New Decree No. 126/2021/ND-CP on amending and supplementing a number of articles of the Government’s Decree No. 99/2013/ND-CP on sanctioning of administrative violations in the field of IP

CategoriesHighlights, Legal News, Trends and IP Practice in Vietnam

On December 30, 2021, the Government issued Decree No. 126/2021/ND-CP amending and supplementing a number of articles of the Government’s Decree No. 99/2013/ND-CP dated August 29, 2013 providing sanctioning administrative violations in the field of industrial property. Hereunder are the main and worth noting amendments and supplements:

1. The scope of regulation of the Decree (amended) is more detailed and specific to facilitate the implementation and application in practice, such as: regulations on the competence to make minutes for administrative violations, the power to impose penalties, specific fine levels for each title; the implementation of administrative sanctions, remedial measures in the field of industrial property…

The amended Decree also resolves the relationship of scope of application with other related fields by the provisions of Clause 2, Article 1: “Acts of administrative violation in other fields directly related to the field of industrial property. If not specified in this Decree, the provisions of the Government’s Decree on sanctioning of administrative violations in the relevant field of state management shall be applied.”

2. To add specific provisions on sanctioned subjects by the Article 1a. It is noteworthy that the amended Decree clearly stipulates: “Household business; Households that commit administrative violations specified in this Decree shall be subject to the same penalties as individual violators”. This is an important legal basis to help the process of applying the law on administrative sanctions in the field of industrial property be consistent and fair.

3. The basis for applying the remedial measures in Article 3, Clause 3, has also been revised to be more feasible and clearer, contributing to ensuring the harmony of interests between the parties: the right holder, the violator, violations and common interests of the community and environmental protection…

4. In Article 4, the regulations on determination of value of material evidences being counterfeit trademark goods and of trademark infringement goods are merged in one Clause 1. At the same time, regulations on determining the value of the Infringing means are added. The value of means of violation specified in Clause 3: “The determination of the value of means of administrative violation as a basis for determining the fine frame and sanctioning competence shall be applied according to the provisions of Article 60 of the Law on Handling of Administrative Violations”.

5. The amended Decree raised the main fine levels for a number of infringing acts: Violating regulations on instructions for protection of industrial property rights (Article 6); Violations against regulations on industrial property representation (Article 7); Violations against regulations on industrial property assessment (Article 8).

6. To amend and supplement some technical wordings in the provisions of Articles 10 to 14, such as: to replace the word “selling” by “trading”; regulations on partial or complete suspension of production and business activities; clearly explaining  specific mode of production activities…

7. To increase the main sanctioning authority and/or applying additional sanctioning measures, remedial measures for some official titles on duty from Article 16 to Article 20.

8. In Article 31 on enforcement of sanctioning decisions and enforcement of sanctioning decisions, the responsibilities of the Business Registration Authority and the Domain Name Management Authority are clarified with the following provisions: “The Registration Authority The business registration authority is responsible for revoking the Certificate of Business Registration in accordance with the law” (Clause 2) and “The domain name management agency is responsible for revoking the domain name in accordance with the law” (Clause 3)

9. In Article 32 on amending, canceling and suspending the effectiveness of administrative sanctioning decisions, the provision on “suspension of effectiveness of administrative sanctioning decisions” has been removed to be appropriate and feasible; also adding provision: “to issue a new decision on handling of administrative violations” in case of need to be consistent with the decision on dispute settlement.

The revised Decree also abolishes the provisions at point c, clause 2, Article 32 “Other handling measures at the reasonable proposal of relevant parties” to ensure consistency and avoiding arbitrariness and abuse in the application law.

10. Terms of execution and transition:

– Decree No. 126/2021/ND-CP amending and supplementing a number of articles of Decree No. 99/2013/ND-CP dated August 29, 2013 takes effect from January 1, 2022.

– For acts of administrative violations in the field of industrial property that occurred before the effective date of this Decree, then discovered or are being considered and handled without this Decree providing for legal liability or prescribe lighter liability, the provisions of this Decree shall apply;

– For decisions on sanctioning administrative violations that have been issued or have been completely executed before the effective date of this Decree, but individuals or organizations have been sanctioned for administrative violations and lodged complaints, using the provisions of the Government’s Decree No. 99/2013/ND-CP dated August 29, 2013 on penalties for administrative violations in the field of industrial property.

Litigation Department

INVESTIP IP LAW FIRM