|
Administrative procedures shall be taken against the organizations and individuals committing one of the following acts of IPR infringement:
|
|
Upon detecting an organization or individual with an act of IPR infringement, the right holder might request the inspection agency or the market control authority, police, customs authority or the people’s committee to deal with that organization or individual. |
Infringing IPRs and therefore causing losses to the author, owner, consumers or the public;
|
*Upon detecting an act of IPR infringement, organizations, individuals and right holders have the right to request the Specialized Inspectorate or other agencies including the Market Control or People’s Committees for settlement.
|
CHART OF IPR INFRINGEMENT SETTLEMENT BY WAY OF ADMINISTRATIVE MEASURES
| (1) | Right holder, representative of the right holder (Article 198 of the IP Law, Article 21, Article 22 Decree 105/2006/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 105/2006/NĐ-CP). |
| (3) | If the application for settlement of the infringement lacks some required documents, evidence and exhibits, the infringement settlement agency shall request the applicant for additional documents and evidence (clause 3, Article 27 of Decree 105/2006/NĐ-CP). |
| (4) | If the requirements in points (2) and (3) above are not met (clause 4, Article 27 of Decree 105/2006/NĐ-CP). |
| (5) | Article 23 of Decree 106/2006/NĐ-CP |
| (6) | (6) When the application for infringement settlement is not filed with the right authority (i.e. it falls within the settlement jurisdiction of another agency), the agency that receives such application shall provide guidelines to the applicant as which agency he/she should file the application with or shall forward the application to the agency with settlement jurisdiction (clause 2, Article 27 of Decree 105/2006/NĐ-CP). |
| (7) | If there is a dispute over or complaint about the right holder, protectability, or scope of IPR protection, the agency that receives the application for infringement settlement shall guide the applicant to complete procedures to request for settlement of the complaint or resolution of the dispute at the competent agency within 10 days from the day such disputes arises (clause 5, Article 27 of Decree 105/2006). As long as the final conclusion is made by the agency authorized to settle the complaint/dispute, the competent person shall be responsible to rule upon the act of infringement (clause 4, Article 26 of Decree 106/2006/NĐ-CP) (if an industrial property right is infringed upon) (Decree 47/2009/NĐ-CP and Decree 57) |
| (8) | Clause 1, Article 25 of Decree 41/2005/NĐ-CP |
| (9) | Inspection term (Article 48 of the Law on Inspection, Article 41 of Decree 41/2005/NĐ-CP) |
| (10) | Article 55 of the 2002 Ordinance on Dealing with Administrative Offences as revised in 2007 and 2008 |
| (11) | Article 56 of the 2002 Ordinance on Dealing with Administrative Offences as revised in 2007 and 2008 |
| (12) | Article 64 of the 2002 Ordinance, Article 24 of Decree 128/2008/NĐ-CP as revised in 2007, 2008 |
| (13) | Article 66, Article 66a of the 2002 Ordinance on Dealing with Administrative Offences |
| (14) | Organizations and individuals liable for an administrative penalty (Article 118, Article 119 of the Ordinance on Dealing with Administrative Offences). |
| (15) | The complainant has the right to appeal or initiate an administrative lawsuit at the court (clause 1 (d), Article 17 of the Law on Complaints and Denunciations). |
| (16) | Under a Decision for Complaint Settlement for the 1st and 2nd time or under a court judgment (clause 6, clause 8; Article 38, cause 2 (points g and i), Article 45 of the Law on Complaints and Denunciations, Article 20 of Decree 136/2006/NĐ-CP), clause 17.2 of Resolution 04/2006/NQ-HĐTP,clauses 2(a) and 2(b), Article 64 of the Ordinance on Procedures for Settlement of Administrative Disputes. |
| (17) | The Right holder, the respondent has the right to call upon IPR examination during the settlement process (clause 2 Article 40 of Decree 105/2006/NĐ-CP). |
| (18) | (18) The agency authorized to call upon examination during the settlement of an IPR infringement case (clause 1, Article 40 of Decree 105/2006/NĐ-CP, Article 200 of the IP Law). |
| (19) | If an act of infringement contains a sign of a criminal, the agency that receives the application shall forward the case to the competent agency for investigation and initiation of a criminal lawsuit (Article 62 of the Ordinance on Dealing with Administrative Offences). |
| If there is no sign of a criminal but a sign of an administrative offence, the proceeding performing agency (under the criminal procedures) must forward the case file to and request the competent person to impose an administrative penalty on that act (Article 63 of the Ordinance on Dealing with Administrative Offences). |
Source: http://iprenforcement.most.gov.vn/
