1.Objectives of the establishment and operation of the Market Surveillance Agency
KENFOX: The Market Surveillance Agency, formerly the Central Market Management Bureau and the Market Management Bureaus in provinces, cities and autonomous regions nationwide, was established on 03 July 1957 under Decree No. 290/TTg of the Prime Minister.
On 23 January 1995, the Government issued Decree No. 10/CP providing for tasks, power and organization of the Market Surveillance bodies, in which the Market Surveillance is defined as a specialized force that is set up from central to district level with functions to inspect and control the markets, and to act against commercial violations incurred in the local markets.
Through 56 years of development, the Market Surveillance system now include the following bodies:
2.Do the Market Surveillance Agency and other bodies such as the Inspectorate of Ministry of Science & Technology or Intellectual Property Office of Vietnam coordinate with each other?
KENFOX: For the coordination among the ministries and other state bodies in action against smuggling, counterfeiting and fraudulence, on 27 August 2001, the Prime Minister issued Decision No. 127/2001/QD-TTg on establishment of the Central Steering Committee in charge of action against smuggling, counterfeiting and trade fraudulence, which is chaired by the Minister of Industry & Trade and membered by the Deputy Ministers of 12 related ministries.
The Market Surveillance Agency and Market Surveillance Departments are now assigned with further tasks, which are to serve as a standing body of the said Steering Committee, to coordinate the performance of related state bodies in market inspection and control, including intellectual property right (IPR) enforcement. The National Office of Intellectual Property of Vietnam and Inspectorate of Ministry of Science & Technology are also members to the said Steering Committee. We often coordinate and exchange information during our daily performance, particularly in the IPR enforcement actions.
3.Difference between the Inspectorate of Ministry of Science & Technology and the Market Surveillance bodies in operation & power
KENFOX: The Inspectorate of Ministry of Science & Technology and the Market Surveillance force both are IPR enforcement bodies. However, the Market Surveillance force are set up from the central to district level with sufficient personnel in order to take responsibility in various matters.
4.Organization and personnel of the Market Surveillance Agency
KENFOX: Number of personnel nationwide: 6,000;
At central level, the Market Surveillance Agency is staffed with 70 officials, who are working at the head office in Hanoi, and the representative offices in Da Nang & Ho Chi Minh City.
For the organization chart, please see the enclosure.
5.Educational qualifications to become an official of the Market Surveillance Agency
KENFOX: To become an official of the Market Surveillance Agency, the applicant should be a college or university graduate with major being laws, economics, commerce, finance or police.
6.Training courses that the Market Surveillance officials are attending in order to maintain and enhance the performance (if any)
KENFOX: At the Market Surveillance bodies, a civil servant must attend training courses before ranked as a controller. At the end of these courses, the civil servant must pass relevant examinations and obtain certificates.
Market controllers must be qualified before obtaining market inspection licences. Only those with the market inspection licences can proceed with market inspection and control.
Civil servants at the Market Surveillance bodies must attend annual professional training courses held by Market Surveillance Agency and provincial Market Surveillance Departments on specific subjects such as intellectual property, differentiation between genuine and counterfeit products, food safety, inspection procedures, infringement handling, or on legal documents, which are newly issued.
Upon meeting requirements in terms of working time, expertise, capability, market controllers are entitled to attend training courses designed for principal controllers and take an examination to be ranked as principal controllers.
7.Plans for future organization of the Market Surveillance Agency?
KENFOX: The Ministry of Industry & Trademark has built up a scheme for establishment of the General Market Administration. At at time, the provincial Market Surveillance Departments will become Market Surveillance Agencies directly prior to provincial People’s Committees.
8.Activities in conveying information, for example, propaganda of inspection and control standards, organization of workshops and education activities, information sharing via websites, etc., towards foreign companies who are manufacturing and selling products in Vietnam.
9.Who tends to more utilize the administrative measures, the Vietnamese or foreign companies? What field of business are those companies mainly doing in?
KENFOX: Both Vietnamese and foreign companies are utilizing the administrative measures in coordination with the Market Surveillance bodies. Normally, the coordination by large companies is closer. Business lines of the IPR holders who coordinate with the Market Surveillance to act against counterfeits are diversified, from foodstuffs to high-tech products (mobile phones, vehicles, etc.).
10.How does Market Surveillance Agency give their conclusion in an industrial design or trademark infringing case?
KENFOX: The Market Surveillance bodies detect, inspect, and handle counterfeits, trademark & industrial design infringing goods through:
In order to determine whether an infringement has been constituted, following criteria must be taken into account:
11.Procedure for handling a trademark or industrial design infringement case under administrative measure? The average time required for one (1) case?
KENFOX: Per Articles 24 till 31 of Decree No. 99/2013/ND-CP on sanctions against administrative violations in industrial property field, the procedure for handling an IP infringement case are as follows:
Article 24: Petition for handling IPR infringement;
Article 25: Receiving and examining the Petition for handling IPR infringement;
Article 26: Providing evidence and information to identify the infringement;
Article 27: Handling of infringement during pendency of a dispute;
Article 28: Refusal and suspension of infringement handling;
Article 29: Coordination in handling infringements;
Article 30: Administrative sanctioning procedure;
Article 31: Execution of sanctioning decisions and coercive execution of sanctioning decisions.
According to the above regulations, the maximum time for the Market Surveillance force to issue their acceptance on handling the IPR infringement is 40 days. In case the infringement is found to be incurred, the relevant body shall proceed with inspection, making of administrative violation minutes and issuing administrative sanction decision in 60 days at maximum.
12.How often does the Market Surveillance Agency conduct the market inspection and impose administrative sanction per month?
KENFOX: Each year, the Market Surveillance force in Vietnam conducts the inspection and handles about 12,000 cases concerning counterfeits, poor-quality goods and IPR infringing goods.
13.Which the market or area is subject to the Market Surveillance’s inspection or administrative handling?
KENFOX: Those markets or areas subject to the Market Surveillance’s inspection includes all the regions in the local markets. For each province or city, the Market Surveillance may more focus on particular areas. For example, IPR infringements upon luxurious goods are mainly found in big provinces or cities, while acts of production, and trading of counterfeiting consumer goods or foodstuffs are mainly incurred in small provinces or cities, even in remote areas, and act of smuggling may be found in provinces or cities surrounding the border gates.
14.What are the required documents that the IPR holders need to provide when requesting the Market Surveillance Agency to handle trademark or industrial design infringement under administrative measure?
KENFOX: Per Articles 24, 25, 26 & 27 of Decree No.99/2013/ND-CP, the required documents to request for the Market Surveillance force’s handling of an infringement include a petition for handling the IPR infringement (which states names of infringers, products subject to the infringement, sanctions requested to be imposed), related information and evidence (counterfeit sample, method for identification of genuine products from counterfeits, information on infringers, legal evidence, IP assessment conclusion, etc.).
15.Of the documents mentioned in the reply to Question 14, what documents must be notarized?
KENFOX: The legal documents/ evidence must be notarized (for example, Business Registration Certificate, Trademark Registration Certificate, Patent for Industrial Design).
16.We have heard that in some cases, the expertise opinion by the National Office of Intellectual Property of Vietnam (NOIP) is different from assessment conclusion by Vietnam Intellectual Property Research Institute (VIPRI). Could you tell us your viewpoint on this issue? Which opinion is prevailing, the NOIP’s expertise opinion or VIPRI’s assessment conclusion?
KENFOX: The IP assessment conclusion issued by the VIPRI is the legal document provided by an independent assessment body, while the opinions provided by NOIP are the expertise opinion. The Market Surveillance bodies can use both conclusion/ opinions as a reference source, but final decision shall be given at the Market Surveillance bodies’ discretion. In case of necessity, the Market Surveillance bodies will base their decision on both conclusion/ opinions. Practically, in some cases, opinions given by the NOIP may be more comprehensive than that of the VIPRI.
17.Please let us know advantages and disadvantages of administrative measures applied by your agency in comparison to criminal, civil measures and the administrative measures by the Inspectorate of Ministry of Science & Technology?
KENFOX: The Market Surveillance force has no disadvantage during the IPR enforcement in comparison to other enforcement bodies. As a matter of fact, a majority of IPR infringement cases have been handled by the Market Surveillance force due to their sufficient personnel, who are available from central to district levels. In the meantime, the administrative measure is quite popular in Vietnam thanks to its efficiency in term of time saving and simple procedure.
18.How can IPR holders coordinate with the Market Surveillance Agency?
KENFOX: The IPR holders need to be more active in providing information, evidence to the Market Surveillance force. If possible, they can conduct investigations or scout in order to provide such information/ evidence. During the enforcement process, the IPR holders can coordinate with the Market Surveillance bodies to inspect and handle the IPR infringement (for example, in inspection, confirmation of the genuine products from the counterfeits, etc.)
19.It has come to our attention that the Economic Police may handle IPR infringing cases. However, it takes much time to collect evidence. Is it possible to enforce IPR without involvement of the Economic Police? Can IPR holders refuse the involvement of the Economic Police?
KENFOX: As for handling of administrative violations, during pendency of an infringement case, if the Market Surveillance bodies find enough evidence for the constitution of a criminal case, such a case shall be passed to the Police for their handling under criminal measure. To the contrary, the Police may pass the infringement that is found at administrative level to the Market Surveillance bodies for imposing administrative sanctions.
20.Does the Market Surveillance Agency have any action plans against the increasing IPR infringement?
KENFOX: To curb the IPR infringements relating counterfeits, poor-quality goods which cause discontent to consumers, enterprises in particular and the society in general, the Ministry of Industry and Trade and the Market Surveillance Agency have set forth following solutions and actions, which are to be implemented in the coming time: