Permitted to Seize, Use, and Exploit Intellectual Property Rights in Criminal Enforcement

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To be specific, according to this Decree, the attachment, use, and exploitation of intellectual property rights in criminal enforcement against commercial legal entities shall only be executed upon ensuring the following bases and conditions:

- The court's judgment or decision has taken legal effect;

- The commercial legal entity does not comply or does not fully comply with the court's judgment or decision that has taken legal effect and a record has been made according to the provisions of Article 5 Decree 44/2020/ND-CP;

- The commercial legal entity does not have an account or the amount in the account at credit institutions, the State Treasury, securities companies, or the Vietnam Securities Depository is not sufficient to ensure the enforcement of judicial measures;

- Attachment of assets to ensure the enforcement of judicial measures is only applied as specified in points b and c, Clause 1, Article 82 Penal Code.

Details on the attachment, use, and exploitation of intellectual property rights are stipulated in Article 25 Decree 44/2020/ND-CP as follows:

1. Intellectual property rights subject to attachment must belong to the commercial legal entity.

The criminal enforcement authority is competent to decide to attach intellectual property rights owned by the commercial legal entity.

Note, in the case that the commercial legal entity, as the owner of the intellectual property rights, transfers the right to use such intellectual property to other agencies, organizations, or individuals, the intellectual property rights will still be subject to attachment.

2. The enforcement authority has the right to seize documents related to the intellectual property rights of the commercial legal entity.

The seizure of documents depends on the subject of the intellectual property rights.

3. Intellectual property rights shall not be attached during the period in which the state decides on compulsory transfer to ensure national defense, security, public well-being, and state interests.

4. Attached intellectual property rights may be delegated to other agencies or organizations for use and exploitation.

The criminal enforcement authority is competent to decide on delegating the use and exploitation of the intellectual property rights to other agencies, organizations, or individuals. Agencies, organizations, or individuals receiving the rights to use and exploit the intellectual property must submit the proceeds after deducting necessary expenses to the criminal enforcement authority to ensure the enforcement of judicial measures.

In necessary cases, the criminal enforcement authority is competent to request specialized organizations or professionals in intellectual property to collect and manage income, profits from the use and exploitation of the commercial legal entity's intellectual property rights.

5. It is permissible to request the transferee of the intellectual property rights to pay any unpaid amount to the commercial legal entity subject to attachment to ensure the enforcement of judicial measures.

This applies in cases where the commercial legal entity has transferred intellectual property rights to other agencies, organizations, or individuals and has not yet been paid or has only partially been paid.

For detailed procedures and steps of enforcement, refer to Decree 44/2020/ND-CP, which takes effect from June 1, 2020.

Lan Anh

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