On May 4, 2024, the Government issued Decree No. 46/2024/ND-CP amending and supplementing certain articles of Decree No. 99/2013/ND-CP regulating administrative sanctions in the field of industrial property (“Decree 99”), which was amended and supplemented by Decree No. 126/2021/NĐ-CP (“Decree 46”). This article highlights the most notable points of Decree 46, including remedial measures, principles for determining the value of infringing goods, grounds for verifying violations, and procedures for receiving and handling administrative violation claims.
1. Remedial measures
Decree 46 expands the scope of administrative sanctions in the field of industrial property, focusing on preventing and remedying the consequences of violations. Some newly introduced remedial measures include:
• Compulsory revocation or temporary seizure of domain names related to industrial property violations.
• Compulsory distribution or use for non-commercial purposes goods that infringe on trademark or geographical indication.
• Compulsory change of enterprise names that infringe industrial property rights.
• Compulsory expulsion from Vietnamese territory or re-export of imported or in-transit goods that infringe on the trademark or geographical indication; imported materials and means mainly used to produce or trade in goods infringing on trademark or geographical indication after removing the infringing elements on the violated exhibits and means.
• Compulsory additions of indications of industrial property.
• Compulsory restoration of the initial state.
• Compulsory remittance of the illegal profits gained from committing the administrative violation if there are bases to determine the illegal profits,…
These measures aim to enhance law enforcement effectiveness, prevent violations, and better protect the rights of industrial property owners.
2. Principles for determining the value of infringing goods
The value of the infringing goods is determined by the infringement handling agency at the time the infringement occurs and is based on the following priority bases:
• Listed price of the goods on the market;
• Actual selling price if the goods have been sold;
• Cost price of the goods if they have not been circulated;
• Purchase price if no information on the listed or selling price is available.
Determining the value of infringing goods using these criteria ensures transparency and objectivity in the sanctioning process.
3. Basis to carry out verification of administrative violations of intellectual property rights
Instead of stipulating provisions on the subjects and basis for the subjects to exercise the right to request handling of violations, Decree 46 only mentions the basis for verifying the violation, specifically:
• Having a request to handle the infringement of the intellectual property rights holder;
• Having the results of inspections or audits by the competent authority to handle administrative violations;
• Recommendations from organizations or individuals who have been or are likely to be harmed by unfair competition in the field of intellectual property;
• Information from individuals or organizations detecting violations, especially those affecting consumer rights and society.
Supplementing additional grounds for verifying violations will help the competent authorities effectively carry out their tasks, and make accurate and appropriate decisions on the application of handling measures in accordance with the law.
4. Receiving and processing administrative violation claims
a) Timeline
Clause 19 of Article 1 of Decree 46 stipulates that the time limit for guiding the applicant to submit the claim to the right competent authority is 10 days from the date of receipt. Additionally, the accused party must provide information, evidence, and explanations within 30 days from the date of the request by the claim resolution authority.
b) Processing when complaints or disputes arise
Clause 20 of Article 1 of Decree 46 supplements the process when complaints or disputes arise after the administrative violation claim has been received, specifically:
• The receiving authority will suspend the processing of the claim per point a of Clause 2, Article 28 of Decree 99.
• The receiving authority will require the relevant parties to initiate the procedures to request the resolution of the complaint, denunciation, or dispute at the competent authority within 10 days from the date the dispute is recorded.
• The receiving authority will cooperate with the Intellectual Property Office to clarify the legal status of the industrial property rights that are the subject of the complaint, denunciation, or dispute.
• Within 30 days from the date of receiving the response from the Intellectual Property Office, the receiving authority is responsible for responding on whether to proceed with or refuse the request to handle the infringement of the industrial property rights of the party requesting the administrative penalty.
Thus, Decree 46 was issued to contribute to limiting and tightening administrative violations in the field of industrial property to create a healthy environment for the development of this field and ensure the legitimate rights and interests of the relevant parties.
Below is TNTP’s article on the new points of Decree 46/2024/ND-CP. We hope this article provides value to our readers.
Sincerely,
