Some new regulations on sanctioning administrative violations in the field of industrial property
Decree 126/2021/ND-CP takes effect from January 1, 2022, which is to amend and supplement several provisions of Decree 99/2013/ND-CP dated August 29, 2013, on sanctioning administrative violations in the Intellectual Property (IP) field.
Decree 126 essentially retains most of the regulations in Decree 99, but it also introduces some changes such as:
- Regarding general provisions:
– The regulation scope (Article 1) is expanded and clarified, and a new sub-article (Article 1a) is added to Article 1 to list the entities subject to administrative sanctions. That facilitates the authorities easily apply the law and sanctions to infringers.
– The remedial measures (Article 3.3) and valuation of material evidence/means infringing the industrial property rights (Article 4) have been revised to be apparent and more feasible.
- Regarding violation acts:
– Rising the level of administrative fines for some violations against regulations on IP protection instructions (Article 6), IP representation (Article 7) and IP assessment (Article 8);
– The acts of manufacturing products that infringe other trademarks, geographical indications, trade names, industrial designs are clearly defined to include various acts of “designing, producing, processing, assembling, packaging the products that bear infringing elements against other trademark, trade names, geographical indications and industrial designs” (Article 11, Article 12). That helps to ensure the consistency between articles and is more convenient in the law application.
- Regarding additional sanctions and remedial measures:
– Amending/supplementing regulations on additional sanctioning forms and remedial measures (Article 8, Article 10, Article 11, Article 12, Article 13, Article 14 of Decree No. 99/2013/ND-CP), which is consistent with the Law on Handling of Administrative Violations and applicable practice.
- Regarding the competence to sanction administrative violations
– Amending/supplementing some titles competent to sanction administrative violations specified in Decree No. 99/2013/ND-CP (Articles 18, 19, 20), which is consistent with the Law on Handling of Administrative Violations;
– Supplementing Article 21a, which regulates the competence to make records of administrative violations to identify the person who is competent to make records of administrative violations but not specified under Decree No. 99/2013/ND-CP;
– Amending/supplementing the competence of some titles to confiscate material evidence and means used in administrative violations with a value not exceeding “two times” of the level of administrative fines (Articles 16.1.c, 16.2.d, 16.4.d, 17.1.c, 17.2.d, 17.4.d, 18.1.c, 18.2.d, 19.2.c, 19.3.d, 20.1.c, 20.2.d, 20.3.d, 21.1.d).
- Regarding procedures for handling violations:
– Amending/supplementing the provisions of Article 27.2 on request rights of the right holder and the agreement between the parties during the settlement of IP cases at Article 27.1 to be more appropriate to the civil nature of the IP right.
Implementation provisions of Decree 126/2021/ND-CP:
- The Decree takes effect from January 1, 2022.
- Applying the provisions of Decree 126/2021/ND-CP in case administrative violation acts in the IP field that occurred before January 1, 2022, then detected or currently being considered/resolved, but this Decree does not regulate legal responsibility or provide lighter liability.
- Applying the provisions of Decree No. 99/2013/ND-CP dated August 29, 2013, in case individuals or organizations sanctioned for administrative violations have still lodged complaints against decisions on sanctioning administrative violations that have been issued or completely executed before January 1, 2022.
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