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September 16, 2013

Decree on Administrative Sanctions Against Industrial Property Infringement

The Vietnamese government has enacted a new regulation on sanctions against industrial property infringement by the administrative route. The regulation is Decree No. 99/2013/ND-CP, dated August 28, 2013 (Decree 99) and will come into effect on October 15, 2013, replacing Decree 97/2010/ND-CP (Decree 97). The passage of the decree comes as the result of the enactment of the 2012 Law on Handling Administrative Violations, which aims to guide the implementation of the law in the field of industrial property rights. Given the popularity of administrative measures in Vietnam, Decree 99 plays an important role in enforcement of industrial property rights in Vietnam.

Decree 99 brings about four major changes as compared to Decree 97.

Fine Level

Decree 99 establishes a ceiling on the amount of fines that can be imposed on infringers. Individual infringers shall be subject to a maximum fine of VND 250 million (USD 11,900), while juristic persons (companies) shall face a maximum fine of VND 500 million (USD 23,800).

With regard to each act of infringement, a company is also subject to a fine twice as high as the one imposed on an individual infringer.

Sanctioning Power

Decree 99 raises the sanctioning power for all of the competent authorities involved in IP enforcement by administrative route. These authorities are entitled to impose higher fines upon infringers as compared to Decree 97.

Decree 99 also bestows new responsibilities and powers upon certain authorities. For example, under Decree 99, the Market Control Authority is granted a new task of raiding infringers at production sites.

Domain Name Disputes and Company Name Issues

Decree 99 strives to address the difficulty in enforcing the decision on revoking disputed domain names and infringing company names. Decree 99 shortens the time frame for a voluntary withdrawal of the disputed domain name and sets forth a stronger legal consequence in case of a failure to voluntarily change the infringing company name.

Power of Attorney

Decree 99 clarifies and simplifies the requirement for the formality of Power of Attorney in enforcement so that competent authorities will have a uniform understanding. As construed from Decree 99, the POA must be duly executed and notarized. In case of no notarization, the POA must be legalized.

Hopefully, with the enactment of Decree 99, the enforcement environment in Vietnam will be improved, which is of great importance to Vietnam’s economy.

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