Administrative procedure for IPR enforcement in Vietnam
Competent authorities:
- Scientific and Technological Inspectorates (including Inspectorate of Ministry of Science & Technology and Inspectorate of Departments of Science & Technology located in provinces of Vietnam);
- Market Management Offices;
- Customs Offices;
- Police Agencies.
Flowchart of handling IPR infringement under administrative proceedings in Vietnam as follow: (download)
Procedure:
Generally, under trademark-based enforcement practice, the Vietnamese competent enforcement authorities will set up an Inspection Team and may invite representatives from our firm and request local Police to join the inspection to ensure Inspection Team safe during raiding against the alleged infringer. The alleged infringer’s premise/factory/warehouse will be checked/inspected to detect and seize the infringing products. Minutes of administrative violation may be immediately made or a Working Minutes will be made first if necessary to have a meeting/discussion with the alleged infringer later before making a Minutes of administrative violation and a sanction decision imposed on the infringer.
The basic procedures:
(i) Submission of the Petition: Right holder/IP agent files a Petition for handling IPR infringement with Vietnamese competent enforcement authority.
(ii) Check: Enforcement authority checks (i) the Petition and (ii) evidence accompanied with the Petition. If lack of some required documents and/or evidence, right holder/IP agent is required to make additional submission within 30 days.
(iii) Acceptance/Refusal: Within 10 days if all requirements are met, enforcement authority issues a Decision on Inspection. Right holder/IP agent may join and witness the infringement handling process if accepted by the enforcement authority (Article 26.7, Decree No. 99/2013/ND-CP). If the Petition lacks required documents/evidence, the enforcement authority will require additional evidence/explanation case (Article 27.3, Decree No. 105/2006/ND-CP). A refusal to settle the case if failure to submit required documents/ evidence (Article 27.4, Decree No. 105/2006/ND-CP).
- The enforcement authority may request another enforcement authority to coordinate in handling IPR infringement (Article 29, Decree No. 99/2013/ND-CP).
- If the Petition is filed with the competent authority (i.e. fall within the settlement jurisdiction of another enforcement authority), the enforcement authority who received the Petition will provide guidelines to the requester as to which authority he/she should file the Petition or forward the Petition to the enforcement authority having competent to settle the case (Article 27.2, Decree No. 105/2006/ND-CP and Article 25.1(b), Decree No. 99/2013/ND-CP).
- If there is a dispute over or complaint about the registration right, ownership right (e.g. a cancellation/invalidation action) after the Petition is accepted for handling, the enforcement authority may take either of following action, (i) Requesting involved parties to carry out procedures for requesting settlement of the complaint, denunciation or dispute by a competent agency under the law on intellectual property; (ii) Requesting the industrial property rights holder to give explanations or make commitment or to request the state management agency in charge of industrial property to clarify the legal status of industrial property rights subject to the complaint, denunciation or dispute (Article 27, Decree No. 99/2013/ND-CP).
- The right holder may request for assessment conclusion on GI infringement (Article 40.2, Decree No. 105/2006/ND-CP). The enforcement authority may call upon the IP assessment/professional experts (Article 40.1, Decree No. 105/2006/ND-CP).
- If infringement act contains a sign of a criminal, the enforcement authority must forward the case to criminal procedure agencies for investigation and initiation of a criminal lawsuit (Article 62, Law No. 15/2012/QH13 on handling of administrative violation).
(iv) Raid: a raid on the alleged infringer will be launched within 15 days from the date of Inspection Decision (Article 44.2, Law on inspection No. 56/2010/QH12; Article 26.1, Decree No. 81/2011/ND-CP). A Minute of infringement will be made if administrative violation is found during the inspection/raid. Under Minute of infringement, the chief of inspection team may, at his/her own discretion, determine to confiscate the alleged infringing products under a Decision on temporary seizure and, then, make Minute of temporary seizure or to seal the alleged infringing products and requested the alleged infringer to preserve the sealed products, waiting for the decision from the competent person under a Decision on sealing and, then, make Minute of sealing.
(v) Issuance of sanction decision: Enforcement authority will issue a sanction decision on the infringer within 07 days from the date of Infringement Minutes (Article 66, Law No. 15/2012/QH13 on handling of administrative violation). Warning order or monetary fine imposed on the infringer will be indicated in the sanctioning Decision. Kindly note that under a monetary fine under a sanction decision against administrative violation will not exceed VND 500 million (approx. US$ 21,500) for the infringing entity.
Besides, subject to nature and severity of the infringement, some additional sanction forms and remedies may be applied, e.g. confiscation of material evidence and means used in the commission of administrative violations, suspension of the production, trading or provision of infringing products or services, for between 01 and 03 months from the effective date of the sanctioning decision, destruction of the infringing goods, removal of the infringing signs out of the goods, forcible remittance of illicit earnings from the commission of administrative violations or forcible remittance of an amount equal to value of material evidence or means of administrative violation which have been sold, dispersed or destroyed, etc. (Article 3, Decree No. 99/2013/ND-CP).
(vi) Implementation of the sanction decision: Infringer, within 10 days from the date of the sanction Decision, must implement the sanction decision (Article 73, Law No. 15/2012/QH13 on handling of administrative violation.)
Coercive implementation of the sanction decision will be applied if the infringer fails to voluntarily execute the sanction decision (Article 86, Law No. 15/2012/QH13 on handling of administrative violation).
(vi) Appeal against the sanction decision or file an administrative lawsuit: The infringer is entitled to either (i) appeal against the sanction decision (1st time) or (ii) initiate an administrative lawsuit at court (Article 7.1, Law on complaint No. 02/2011/QH13).
In case of appeal against the sanction decision (1st time), if unsatisfactory with the decision on settlement of the first-time appeal, the infringer may either (i) appeal to the upper agency (2nd time) or (ii) initiate an administrative lawsuit at court against the Decision on settlement of the first-time appeal (Article 7.1, Law on complaint No. 02/2011/QH13).
In case of initiating an administrative lawsuit at court (First Instant Court), if unsatisfactory with the First Instant Court’s verdict, the infringer may make appeal under appellate procedures (Article 273.1, Civil Procedure Code 2015).
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