Valuation of material evidences and means of violations for use as a basis for determining the fine bracket in the field of industrial property in Vietnam

Valuation of material evidences and means of violations for use as a basis for determining the fine bracket in the field of industrial property in Vietnam (Internet image) 

Regarding this matter, LawNet would like to answer as follows:

On May 4, 2024, the Government issued Decree 46/2024/ND-CP amending Decree 99/2013/ND-CP amended by Decree 126/2021/ND-CP.

Valuation of material evidences and means of violations for use as a basis for determining the fine bracket in the field of industrial property in Vietnam

According to Clause 5, Article 1 of Decree 46/2024/ND-CP amending Decree 99/2013/ND-CP (amended by Decree 126/2021/ND-CP), regulations on valuation of material evidences and means of violationsfor use as a basis for determining the fine bracket in the field of industrial property are as follows:

- Basis for valuation of material evidences and means of administrative violations specified in this Dercree shall be applied basing on one of grounds according to the priority order specified in Point a, b and c Clause 2 Article 60 of the Law on Handling of Administrative Violations of Vietnam.

-  In case the grounds mentioned in Clause 1 of this Article cannot be applied for valuating material evidences to serve as a basis for determining the fine bracket or sanctioning competence, the competent persons settling case may issue a decision to temporarily seizure the infringing material evidences and establish a Council of valuation as prescribed in Clause 3 Article 60 of the Law on Handling of Administrative Violations.

- The principles of determining the value of goods of violations are implemented according to the principles stipulated in the Decree detailing certain articles and measures for the implementation of the Law on Intellectual Property regarding industrial property ownership, protection of industrial property rights, rights to plant varieties, and state management of intellectual property ownership.

Forms of penalties and remedial measures for violations related to industrial property in Vietnam

- For each administrative violation related to industrial property, organizations and individuals who violate shall be subject to one of the main forms of penalties, which are warnings or fines.

- Depending on the nature and extent of the violation, the violating organization or individual may also be subject to one or more of the following additional forms of penalties:

+ Confiscation of infringing goods, means of infringement, including counterfeit goods with counterfeit trademarks or geographical indications; materials, substances, and means primarily used for the production and business of counterfeit goods with counterfeit trademarks or geographical indications.

+ Revocation of the right to use certificates of industrial property representation; examiner cards; and certificates of organizations qualified for appraisal practice for a period of 01 to 03 months from the effective date of the penalty decision.

+ Suspension of a part or the entire production, business, and service activities for a period of 01 to 03 months from the effective date of the penalty decision.

- In addition to the main forms of penalties, additional forms of penalties may be imposed on violating organizations or individuals, including the following remedial measures:

+ Forced removal of the violation elements on goods, business means; mandatory return of domain names; compulsory retrieval of domain names; mandatory change of business names, removal of violation elements in business names.

+ Forced distribution or non-commercial use of counterfeit goods with counterfeit trademarks or geographical indications.

+ Forced removal from the territory of Vietnam or compulsory re-export of imported goods, transit goods with counterfeit trademarks or geographical indications; means, materials, or substances imported primarily for the production and business of counterfeit goods with counterfeit trademarks or geographical indications after removing the violation elements on the confiscated means of infringement.

+ Forced destruction of counterfeit goods with counterfeit trademarks or geographical indications; materials, substances, or means primarily used for the production and business of counterfeit goods with counterfeit trademarks or geographical indications; confiscated means of infringement if the violation elements cannot be removed from those means; infringing goods that harm human health, animals, plants, and the environment; counterfeit labels, tags, or goods bearing counterfeit trademarks or geographical indications; labels, tags, packaging, and other goods with violation elements.

+ Forced addition of instructions on industrial property. 

+ Forced restoration of the initial state.

+ Forced surrender of illegally obtained benefits from the administrative violation in cases where there is a basis for determining the amount of illegal benefits; compulsory restitution of the value of confiscated means of administrative infringement that has been consumed, dispersed, or destroyed against the provisions of the law in cases where there is a basis for determining the value of confiscated means of infringement that has been consumed, dispersed, or destroyed; compulsory payment of compensation in cases where there is a basis for determining the value of transferred rights to use patents, useful solutions, industrial designs, infringed layout designs within the corresponding scope and duration of use.

+ Forced return of erased, modified documents, and materials with distorted content to the competent authorities who issued those types of documents and materials.

(Article 3 of Decree 99/2013/ND-CP (amended by Decree 126/2021/ND-CP and Decree 46/2024/ND-CP) 

More details can be found in Decree 46/2024/ND-CP, which comes into force from July 1, 2024.

Nguyen Ngoc Que Anh

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