VietnameseDecree No. 106/2006/ND-CP dated September 22, 2006 of the Government providing for sanctioning of administrative violations in the domain of industrial property
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Decree No. 106/2006/ND-CP dated September 22, 2006 of the Government providing for sanctioning of administrative violations in the domain of industrial property
| Issuing body: | Government | Effective date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Official number: | 106/2006/ND-CP | Signer: | Nguyen Tan Dung |
| Type: | Decree | Expiry date: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Issuing date: | 22/09/2006 | Effect status: | Known Please log in to a subscriber account to use this function. Don’t have an account? Register here |
| Fields: | Administrative violation |
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THE GOVERNMENT ------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ---------- |
No. 106/2006/ND-CP | Hanoi, September 22, 2006 |
DECREE
PROVIDING FOR SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN THE DOMAIN OF INDUSTRIAL PROPERTY
THE GOVERNMENT
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 29, 2005 Law on Intellectual Property;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations;
At the proposal of the Minister of Science and Technology,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Regulation scope and application subjects
1. This Decree provides for administrative violations in the domain of industrial property, sanctioning forms and levels, sanctioning competence and procedures as well as remedies.
2. Administrative violations in the domain of industrial property provided for in this Decree include:
a/ Violation of legal provisions on state management of industrial property;
b/ Industrial property rights infringements defined in Clause 1, Article 211 of the Intellectual Property Law, including infringement of industrial property rights, causing harms to consumers or society; failure to terminate the infringement of industrial property rights in spite of the right holders’ written requests for termination; production, import, transportation of, or trading in, industrial property counterfeit goods as prescribed in Article 213 of the Intellectual Property Law or assigning others to commit those violations; production, import, transportation of, or trading in, objects bearing marks or geographical indications, which are identical or confusingly similar to the protected ones, or assigning others to commit those violations.
3. Domestic or foreign organizations or individuals that commit violations specified in Chapter II of this Decree within the territory of the Socialist Republic of Vietnam shall be administratively sanctioned according to the provisions of this Decree. When a treaty to which Vietnam is a contracting party otherwise provides for, the provisions of that treaty apply.
Article 2.- Sanctioning principles
1. When committing acts of violation defined in Chapter II of this Decree, individuals or organizations shall be administratively sanctioned in the domain of industrial property.
2. When detected, all administrative violations must be stopped immediately. The sanctioning of administrative violations must be conducted quickly, fairly and thoroughly; all consequences of administrative violations must be remedied in accordance with the provisions of law.
3. Administrative violations in the domain of industrial property shall be sanctioned by competent persons defined in Article 18 of this Decree in strict accordance with the provisions of law on sanctioning of administrative violations.
4. A violation shall be sanctioned only once; a person who commits more than one violation shall be sanctioned for each violation; many persons who jointly commit the same violation shall each be sanctioned.
5. The sanctioning of administrative violations shall be based on the nature and severity of violations, the personal records of violators as well as extenuating and aggravating circumstances so that appropriate sanctioning forms, levels and handling measures can be decided according to the provisions of this Decree.
6. Sanctions shall not be imposed on administrative violations committed in case of emergency, unexpected incidents or by individuals suffering from mental diseases or other diseases which deprive them of their ability to conceive of or control their acts.
7. When an individual or organization simultaneously commits more than one violation, including industrial property violations, the sanctioning competence shall be determined on the principle specified in Clause 3, Article 42 of the Ordinance on Handling of Administrative Violations.
8. When it is considered that a violation shows signs of a crime, the competent person defined in Article 18 of this Decree shall transfer the case dossier to the criminal procedure-conducting agencies of the same level for handling.
It is prohibited to administratively sanction acts showing signs of crimes in the domain of industrial property.
Article 3.- Sanctioning forms and remedies to consequences
1. Principal sanctions: For each violation, violating individuals or organizations shall be subject to either of the two principal sanctions: caution or fine.
2. Caution shall apply to unintentional violations; minor and first-time violations involving extenuating circumstances or to any administrative violations committed by minors of between full 14 years and under 16 years of age.
3. Fine: Based on the nature and severity of violations, competent persons shall decide on fine levels within the prescribed fine bracket.
For administrative violations in the domain of industrial property, the specific fine level applicable to each violation is the average level of the fine bracket provided for such violation which involves neither extenuating nor aggravating circumstances. The average level of the fine bracket is determined by equally dividing the total of the minimum and maximum levels.
For violations involving extenuating circumstances, the fine level may be reduced but must not be lower than the prescribed minimum level of the fine bracket.
For violations involving aggravating circumstances, the fine level may be increased but must not be higher than the prescribed maximum level of the fine bracket.
4. Additional sanctions: Depending on the nature and severity of violations, violating individuals or organizations may also be subject to one or some of the following additional sanctions:
a/ Confiscation of material evidences and/or means of administrative violations; confiscation of goods bearing counterfeit marks or geographical indications or of raw materials, materials and means used mainly for producing or trading in those goods;
b/ Confiscation of protection titles or documents proving industrial property rights which are modified or erased;
c/ Confiscation of papers or documents which are modified, erased or forged;
d/ Deprivation for a definite or indefinite time period of the right to use industrial property representation practice certificate;
e/ Deprivation for a definite or indefinite time period of the right to use the assessor’s card;
f/ Suspension for a definite time period of the trading in infringing products or services.
5. Application of remedies:
Apart from the above principal and additional sanctions, individuals or organizations committing administrative violations may also be forced to apply one or some of the following remedies:
a/ Forcible removal of infringing elements on their products, goods or means of business;
b/ Forcible destruction or distribution or putting in use for non-commercial purposes of goods bearing counterfeit marks or geographical indications or raw materials, materials and means used mainly for producing or trading in those goods, if it does not affect the exercise of the rights by industrial property right holders;
c/ Forcible destruction of infringing goods which cause harm to the human health, animals, plants or environment;
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