9 Changes Regarding the Customs and Border Protection

of Intellectual Property Rights under the Circular 13/2015/TT-BTC as Revised

Email: vinh@bross.vn

On March 6, 2020, the Ministry of Finance issued Circular 13/2020 / TT-BTC amending and supplementing a number of articles of Circular 13/2015 / TT-BTC dated January 30, 2015 on inspection, supervision and suspension of customs clearance for exports and imports with a request for protection of intellectual property rights ("Circular 13/2015 as revised").

Circular 13/2015 as revised took effect from April 20, 2020. Here's a quick rundown of 9 key changes:

1. It is to be imposed as fake goods if the goods have at least one of the basic quality criteria or technical properties that make up the use value, utility of the goods only reaches 70% or less in comparison with the quality standard or technical specification as registered, announced or as shown on labels or packages of goods
2. Dossier requesting for inspection and supervision to detect exported or imported goods with a request for border protection of intellectual property rights[1] shall be submitted to the General Department of Customs through the Customs electricity data processing system, comprising[2]:

a) An application form for inspection and supervision of exported or imported goods with a request for border protection, made according to form No. 01 - ĐĐN / SHTT / 2020, Appendix enclosed herewith;

b) Titles of protection of industrial property rights or other documents proving intellectual property rights are being protected in Vietnam, or certificate of registration of licensing contract; certificate of registration of copyrights and related rights, titles of protection of plant varieties or other documents proving copyrights, neighbor rights;

c) Detailed description of goods infringing intellectual property rights, photographs, distinguishing features of genuine goods from those infringing intellectual property rights;

d) A list of lawful exporters and importers of goods subject to the request for supervision; a list of persons potentially exporting or importing goods infringing intellectual property rights;

e) Power of Attorney (ie. in favor of Bross & Partners). Note that for the right holders those who are not based in Vietnam, Power of Attorney must be legalized (unless the Treaty signed between Vietnam and the country where the right holders are located do not require legalization).

f) Customs fee of 200,000 VND / 01 petition

3.         At least 20 days before the expiration date stated in the written notice of acceptance of the request for inspection or supervision, the right holder or authorized representative must complete the procedure for extension submitted to the General Department of Hai customs through the customs electronic data processing system[3] with information about the new term of protection of intellectual property rights (such as registration of renewal of validity of trademarks or industrial designs)

4.         An application for suspension of customs procedures in case the General Department of Customs (Customs Management Supervision Department) has not yet accepted the application for inspection and supervision includes:

a) Application for inspection and supervision of exported or imported goods with a request for border protection as prescribed in Article 6 of this Circular;

b) An application for suspension of customs clearance, made according to form No. 02 - ĐTD / SHTT / 2020, Appendix enclosed herewith;

c) Guarantee documents made by a credit institution or a security amount as prescribed in Clause 3 Article 74 of the Law on Customs;

d) Receipt of payment of customs fees according to the suspension of customs procedures in accordance with the Circular No. 274/2016 / TT-BTC dated November 14, 2016 of the Minister of Finance regulating the rates, collection and payment regime. , management and use of customs fees and charges for goods and vehicles in transit.

In case the General Department of Customs (Customs Management Supervision Department) has issued a written notice of acceptance of the application for inspection and supervision, the application for suspension of customs clearance does not need the documents at item 4 (a) above

5.         The time limit for suspension of customs clearance is 10 working days from the date the customs authority issues the decision to suspend customs procedures. In case the person requesting the suspension has a plausible reason, this time limit may be extended provided that the person requesting the suspension of customs procedures has to pay an additional amount of money or a guarantee document as prescribed in Clause 3. Article 74 of the Customs Law. The time limit extension does not exceed 10 working days from the date of the suspension expiration. Extension of suspension time is made according to form No. 04 - GHTD / SHTT / 2020, Appendix issued with Circular 13/2015 as revised

6.         Upon verifying that the infringing goods, the Sub-department of Customs where the suspension decision is made shall be responsible:

            (a) To issue a decision on acceptance of the case and to handle the administrative violation based on the assessment conclusion (expert opinion); professional opinion delivered by other state agencies; documents and evidence provided by the right holder;

(b) To release a decision on temporary seizure of goods in two cases: (i) the suspended goods are intellectual property counterfeit, or (ii) the suspended goods are food, foodstuff, pharmaceutical, cosmetics, feed for livestock, fertilizers, veterinary drugs, plant protection drugs, building materials.

7.         On the case by case basis, the Sub-Department of Customs where decided to suspend the customs clearance may: (i) hold and follow according to the court's opinion if the litigant initiates a civil lawsuit; (ii) hand over the case to another intellectual property right enforcement agency; (iii) stop the case if receiving a written notice from the State management agency notifying that there are complaints or disputes regarding the establishment of IP rights, scope of protection, or validity of IP rights; (iv) transfer files in favor of the competent investigating authorities to probe into and prosecute criminal cases if there is a sign of a crime.

8.         Where there are grounds to believe that the exported or imported goods are counterfeit, the customs authority shall take preventive measures including temporary seizure of material evidences and means of violation before carrying out works including: (a) requesting the owner of the genuine goods to provide catalogs, assessment conclusions (expert opinion), documents from abroad, and results of handling similar cases in order to have a basis for identifying fake goods; (b) sampling and conducting inspections; (c) coordinating with anti-smuggling control force to investigate

9.         Where there are grounds to believe that exports or imports are goods of IP infringement, the customs authority shall notify right holders within 3 working days so that the right holder submits a request for suspension of customs clearance along with a proof of guarantee at the bank of at least 20% of the value of the shipment subject to a request for suspension of customs clearance or at least VND 20 million

Bross & Partners has experience in supporting and representing clients to protect intellectual property rights in the customs border, including request for the Customs to detect IP infringement and suspension of customs clearance. Should you have needs, please contact us at Email: vinh@bross.vn; Mobile: 0903 287 057; WeChat: Vinhbross2603; WhatsApp: +84903287057; Skype: vinh.bross; Zalo: +84903287057.

Bross& Partners, a renowned and qualified Patent, Design, Trademark and Copyright agent of Vietnam, constantly ranked and recommended by the Managing Intellectual Property (MIP), World Trademark Review (WTR), Legal 500 Asia Pacific, AsiaLaw Profiles, Asia IP and Asian Legal Business, is providing clients all over the world with the reliable, affordable contentious and non-contentious IP services including enforcement, anti-counterfeiting,  litigation regarding trademark, trade name, industrial design, patent, copyright and domain name.