CIRCULAR
On amending and supplementing a number of Article of the Circular 13/2015/TT-BTC dated January 30, 2015 on inspection, supervision, temporarily suspension of customs procedures for exported and imported goods that are subjects of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights
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Pursuant to the Law on Customs No. 54/2014/QH-13 dated June 23, 2014;
Pursuant to the Law on Intellectual Property dated November 29, 2005; the Law on amending and supplementing a number of Article of the Law on Intellectual Property dated June 19, 2009; the Law on Amending and Supplementing a Number of Articles of the Law on Insurance Business and the Law on Intellectual Property dated June 14, 2019;
Pursuant to the Law on Handling of Administrative Violations dated June 20, 2012;
Pursuant to the Decree No. 08/2015/ND-CP dated January 21, 2015 of the Government and the Decree No. 59/2018/ND-CP dated April 20, 2018 of the Government on amending and supplementing a number of Article of the Decree No. 08/2015/ND-CP dated January 21, 2015 of the Government on detailing, and providing measures to implement the Customs Law regarding customs procedures and customs inspection, supervision and control;
Pursuant to the Decree No. 01/2015/ND-CP dated January 02, 2015 and the Decree No. 12/2018/ND-CP dated January 23, 2018 of the Government on amending and supplementing a number of Article of the Decree No. 01/2015/ND-CP dated January 02, 2015 of the Government on scope of customs operation areas; responsibilities and coordination in preventing and combating smuggling and illegal transportation of goods across borders;
Pursuant to the Government s Decree No. 105/2006/ND-CP dated September 22, 2006 and
the Government s Decree No. 119/2010/ND-CP dated December 30, 2010 on amending and supplementing a number of Articles of the Government s Decree No. 105/2006/ND-CP dated September 22, 2006 providing instructions on the implementation of a number of Articles of the Law on Intellectual property on protection of intellectual property rights and State management of intellectual property;
Pursuant to the Government s Decree No. 185/2013/ND-CP dated November 15, 2013 and the Government’s Decree No. 124/2015/ND-CP dated November 19, 2015 on amending and supplementing a number of Article of the Government s Decree No. 185/2013/ND-CP dated November 15, 2013 defining sanctions for administrative violations in producing and trading counterfeit goods and forbidden goods and protection of consumer rights;
Pursuant to the Government s Decree No. 99/2013/ND-CP dated August 29, 2013 on sanctioning of administrative violations in industrial property;
Pursuant to the Decree No. 131/2013/ND-CP dated October 16, 2013 of the Government on sanctioning administrative violations of copyright and related rights;
Pursuant to the Government s Decree No. 87/2017/ND-CP dated December 23, 2013 defining the functions, tasks, power and organizational structure of the Ministry of Finance;
At the request of the Director of the General Department of Customs,
The Minister of Finance promulgates the Circular on amending and supplementing a number of Article of the Circular 13/2015/TT-BTC on inspection, supervision, temporarily suspension of customs procedures for exported and imported goods that are subjects of intellectual property rights; control of counterfeit goods and goods infringing intellectual property rights.
Article 1. To amend and supplement a number of Article of the Circular No. 13/2015/TT-BTC dated January 30, 2015
1. To amend and supplement a number of Clauses of Article 3
a) To amend and supplement Clause 1 as follow:
“1. Counterfeit goods include goods as defined in Clause 8, Article 3 of the Government s Decree No. 185/2013/ND-CP dated November 15, 2013 and Clause 3 Article 1 of the Government’s Decree No. 124/2015/NĐ-CP dated November 19, 2015 on amending and supplementing a number of Article of the Government’s Decree No. 185/2013/ND-CP dated November 15, 2013 on defining sanctions for administrative violations in producing and trading counterfeit goods, forbidden goods and protection of consumer rights.”
b) To amend and supplement Clause 6 as follow:
“6. Customs controls of counterfeit goods or goods infringing intellectual property rights refer to the implementation of customs control specialized measurements and/or other specialized measurement of the customs agency in accordance with law provisions to preventing and fighting against smuggling, illegal transportation of counterfeit goods, goods infringing intellectual property rights in the scope of customs operation area.”
c) To amend and supplement Clause 7 as follow:
“7. Application includes: An application of inspection and supervision of exported and imported goods that are subject of requirement for protection of intellectual property rights; an application of extension the time of inspection and supervision of exported and imported goods that are subject of requirement for protection of intellectual property rights and an application of temporary suspension of customs procedures for goods that suspicious to be the goods infringing intellectual property rights.”
2. To amend and supplement a number of Clauses of Article 4
a) To amend and supplement Clause 3 as follow:
“3. To carry out complaints and denunciations on decisions of handling counterfeit goods, goods infringing intellectual property rights, application of measures to control exported and imported goods of customs authorities related to intellectual property in accordance with law provisions on complaints and denunciations and laws on administrative procedures.”
a) To supplement Clause 6 as follow:
“6.To be responsible to inform the customs agency to carry out the inspection, supervision, control and update on related information of distinguishing counterfeit goods, goods infringing intellectual property rights, authentication goods which intellectual property protected.”
3. To amend and supplement Clause 5 as follow:
“5. Resolve complaints of related organizations and individuals on counterfeit goods, goods infringing intellectual property rights, application of measures to control exported and imported goods of customs agencies related to intellectual property in accordance with law provisions on complaints.”
4. To amend and supplement Article 6 as follow:
“Article 6. Application for dossier of inspection, supervision of exported or imported goods that are required to protection of intellectual property rights
1. The applicant submit the application for dossier of inspection, supervision of exported or imported goods that are required to protection of intellectual property rights to General Department of Vietnam Customs via the Electronic customs data processing system, including:
a) An application of inspection and supervision of exported and imported goods that required to protection of intellectual property rights using the form No. 01-ĐĐN/SHTT/2020 in Appendix issued together with this Circular;
b) A diploma of protection of industrial property rights or other documents of industrial property rights which are protected in Vietnam or Certificate of transfer contract registration of right to enjoyment of industrial property objects; Certificate of registration of copyright and rights related to copyright, plant variety rights or other documents of copyrights and rights related to copyrights, plant variety rights;
c) A detailed description of goods infringing intellectual property rights, photos, characteristics to distinguish genuine goods with goods infringing intellectual property rights;
d) A list of legal exporters and importers goods required supervision; a list of people who may export and import of goods infringing intellectual property rights;
dd) Power of Attorney (in case of authorization for other to submit the application).
Content of the authorization must comply with law provisions; in case the organization or individual do not have the headquarter located in Vietnam, the Power of Attorney must be consularly legalized, except for cases that the consularly legalization exempted as agreed in International treaties that Vietnam is a member;
e) Voucher of customs fees must comply with the Circular No. 274/2016/TT-BTC dated November 14, 2016 of the Minister of Finance on the rate, collection, submission, management and use of the customs fees and the charges on goods and vehicles in transit.
2. In case the documents submit to the General Department of Vietnam Customs are amended and supplemented, the applicant shall inform the General Department of Vietnam Customs on number and date of the Notice on acceptance of inspection and examination of customs agencies and information which amended and supplemented with related documents of information which amended and supplemented as prescribed in this Article.
The customs agency shall check and collate the information as the applicant inform with the accepted dossier of inspection, supervision and notice in written on amending and supplementing of information to the Department of Customs in provinces and cities and the Anti-smuggling and Investigation Department.
In case the Electronic customs data processing system does not response or having troubles, the applicant shall submit a written dossier includes documents as prescribed in this Article at the single-widow section of the General Department of Vietnam Customs or send it by post to the General Department of Vietnam Customs (Department of Customs Control and Management Supervision). Documents as prescribed in point a, c, d Clause 1 this Article is original; documents as prescribed in point b, d e Clause 1 this Article is copy with signature and seal of the legal owner of intellectual property right or the legally authorized person.”
5. To amend and supplement a number of Clauses of Article 7
a) To amend and supplement Clause 1 as follow:
“1. After receiving a full application as prescribed in Article 6 of this Circular, the customs authorities shall check the application in accordance with the following contents:
a) The legal status of the applicant in accordance with law provisions;
b) The match between the content of the application and the enclosed documents; the validity of the diplomas of protection of intellectual property rights;
c) Snapshot in accordance with the content of intellectual property rights which required for protection or content of violations denunciation;
d) Authorization contents in accordance with law provisions;
In case the dossier is insufficient, within 05 working days from the received date of the dossier, the customs agencies shall notice in writing to the applicant to submit supplementing documents.”
b) To amend and supplement Clause 2 as follow:
“2. Applications shall be rejected in the following cases:
a) The applicant is not legally eligible to submit the applicant as prescribed law provisions;
b) Contents of the application and enclosed documents are inconsistent or not matched;
c) During the time of handle the applicant, the customs agency receive document from competent agency to inform about disputes and complaints on the intellectual property right holder or the legal authorized person, protection capacity and protection scope of intellectual property rights.
d) The supplementing documents are deliver later than 10 working days from the day the customs agency delivers the notice of supplementing as prescribed in Clause 1 this Article.”
6. To amend and supplement Article 8 as follow:
“Article 8. Extension and termination invalidation of application for customs inspection and supervision of goods that are required to protection of intellectual property rights
1. In case the applicant submit the application for customs inspection and supervision of goods that are required to protection of intellectual property rights as prescribed in Clause 2 Article 47 of the Law on Customs, the Holders of intellectual property rights or authorized person shall submit the application to the General Department of Vietnam Customs via the Electronic customs data processing system at least 20 days before the expiry date written in the written notice of acceptance for requirement of inspection and supervision; in the application must be clearly state the number, date and validation of the diploma of protection of industrial property rights being proposed to be extended validation; the number and date of the notice of acceptance for requirement of inspection and supervision of the customs agency. The customs agency shall receive the application and handle it as prescribed in Article 7 this Circular.
In case the Electronic customs data processing system does not response or having troubles, the application shall be submitting at the single-window section of the General Department of Vietnam Customs or send it by post to the General Department of Vietnam Customs (Department of Customs Control and Management Supervision).
2. Cases of termination of inspection and supervision:
a) The applicant does not submit the application for extension when the validity in the notice of acceptance of application is expired;
B) The applicant submit a written requirement to the General Department of Vietnam Customs (Department of Customs Control and Management Supervision) to request for termination of customs inspection and supervision for goods required to protection of intellectual property rights;
c) State management agencies of intellectual property have a notice of cancellation of the diploma of protection of intellectual property rights granted to the applicant;
d) The customs agency has evidences to indicate that the diploma in the application dossier is no longer exist or fake.
3. In case of termination as prescribed in point b and c Clause 2 this Article, the General Department of Vietnam Customs (Department of Customs Control and Management Supervision) shall notice in writing to the provinces and cities’ Department of Customs, Anti-smuggling and Investigation Department and the applicant within 05 working days from the day the receiving date of the application or notice of the State management authority.”
7. To amend and supplement Article 9 as follow:
“Article 9. Application of dossier for temporary suspension of customs procedures
The applicant shall submit the dossier to request for temporary suspend of customs procedure for exported and imported goods which required to protection of intellectual property rights to the Sub-department of Customs where the customs procedures carried out via the Electronic customs data processing system as follow:
1. In case the General Department of Vietnam Customs (Department of Customs Control and Management Supervision) has not accepted the application for inspection and supervision, the dossier to request for temporary suspend of customs procedure shall include:
a) The dossier of request to inspection and supervision of exported and imported goods that are required to protection of intellectual property rights as prescribed in Article 6 this Circular;
b) An application of temporary suspension of customs procedures in the form No. 02-ĐTD/SHTT/2020 in Appendix enclosed with this Circular:
c) A guarantee documents or a guarantee amount of money as prescribed in Clause 3 of Article 74 of the Law on Customs.
) Receipt of customs fee of temporary suspension of customs procedures in accordance with law provisions of the Circular No. 274/2016/TT-BTC dated November 14, 2016 of the Minister of Finance on the rate, collection, submission, management and use of the customs fees and the charges on goods and vehicles in transit.
In case the Electronic customs data processing system does not response or having troubles, the legal owner of intellectual property right or the legally authorized person shall submit a written dossier with document as prescribed in this Article to the Sub-department of Customs where the customs procedures carried out to temporary suspension of customs procedures. Documents as prescribed in point b and c this Article is the original, documents as prescribed in point d this Article is copy with signature and seal of the applicant.
2. In case the General Department of Vietnam Customs (Department of Customs Control and Management Supervision) already has the notice of acceptance for the application of inspection and supervision: The dossier of temporary suspension of customs procedures shall include documents as prescribed in point b, c, and d Clause 1 this Article.”
8. To amend and supplement a number of Clauses of Article 10
a) To amend and supplement Clause 2 as follow:
“2. The term of suspension of customs procedures shall be 10 working days since the customs authorities issue a decision on temporary suspension of customs procedures. In case the requester has an acceptable reason, this term may be extended if the requester for temporary suspension of customs procedures submit an extra amount of guarantee money or guarantee documents as prescribed in Clause 3 Article 74 of the Law on Customs. The extended period shall no longer than 10 working days from the date of extension decision.
After the applicant submit the application for temporary suspension of customs procedures and remit the guarantee money or guarantee documents, the Sub-department of Customs which issues the decision of temporary suspension of customs procedures shall implement such procedure using the form No. 04-GHTD/SHTT/2020 in the Appendix attached to this Circular.”
b) To amend and supplement Clause 4 as follow:
“4. When the temporary suspension of customs procedures or application of preventive measures prescribed by law, the Sub-department of Customs which decides to temporarily suspend shall be responsible to carry out one or more in simultaneously of the following tasks:
a) In case that by examination detect that the goods temporarily suspended from custom procedure infringes the intellectual property rights:
a.1) Decide to handle the case under administrative procedures on the basis of assessment conclusions of the assessment organization of Intellectual Property (in the case of solicitation of assessment); expertise of the State management agencies on intellectual property, other State management agencies (in the case of consulting expertise); documents and evidence provided by the holders of intellectual property rights or the authorized persons.
a.2) Decide to detain the goods in case there is a basis to assert that the detained goods are counterfeit goods of intellectual property; goods infringing intellectual property rights are the food, medicinal products, cosmetic, animal feed, fertilizers, veterinary medicine, plant protection products, construction materials.
a.3) Carry out sanction procedures on administrative violations for actions of infringement of intellectual property rights, goods infringing intellectual property rights in accordance with law provisions. Within 10 working days from the effective date of the decision on sanction for administrative violations, the Sub-department of customs shall refund to the requester of temporary suspension of customs procedures the amount of guarantee money remitted as prescribed in Clause 3 Article 74, Clause 3 Article 76 of the Law on Customs and notice in writing to forcing the violator to pay any expenses incurred due to administrative violations;
a.3) Within 30 days from the issuing date of the decision on application of administrative measures to handle goods with counterfeit trademark and pirated goods as prescribed in Clause 4 Article 216 of the Law on Intellectual property, the customs agency which issue the decision of administrative sanction shall issue the notice as prescribed in Clause 12 Article 2 of the Law on amending and supplementing a number of Article of the Law on Insurance and the Law on Intellectual property to the legal holder of intellectual property right or the legal authorized person on the following information: Name and address of the deliver; the exporter, the consignee or the importer; commodities descriptions; quantity of goods; the origin country of the goods if known.
b) Continue to carry out the customs procedures for the batches under the provisions of Article 11 of this Circular if, through inspection, goods temporarily suspended are asserted not to infringe the intellectual property rights;
c) Comply with the decision of the court in case the applicant files a civil lawsuit;
d) Transfer the case to other intellectual property right enforcement agencies to handle if determining the violation is beyond the handling competence of the customs authorities;
dd) Suspend the handling after receiving the documents from State management agencies on intellectual property which notify the dispute, complaints about the holder of the intellectual property rights or the legal authorized persons, protection capacity, scope of protection of intellectual property rights;
e) Transfer to the competent agencies to conduct the investigation and prosecution under the provisions of law in case of determining the violations having signs of crime as prescribed in the Penal Code.”
9. To amend and supplement Article 12 as follow:
“Article 12. Customs inspection and supervision
The customs procedure of exported and imported goods which required to protection of intellectual property rights shall be implemented as prescribed in the Circular No. 38/2015/TT-BTC dated March 25, 2015 and the Circular No. 39/2018/TT-BTC dated April 20, 2019 on amending and supplementing a number of the Circular No. 38/2015/TT-BTC dated March 25, 2015 of the Minister of Finance on customs procedures, customs supervision and inspection, export tax, import tax, and tax administration applied to exported and imported goods and provisions of this Circular. The inspection and supervision for exported and imported goods which required to protection of intellectual property rights shall be implemented as follow:
1. Customs dossier examination:
a) Examination on declared information of goods: the custom declarant must fully and accurately declare the goods names, trademarks, quality specifications, technical specifications, composition, model, symbols, characteristics and utilities of goods according to law provisions;
b) To examine and collate information on the customs declaration with documents in customs dossier on the goods names, trademarks, quality specifications, technical specifications, composition, model, symbols, characteristics and utilities of goods, transport route of goods to determine the conformity;
c) To examine and collate information on the name of the exporter, importer, name of the goods, trademark with information supplied by the General Department of Vietnam Customs as prescribed in Clause 3 Article 7 of this Circular and information collected by the customs agency to determine any signs of infringement of intellectual property rights, counterfeit goods (if any).
In case the exporter, importer is in the List of people who are capable of exporting and importing goods infringing intellectual property rights and the goods shows signs of infringement of intellectual property rights, the customs agency which issues the declaration shall notice on the goods’ signs of infringement of intellectual property rights to its owner or the legal authorized person as prescribed in Article 14 this Circular.
In case the exporter, importer are not in the List of eligible people to export and import goods and
the List of people who are capable of exporting and importing goods infringing intellectual property rights, the customs agency shall only inform on the goods’ signs of infringement of intellectual property rights to its owner or the legal authorized person as prescribed in Article 14 this Circular on the basis of examination of customs dossier and/or actual examination detect that such goods having signs of infringing intellectual property rights.
d) In case by examination and collate show solid evidences to determine that the exported and imported goods are acceptable, having no signs of counterfeit goods or goods infringing intellectual property rights, the custom agency shall continue to implement customs procedure in accordance with law provisions.
In case by examination and collate determine that there are signs of doubt, the contents declared on the customs declaration are inconsistent with the contents in the request dossier of inspection and supervision which accepted by the General Department of Vietnam Customs (Department of Customs Control and Management Supervision) but is not sufficient basis to identify violations, the head of the Sub-department of Customs shall decide to carry out the practical examination of goods and clearly state the signs of counterfeit goods, goods infringing intellectual property rights so that the customs staffs pay more attention when carry out the inspection.
2. Implementation of practical goods inspections:
a) To examine and collate the name of goods and trademark on the packaging and goods itself with the name and trademark declared on the customs declaration, documents in the customs dossier, warning information when checking the customs dossier (if any) to determine the conformity;
b) To carry out practical examination and collate of the goods with inspection and supervision request dossier accepted by the General Department of Vietnam Customs (Department of Customs Control and Management Supervision) to determine whether such goods are counterfeited or goods infringing intellectual property rights (by compare snapshot, descriptions, features to identify genuine goods);
c) In case there are insufficient grounds for identifying goods with signs that are counterfeit goods or goods infringing intellectual property rights and need to carry out more investigation, variation and clarify, the customs staffs shall suggest the head of the Sub-department of Custom to transfer information to the customs anti-smuggling control force under the General Department or to the Anti-smuggling and Investigation Department to verify, investigate, clarify and carry out customs procedures as prescribed;
d) In case of determine that the goods are counterfeit goods, provisions as prescribed in Article 13 of this Circular shall apply. In case the goods are not having signs of infringement of intellectual property rights, provisions as prescribed in Article 14 of this Circular shall apply.
3. In the course of implementation of the customs supervision and patrol on the area of custom operation, if detect that the exported and imported goods having signs of counterfeit or infringement of intellectual property rights, the head of the Sub-department where the declaration registered or detained the goods shall issue the decision of temporarily suspend of transfer the goods through the customs supervision area as prescribed in the Circulars of the Minister of Finance on customs procedure; customs inspection and supervision; export tariff, import tariff and taxation management to carry out practical examination of goods as prescribed in Clause 2 this Article and handle as prescribed in Article 13 or Article 14 this Circular.
4. In case the goods are in the scope of compulsory specialized examination, the customs agency shall base on the conclusions of specialized inspection agency to determine signs of counterfeit goods or goods infringing intellectual property rights.”
10. To amend and supplement Article 13 as follow:
“Article 13. Handle of counterfeit goods or goods with signs of counterfeit
1. Exported and imported goods that determined counterfeit by sufficient evidence shall be handled in accordance with law provisions.
2. In case of determine that exported and imported goods having signs of counterfeit goods, on the basis of goods’ signs and nature, the competent person shall immediately implement prevention measurements as prescribed in Clause 3 Article 119, Article 125 of the Law on Handling of Administrative Violations. On the basis of the violation and its level, the competent authority may apply additional measurements as prescribed in Clause4, 5 and 6 Article 199 of the Law on Handling of Administrative Violations to verify the counterfeit goods; the application of prevention measurements shall be carried out as prescribed in Article 126, 127, 128 and 129 of the Law on Handling of Administrative Violations.
During the period of detain of the goods as prescribed in Clause 8 Article 125 of the Law on Handling of Administrative Violations, the customs agency which issues the decision on application of prevention measurements shall carry out one or combine multiple actions to verify the counterfeit goods as follow:
a) Require the goods owner to provide: The trading contracts of goods or documents with the same validity; technical documents or semi-analysis of the suspected counterfeit goods as prescribed in point a, b, c and d Clause 8 Article 3 of the Decree No. 185/2013/ND-CP dated January 15, 2013 of the Government and Clause 3 Article 1 of the Decree No. 124/2015/ND-CP dated November 19 of the Government.
b) Request the owner of the genuine goods which are counterfeited (in case the owner determined) to provide documents related to the goods (such as catalogs, assessment conclusions, documents from abroad, results of handling of similar cases...) to having a basis to determine the counterfeit goods;
c) If necessary, take the sample and make the assessment at the conformity assessment organization which assigned to serve the State management or assessment trader (in case the assigned technical organization has denial document). Procedure of taking sample and technique of taking sample shall be implemented as prescribed in Article 31 of the Circular No. 38/2015/TT-BTC dated March 25, 2015 and the Circular No. 39/2018/TT-BTC dated April 20, 2019 on amending and supplementing a number of the Circular No. 38/2015/TT-BTC dated March 25, 2015 of the Minister of Finance on customs procedures, customs supervision and inspection, export tax, import tax, and tax administration applied to exported and imported goods of the Ministry of Finance.
d) Coordinate with anti-smuggling control force in the verification and investigation in accordance with defined professional operation;
dd) If the duration of detaining or application of preventive measures as prescribed ends, on the basis of assessment result (in case of implement the assessment), if the evidence is sufficient to conclude that the suspected goods are counterfeit, the customs authority shall handle violations as prescribed in law. If concluding that the goods are not counterfeit, customs authority shall continue the procedures for customs clearance of the goods as prescribed by law. In case of detecting the sign of a crime, the customs agency shall handle as prescribed in the Law on Organization of Criminal Investigation Bodies, the Penal Code and the Criminal Procedure Code.
3. For complicated cases, cases with great value of goods, related to multiple localities, the State authority, international organization, the Sub-department of Customs shall report to the provincial and municipal cities’ Customs Department, the inter-provincial Customs Department (hereinafter referred to as the provincial and cities’ Customs Department) and the General Department of Vietnam Customs to promptly direct for handling.
4. The settlement of the goods owner s complaint or compensation claims due to the detention of goods caused by the customs agency shall comply with current regulations on settlement of complaints and state responsible for compensation.”
11. To amend and supplement Article 14 as follow:
“Article 14. Handling goods with signs of infringing intellectual property rights
1. The Sub-department of Customs where carries out the customs procedure shall inform on signs of goods infringing intellectual property rights to the holder of intellectual property right or the legal authorized person using the form No. 06-TB/SHTT/2020 in Appendix attached to this Circular with image of the goods having signs of infringement of intellectual property rights. The notification shall be sent by registered mail with SMS/email delivery service. The handling shall be implemented as follow:
a) Within 03 working days from the receiving date of the customs agency’s notification, if the holder of the intellectual property rights or the legal authorized person do not have requirement to temporary suspension of customs procedures, the customs agency shall continue to carry out the customs procedure as prescribed in Article 11 this Circular;
) In case of receiving the written request for temporary suspension of customs procedures and the holder of intellectual property rights or the legal authorized person had fulfilled the obligation as prescribed in Clause 3 Article 74 of the Law on Customs, the Sub-department of Customs where the customs procedures carried out shall:
b.1) Issues the decision on temporary suspension of customs procedures as prescribed in Article 10 this Circular;
b.2) If there are sufficient basis to assert that the goods as notified infringe intellectual property rights, the head of the Sub-department of Customs shall consider the decision to apply measures for handling in accordance with provisions of Article 214 and Article 215 of the Law on Intellectual Property, and coordinate with the control forces at all levels to collect information, invest and verify the goods in accordance with law provisions;
c) In case the holder of intellectual property rights or the legal authorized person does not have a written request for temporary suspension of customs procedures, but fulfill the obligations stipulated in Clause 3 of Article 74 of the Law on Customs or has a written request for temporary suspension of customs procedures but does not fulfill the obligations specified in Clause 3 of Article 74 of the Law on Customs, the Sub-department of Customs where the customs procedure carried out shall not temporarily suspend the customs procedures except for cases of detect that goods counterfeiting the intellectual property.
2. In case there is not any information on requirement of intellectual property rights but in the course of implementing customs procedure, the customs agency where the customs procedure carried out detects that the imported goods having signs of infringement of intellectual property rights, the practical examination of goods shall be carried out (in case the goods has not been examined), taking example or take photographs of the goods and on the basis of examination results to decide on customs clearance of goods or temporarily detain goods for handling in accordance with law provisions.”
12. To amend and supplement a number of Clause of Article 15
a) To amend and supplement Clause 1 as follow:
“1. Scope of responsibility of customs control forces in anti-counterfeit goods and anti-goods infringing intellectual property rights shall comply with the provisions of Article 88 of the Law on Customs and the Government s Decree No. 01/2015/ND-CP dated January 02, 2015 and the Decree No. 12/2018/ND-CP dated January 23, 2015 of the Government on amending and supplementing a number of Article of the Government s Decree No. 01/2015/ND-CP dated January 02, 2015 detailing the scope of customs area; responsibility for coordinating in prevention of and fighting illegal import, illegal transport of goods across borders.”
b) To amend and supplement Clause 2 as follow:
“2. When carrying out the duties of customs controls on counterfeit goods or goods infringing intellectual property rights, the customs control force shall have competence in applying operational measures of customs control as prescribed in the Government s Decree No. 08/2015/ND-CP dated January 21, 2015 and the Decree No. 59/2018/ND-CP dated April 20, 2018 on amending and supplementing a number of Article of the Government s Decree No. 08/2015/ND-CP dated January 21, 2015 on detailing and implementation of the Law on Customs to detect, investigate, arrest and handle goods infringing intellectual property rights and counterfeit goods in accordance with law provisions.
13. To amend and supplement a number of Clause of Article 16
a) To amend and supplement Clause 2 as follow:
“2. In receiving information on counterfeit goods, goods infringing intellectual property rights, the recipient shall assess the reliability of information on the basis of collection methods and sources of collected information. In case of detecting the signs of violation, issue the decision of examination or coordinate with the Sub-department of Customs where the customs procedure carried out or the Sub-department of Customs where the goods detained to implement the examination as prescribed by law. On the basis of relevant law provisions and result of practical examination of the goods, if there is sufficient basis to determine the violations, the decision of detain shall be issued in accordance with law provisions.”
b) To amend and supplement Clause 3 as follow:
“3. To implement expertise, taking testimony, verifying and gathering evidence to clearly identify violations, roles and positions of each organization or individual; value of infringing goods; objective, subjective factors, motives and purpose, causes and consequences, aggravating and mitigating circumstances. On the basis of collected evidence, to classify direct evidence, indirect evidence, related documents, on-spot evidence, material evidence and determine evidence in the direction of handling in administrative or criminal procedure. In case of detecting all 04 elements constitute a crime, the People s Procuracy shall be consulted to transfer to investigation authorities of the same level for prosecution according to regulations.”
c) To amend and supplement Clause 4 as follow:
“4. In case of having sufficient basis to determine the infringe goods, the customs control force shall apply or coordinate with the Sub-department of Customs carries out the customs procedure or the Sub-department of Customs detains the goods to apply the prevention measurements in accordance with law provisions on handling administrative violations or transfer the case if it beyond the scope of competent to the competent authority for handling. If there is no basis to determine the violated goods, the customs control forces shall transfer the dossiers to the Sub-department of Customs where the customs procedures are carried out to continue the procedures to continue the customs clearance for the batches of goods as prescribed in this Circular.”
14. To amend and supplement the forms as follow:
To amend Form No. 01-SHTT, 02-SHTT, 03-SHTT, 04-SHTT, 05-SHTT, 06-SHTT attached to the Circular No. 13/2015/TT-BTC dated January 30, 2015 of the Minister of Finance into the Form No. 01-ĐĐN/SHTT/2020, 02-ĐTD/SHTT/2020, 03-QĐTD/SHTT/2020, 04-GHTD/SHTT/2020, 05-TT/SHTT/2020, 06-TBTD/SHTT/2020 in Appendix attached to this Circular.
Article 2. Effect
1. This Circular takes effect on April 20, 2020.
2. The customs agency competent on implementing inspection and supervision, temporary suspension of customs procedures of exported and imported goods which required to protection of intellectual property rights; on control of counterfeit goods and goods infringes the intellectual property rights, the customs declarant, the tax payer shall report and deliver specifically propose to the Ministry of Finance (the General Department of Vietnam Customs) for consideration and implementation guidance.
3. In the course of implementation, if the documents mentioned in this Circular are amended, supplemented or replaced, such amending and supplementing or replace documents shall prevail./.
For The Minister
The Deputy Minister
Vu Thi Mai
Vietnamese
Circular 13/2020/TT-BTC PDF (Original)
Circular 13/2020/TT-BTC DOC (Word)
