from the industrial property right holder in inspection, examination, verification and handling of the violation.

3. Rights and responsibilities of the party against which handling of the violation is requested:

a) In the course of handling the case, the party against which handling of the violation is requested may, on its own or at the request of the competent person, provide information, documents and evidence and give explanations where it disagrees with the party requesting handling of the violation, within 10 days from the date fixed in the notice of the competent person handling the violation case or from the date of making the inspection record or the administrative violation record. Where there is a legitimate reason, the party against which handling is requested may request the competent person in writing to extend the above period, but not beyond 30 days from the date fixed in the notice or from the date of making the inspection record or the administrative violation record;

b) The party against which handling of the violation is requested may authorise another organisation or individual under Article 23 of this Decree to provide the information, documents and evidence and give the explanations specified in Point a of this Clause;

c) To prove that its act does not infringe rights to an invention or utility solution that is a process, the party against which handling is requested has the obligation to prove that the product alleged to have been produced by a process infringing rights to the invention or utility solution was in fact not produced by the process protected as the invention or utility solution, in compliance with the corresponding conditions prescribed in Clause 4, Article 203 of the Law on Intellectual Property;

d) Where the party against which handling is requested fails to provide, or provides insufficient information, documents, evidence and explanations to prove that it does not violate, the competent person shall decide on handling the case based on inspection and examination results and on the information, documents and evidence provided by the organisation or individual requesting handling of the violation.

Article 26. Provision of evidence and information determining violations

1. The person requesting handling of a violation may use the service of requesting industrial property appraisal, may request the state agency for industrial property to provide professional opinions on determining the scope of protection and the violating element, and may proactively provide documents and evidence to prove the infringing act or clarify the circumstances of the case.

2. The competent violation-handling authority may request the person requesting handling of the violation to provide documents, evidence and explanations or clarify the circumstances of the case within a specified period; may request the industrial property right holder to provide information, documents and specimens in order to recognise signs of violation and to determine genuine goods, counterfeit goods, infringing goods, the source of supply or place of consumption of lawful goods, the basis for determining that goods were produced outside the scope of a licence to use an industrial property object, or that imported goods are not parallel imports.

3. The competent violation-handling authority may itself conduct checks, verification and evidence collection, determine the scope of protection of industrial property rights and determine violating acts under the law on intellectual property. Where necessary, it may request functional agencies to conduct verification and collect evidence of the violation, and request the state agency for industrial property to provide professional opinions or request industrial property appraisal in order to determine the scope of protection and the violating element.

4. The person competent to handle the violation may rely on a written commitment by the industrial property right holder confirming goods and services counterfeiting trademarks or geographical indications, a written professional opinion of the state agency for industrial property, or a written appraisal conclusion to determine the violating act, but shall bear legal responsibility for his or her conclusion on the violation and decision on handling the violation.

5. The competent violation-handling authority may provide information related to the place of production, consumption channels and source of supply of counterfeit goods and infringing goods, and the circumstances of the case, at the request of the industrial property right holder or of a person competent to settle disputes or penalise violations in other agencies and organisations, provided that providing such information and documents does not affect the effectiveness of handling the related case and is not a case of confidentiality under law.

6. The authority competent to handle the case has the right to request the party against which handling of the violation is requested and parties with related rights and interests in the violation case to provide information, documents and evidence proving their requests and arguments or rebutting the requests and arguments of other parties; and to request the party holding or controlling evidence and documents related to the violation case to produce such evidence and documents as a basis for settling the case.

7. The industrial property right holder, or its authorised representative, may request the competent violation-handling authority to allow participation in and support of inspection, examination, verification and evidence collection activities, determination of genuine goods, counterfeit goods and infringing goods, determination of the violating element on goods, articles, raw materials, materials and business means, and the measures for handling violating goods and services. The competent violation-handling authority shall decide on permitting participation at the request under this Clause, except where necessary to protect commercial secrets at the reasonable request of the party being handled.

Article 27. Handling of violation cases when disputes arise

1. Where a complaint, denunciation or dispute arises over the right to register, ownership, the right to request handling of violations, the conditions for protection or the scope of protection of the relevant industrial property right after the application requesting handling of the violation has been accepted, the authority competent to accept the case shall take the following handling measures:

a) Request the parties concerned to carry out procedures requesting settlement of the complaint, denunciation or dispute at the competent authority under the law on intellectual property;

b) Request the industrial property right holder to explain and commit, or request the state agency for industrial property to clarify, the legal status of the industrial property right that is the subject of the complaint, denunciation or dispute.

Within 30 working days from the date of receiving the explanation or commitment of the industrial property right holder or the reply of the state agency for industrial property, the authority competent to accept the case is responsible for replying to the person requesting handling of the violation on whether handling procedures will be carried out or handling of the violation refused.

2. Where an application requesting handling of a violation has been accepted but the parties to the case reach an agreement with one another and propose a settlement that conforms to the law on intellectual property and does not affect the rights and interests of third parties, consumers and society, the competent violation-handling authority shall record that settlement and stop handling the case.

Article 28. Refusal and suspension of handling of violations

1. The violation-handling agency shall refuse to handle a violation in the following cases:

a) The application requesting handling of the violation is submitted while there is a dispute over the related industrial property right;

b) The person requesting handling of the violation fails to meet the violation-handling agency's requirements for explanation and supplementation of evidence proving the status of industrial property right holder and proving the violation, as prescribed in Point b, Clause 2, Article 25 of this Decree;

c) The limitation period for imposing administrative penalties under Clause 1, Article 6 of the Law on Handling of Administrative Violations has expired;

d) The verification results of the violation-handling agency or the police agency show that there is no violation as described in the application requesting handling of the violation;

dd) There is a conclusion, decision or notice of a competent authority that there are insufficient grounds to carry out violation-handling procedures;

e) The act is not considered a violation under the law on intellectual property or is not subject to administrative penalties under this Decree.

2. The person accepting the application requesting handling of the violation shall suspend the violation-handling procedures in the following cases:

a) A complaint, denunciation or dispute arises after the application requesting handling of the violation has been accepted and the result of settlement by the competent authority must be awaited under Clause 1, Article 27 of this Decree;

b) There are not yet sufficient grounds to determine the act infringing industrial property rights after the application requesting handling of the violation has been accepted;

c) The applicant submits a written withdrawal of the request for handling of the violation;

d) The parties themselves reach an agreement to settle the case under Clause 2, Article 27 of this Decree.

3. Where the violation relates to the production or trading of goods counterfeiting trademarks or geographical indications, or packaging, stamps, labels and other articles bearing counterfeit trademarks or geographical indications, the person competent to impose penalties shall still carry out administrative penalty procedures for that violation, even after receiving the notice of withdrawal of the request for handling the violation specified in Point c, Clause 2 of this Article.

Article 29. Coordination in handling violations

1. Request for coordination in handling violations:

a) Where a violation case has complex circumstances or involves many different organisations and individuals, the authority competent to accept the application requesting handling of the violation may request the competent authority and the state agency for industrial property in the relevant locality to coordinate in handling the violation. The request for coordination must contain a summary of the case, propose the contents requiring coordination, and fix a deadline of no more than 15 days for the requested agency to reply;

b) The agency receiving the request for coordination in handling violations is responsible for replying within the fixed time limit; where it refuses to coordinate, it must clearly state the reasons.

2. Use of the results of consideration and handling of applications requesting handling of violations by other agencies:

a) The violation-handling agency has the right to use the results of determination of the violating act and of the value of violating goods made by another competent authority, if any, in order to ensure uniformity in handling measures and fine levels for identical or similar violations or violations relating to the same industrial property object of the same industrial property right holder;

b) Where competent authorities hold different opinions, conclusions or decisions on determining the violating act or on the handling measures and level, the person competent to impose penalties may establish an advisory council of reputable experts in the relevant professional field to help the competent person reach a conclusion on the violating act.

Article 30. Penalty procedures

1. Upon detecting an administrative violation in the field of industrial property, the persons competent to impose penalties specified in Articles 16 to 21 of this Decree, and civil servants and public employees performing official duties, are competent to make an administrative violation record.

2. The order and procedures for imposing administrative penalties comply with Section 1, Chapter III of the Law on Handling of Administrative Violations.

Article 31. Enforcement of penalty decisions and coercion of enforcement of penalty decisions

1. The enforcement of penalty decisions and the coercion of enforcement of administrative penalty decisions comply with the Law on Handling of Administrative Violations.

2. For an administrative penalty decision applying the remedial measure of compelling the change of, or removal of the violating element from, the enterprise name, the violating organisation or individual is responsible for carrying out the procedures for changing the enterprise name or removing the violating element from the enterprise name at the business registration agency within 60 days from the date the administrative penalty decision takes effect.

After the above period, if the violating organisation or individual does not carry out the procedures for changing the enterprise name or removing the violating element from the enterprise name, the agency that issued the administrative penalty decision shall request the business registration agency to revoke the Enterprise Registration Certificate. The business registration agency is responsible for revoking the Enterprise Registration Certificate under law.

3. For an administrative penalty decision applying the measure of compelling the change of domain name information or the return of the domain name, the organisation or individual is responsible for carrying out the procedures for changing the domain name information or returning the domain name at the domain name management agency within 30 days from the date the administrative penalty decision takes effect.

After the above period, if the violating organisation or individual does not carry out the procedures for changing the domain name information or returning the domain name, the agency that issued the administrative penalty decision shall request the domain name management agency to revoke the domain name. The domain name management agency is responsible for revoking the domain name under law.

4. Credit institutions and the State Treasury are responsible for collecting fines, deducting and transferring fine payments, and refunding fines paid, on the basis of the decision of the person competent to impose penalties handling the case, in accordance with law.

Article 32. Amendment, cancellation and suspension of the effect of administrative penalty decisions

1. Where a decision of a competent authority settling an industrial property dispute is issued within 90 days from the date the administrative penalty decision was issued and results in a change of the grounds or contents of the administrative penalty decision, the person competent to impose penalties shall issue a decision to amend, suspend or cancel part or all of the effect of the issued administrative penalty decision to conform to the dispute settlement decision.

2. Where the administrative penalty decision has been enforced by the penalised organisation or individual, the person competent to impose penalties shall take one of the following measures:

a) Request the State Treasury where the fine was collected to refund part or all of the fine paid under the decision amending, cancelling or suspending the penalty decision, at the request of the organisation or individual that paid the fine. A request for refund of the fine is accepted only within 90 days from the date the decision on amendment, cancellation or suspension is issued;

b) Return goods, articles and business means that were temporarily detained or confiscated but have not yet been disposed of. Where the temporarily detained or confiscated goods, articles and business means have been disposed of, the organisation or individual requesting handling of the violation is responsible for compensating the penalised organisation or individual in accordance with the commitment made when requesting handling of the violation, if any;

c) Other handling measures as reasonably proposed by the parties concerned.

3. Where an administrative penalty decision is found to have violated competence, procedures or grounds for issuance, it shall be handled under Article 15 of the Law on Handling of Administrative Violations and the law on settlement of complaints and denunciations.

Chapter 5.

IMPLEMENTATION PROVISIONS

Article 33. Effect

1. This Decree takes effect from 15 October 2013.

2. The Government's Decree No. 97/2010/NĐ-CP of 21 September 2010 providing for penalties for administrative violations in the field of industrial property ceases to be effective from the date this Decree takes effect.

Article 34. Transitional provisions

For administrative violations in the field of industrial property that occurred before 01 July 2013 and are discovered or under consideration and settlement only afterwards, the provisions more favourable to the violating organisation or individual shall apply.

Article 35. Organisation of implementation

1. The Ministry of Science and Technology shall guide the implementation of this Decree.

2. The Ministry of Planning and Investment and the Ministry of Science and Technology shall guide the order and procedures for changing the enterprise name, removing the violating element from the enterprise name and revoking the Enterprise Registration Certificate where the enterprise name violates the law on intellectual property.

3. The Ministry of Information and Communications and the Ministry of Science and Technology shall guide the order and procedures for changing and revoking domain names that violate the law on intellectual property.

4. Ministers, Heads of ministerial-level agencies, Heads of Government-attached agencies, and Chairpersons of the People's Committees of provinces and centrally-run cities, within the scope of their functions and tasks, shall be responsible for organising the implementation of this Decree.