ICC Bascap publishes report on anti-counterfeiting and piracy for the first time in Vietnam
For the first time, a comprehensive 39-page report on intellectual property issues in Vietnam covers the status of infringement of intellectual property rights, counterfeit goods and counterfeit goods issued on the initiative of the International Chamber of Commerce (ICC). called ICC Bascap is called “Promoting and Protecting Intellectual Property in Vietnam” in cooperation with the Vietnam Chamber of Commerce and Industry (VCCI) and the Vietnam International Inspection Center (VIAC).
Regarding intellectual property rights violations, there are three most alarming issues from the ICC Bascap report:
- The situation of counterfeit goods and contraband is at an alarming level in Vietnam contributing positively to the underground economy (sometimes called the underground economy) worth tens of billions of DOLLARS, causing the State to lose taxes and risk affecting the health of consumers (Counterfeit goods are available in all sectors from textiles , cosmetics, pharmaceuticals, spirits, food and software)
- Counterfeiters are becoming increasingly sophisticated because they use sophisticated counterfeiting technology to disable detection, with a focus on counterfeiting big brands
- Infringement of intellectual property rights is increasing rapidly and widespread on the internet
How to distinguish counterfeit and counterfeit trademarks
Counterfeit goods are often understood as a specific type of consumer goods forged in external form (but the quality is far inferior to the real goods produced by the manufacturer) to make it difficult for consumers to distinguish what is counterfeit or real goods.
Legally, if a person makes a direct definition of a counterfeit product, it can cause a lot of opinion or controversy, so an indirect definition by listing which goods are considered counterfeits looks better.
According to Decree 185 / ND-CP of November 15, 2013, there are 8 types of goods if they fall into one of the following cases, they must be classified as counterfeit goods:
- No use value, no use
- Valid for use, use but not true to natural origin, the name of the goods
- Valid for use, use but not in accordance with the value of use, published and registered uses
- Having a dosing content of the main substance or the total number of nutrients or other basic technical features of only 70% or less compared to the quality standards or regulations registered, published on labels, packaging of goods
- There are labels of goods, packaging of goods forged names and addresses of other traders; forging trade names or trademarks; forging circulation registration codes, barcodes or forging the packaging of goods by other traders
- Labeling goods, packaging goods with misleading contents on the origin of goods, places of production, packaging and assembly of goods
- intellectual property forgery as stipulated in Article 213 of the Intellectual Property Law 2005
Preventive medicines for humans and animals:
- no pharmaceutical substances or pharmaceutical substances but not in accordance with the registered content,
- insufficient quantity of medicinal substances as registered
- there are pharmaceutical substances other than pharmaceutical substances written on labels and packaging of goods.
Plant protection drugs:
- without active substances, the content of the active substance is only 70% or less compared to the quality standards, technical regulations registered, announced application,
- not enough registered active substances;
- have an active substance other than the active substance stated on labels, packaging of goods
Of the eight types of counterfeit goods mentioned above, at least one is directly related to the infringement of intellectual property rights known as intellectual property counterfeits.
Counterfeit intellectual property is actually derived from the term “counterfeit goods” stipulated in the Agreement on commercial aspects of intellectual property rights (TRIPs) of which Vietnam is a member and Vietnam is obliged to transfer it into national law as a prerequisite for Vietnam to be accepted as the 150th member of the Organization World Trade (WTO)
Acts of infringing on intellectual property rights in general or trademark infringement in particular must of course be handled by administrative or civil measures under the laws of Vietnam.
However, a violation of an administrative penalty or a civil court claiming damages is insufficient in serious cases as required by the TRIPs agreement, so Vietnam is also forced to criminalize trademark violations if it is concluded to be counterfeit trademarks and is actually carried out on a “commercial scale”
The Law on Intellectual Property of Vietnam has included the above obligations imposed by the TRIPs agreement in Article 213 provided that counterfeit intellectual property goods include 3 types:
(a) counterfeit trademarks, (b) counterfeit geographical indications and (c) counterfeit goods, in which counterfeit trademarks are defined as goods or packaging of goods with identical marks or trademarks or almost inaluable from those registered valid for the goods themselves without the permission of the rights owner.
In conclusion, counterfeit goods may be counterfeit trademarks or vice versa, counterfeit trademarks may be counterfeit as long as they belong to any of the 8 types of counterfeit goods specified in Decree 185/2013/ND-CP or described in Article 213 of the Intellectual Property Law
Must administrative or criminal liability be determined for the infringer?
It should be noted that in accordance with the law of Vietnam, violators (individuals, organizations) producing, trading and circulating counterfeit goods may not be held criminally liable (administratively sanctioned only) if such person produces, trades, circulates, according to general principles, is concluded to not constitute a compulsory crime as stipulated in the Penal Code 2015.
Acts of producing and trading counterfeit goods (not necessary in relation to counterfeit trademarks) are food and medicines for people theoretically to be prosecuted for criminal liability under Article 193 and Article 194 of the 2015 Criminal Code amended, supplemented, i.e. commercially.
The scale or value converted in cash of counterfeit goods due to the basic factors constding criminal liability of the crime of producing and trading counterfeit goods in the form of food, food and food additives shall be sentenced to between 2 years and 5 years of imprisonment, while counterfeit goods that are drugs shall be sentenced to between 02 years and 07 years of imprisonment.
Where the act of producing or trading counterfeit trademarks is identified as counterfeit trademarks registered by others in accordance with Article 213 of the Intellectual Property Law, it may in principle be criminally handled under Article 226 of the 2015 Criminal Code as amended.
According to Article 226, individuals can be fined from VND 50 million to VND 1 billion, non-confined for up to 3 years or imprisoned for between 6 months and 3 years, if the violations of the individual. at the same time satisfying three factors that constitute a crime:(a) the indivi
dual has intentionally committed a crime
(b) the infringing object is a trademark counterfeit or a forgery of geographical indications
(c) violations committed on a commercial scale
- or illegal profit from VND 100 million to VND 300 million
- damage to trademark owners from VND 100 million to VND 500 million
- or the offending goods valued at between VND 200 million and VND 500 million do not depend on the criminal liability committed by the offender in the above paragraph
A commercial corporation (a legal or for-profit company) may also be criminally prosecuted under Article 226.
for example, in case of counterfeiting the trademark “Aluminum Viet France Shal”:
According to Clause 4, Article 226, the main penalty for legal people whose violations are determined to constitute a basic crime is a fine of VND 500 million to VND 2 billion or a term of suspension of business. from 06 months to 02 years or there are aggravated conditions as prescribed in Clause 2, Article 226, the main penalty applied is a fine of up to VND 05 billion, if there are all the factors consting the following crimes:
- Commercial legal people have committed violations due to intentional errors, and the infringed subjects are counterfeit trademarks or forgery of geographical indications, and acts of infringement of commercial scale, illegal profits from 200 million to 300 million, causing damage to trademark owners from 300 million to 500 million or infringing goods valued from VND 300 million to less than VND 500 million or violated goods valued from VND 100,000,000 to VND 300,000,000 but has been administratively sanctioned for this act