by sblaw | June 25, 2015 10:51 am
Stay the completion of customs procedures
This measure of stay of the completion of customs procedures shall be taken at the request of the holder of an IPR protected in Vietnam, in order to collect information and evidence about a goods shipment to enable the IPR Holder to exercise his/her right to request for the settlement of an act of infringement and to request for application of provisional measures or preventative measures and to ensure that such act of infringement is properly dealt with through the administrative channel.
CHART OF THE PROCEDURES FOR APPLICATION OF THE MEASURE TO HALT THE COMPLETION OF CUSTOMS FORMALITIES
|(1)||Right holder files either directly or through an industrial property agent an application for halting the completion of customs formalities (Article 34 Decree 105/2005/NĐ-CP).|
|(2)||Checking: (i) evidence proving the right holder status of the applicant, (ii) information about the suspected goods or in order to detect IPR infringing goods (Article 23, Article 24, Article 25 of Decree 105/2005/NĐ-CP, clause 3 Article 48 Decree 154/2005/NĐ-CP)|
|(3)||The applicant must deposit an amount of money equal to 20% of the value of the shipment or 20 million dong (in case the value of the shipment cannot be identified) or a document of guarantee from a bank/credit institution (Article 217 of the IP Law).|
|(4)||The customs authority issues a notice of refusal of the application for halting the completion of customs formalities if the applicant fails to meet the requirements set out in points (2) and (3) (Article 36 of Decree 105/2006/NĐ-CP).|
|(5)||The Customs authority issues a notice of acceptance of the application for halting the completion of customs formalities if the applicant meets the requirements set out in points (2) and (3)(Article 36 of Decree 105/2006/NĐ-CP).|
|(6)||Upon discovering the suspected goods, the customs authority shall issue a decision to halt the completion of customs formalities (either at the request of the IPR holder or to exercise the power to impose administrative penalties) (Article 36, Article 37 of Decree 105/2005/NĐ-CP, Article 51 of Decree 154/2005/NĐ-CP).|
|(7)||To take the halting measure and leave time for related parties to produce evidence, arguments, documents and examine and verify the IPR-related legal status in order to determine whether or not an act of IPR infringement has been committed or not (Article 51 of Decree 154/2005/NĐ-CP).|
|(8)||In case there is no infringement of the IPR:
(i) Results relating to the IPR status of the shipment conforming that the halted shipment does not infringe upon IPR,
(ii) a decision of the IPR dispute resolution authority confirming that the shipment does not infringe upon IPRs. The customs authority shall continue completing customs formalities for the shipment..
|(9)||If the customs authority concludes that the halted goods infringe upon the IPR, the goods owners and the goods shall be liable for the penalties set out in points (10) Or (11) Depending on the choice of the IPR Holder.|
|(12)||If the customs authority concludes that the halted goods infringe upon IPRs under point 9 and the right holder does not initiate a civil lawsuit|
|(13)||The customs authority decides not to consider the application of the administrative penalties (Article 214,, 215 of the IP Law) The halted shipment shall be further released for completion of the customs formalities (Article 219 of the IP Law).|
|(14)||The customs authority shall continue the completion of the customs formalities when:
(i) The application for halting is rejected; or
(ii) The applicant withdraws the application for halting the completion of customs formalities, or
(iii) Upon the expiry date of the halting period, the Customs authority does not receive an application for settlement of the IPR Infringement from the applicant or a document from a State competent agency or from the court confirming that they have received an application for settlement of the IPR infringement relating to the halted shipment; or
(iv) The results of determination of the IPR-related legal status confirming that the halted shipment does not infringe upon IPRs; or
(v) The applicant for halting does not initiate the civil lawsuit; or
(vi) The Customs authority does not accept the case for settlement in accordance with the procedures for dealing with administrative offences; or
(vii) A decision on halting the completion of customs formalities is suspended or revoked under a complaint settlement decision.
(Clause 3, Article 218 of the IP Law, Article 52 of Decree 154/2005/NĐ-CP, clause 1, Article 36, Article 37 of Decree 105/2006/NĐ-CP, Article 219 of IP Law).
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