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What is a trademark? Trademark rights? What is trademark forgery? Handling counterfeit trademark goods?

Currently, along with the strong development of the economy, the acts of trademark infringement are increasing, especially the acts of counterfeiting trademarks. So what is trademark counterfeiting? If there is a violation, how will it be handled? To learn more about this issue, please follow the article below.

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Legal grounds:

– Law on Intellectual Property 2005 amended and supplemented in 2009, 2019;

– Penal Code 2015;

– Decree 98/2020/ND-CP regulates administrative violations in commercial activities, production and sale of counterfeit and banned goods and protection of consumers’ interests.

1. What is a trademark?

Trademarks are terms that are widely used in the market economy. It is associated with the production and business process of goods and services, etc. Trademarks are used to distinguish goods and services of different organizations and individuals. Signs used as trademarks must be visible signs in the form of letters, words, images, drawings or a combination of those elements represented by one or more colors.

– Clause 16, Article 4 of the Law on Intellectual Property 2015 provides for trademarks as follows:

Trademark is a sign used to distinguish goods and services of different organizations and individuals.

Trademarkable signs must meet the standards set by the National Trademark Offices and international standards. Set two main criteria as follows:

Trademarks must be unique and capable of distinguishing the products and services of one enterprise from those of other enterprises.

Trademarks that do not describe products or services may cause confusion or violate social ethical standards

2. Right of trademark registration:

Trademark registration rights include:

Organizations and individuals have the right to register trademarks for the goods they manufacture or the services they provide.

Organizations and individuals conducting lawful commercial activities have the right to register trademarks for products that they put on the market but are manufactured by others, provided that the manufacturers do not use such marks for products. and do not object to such registration.

A legally established collective organization has the right to register a collective mark for use by its members in accordance with the regulations on the use of collective marks. For signs indicating the geographical origin of goods or services, the organization has the right to register as a collective organization of organizations and individuals conducting production and business in that locality. for place names and other signs indicating the geographical origin of local specialties of Vietnam, the registration must be permitted by a competent state agency.

Organizations with the function of controlling and certifying quality, characteristics, origin or other criteria related to goods and services have the right to register a certification mark provided that they do not conduct production or business. those goods and services. for place names and other signs indicating the geographical origin of local specialties of Vietnam, the registration must be permitted by a competent state agency.

– Two or more organizations and individuals have the right to jointly register a trademark to become co-owners with the following conditions:

+ The use of such mark must be on behalf of all co-owners or for goods or services in which all co-owners are involved in the production and business process.

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+ The use of such mark does not cause confusion to consumers about the origin of goods or services.

In addition, the above-mentioned organizations and individuals have the right to transfer the registration right to other organizations and individuals in the form of a written contract, for inheritance or inheritance in accordance with law, provided that the The transferred organization or individual must satisfy the conditions applicable to the person with the corresponding registration right.

– For a mark protected in a country that is a contracting party to an international treaty that prohibits the representative or agent of the mark owner from registering such mark, which the Socialist Republic of Vietnam also As a member, that representative or agent is not allowed to register the mark without the consent of the trademark owner, unless there is a good reason.

3. What is trademark counterfeiting?

– In Article 213 of the Law on Intellectual Property 2005 amended and supplemented in 2009, 2019 stipulates:

“first. Goods forging intellectual property under the provisions of this Law include goods forging trademarks and forging geographical indications (hereinafter referred to as counterfeit trademark goods) specified in Clause 2 of this Article and pirated goods specified in Clause 3 of this Article.

2. Forged trademark goods are goods or packages of goods affixed with marks or signs identical to or difficult to distinguish from the protected trademarks or geographical indications that are used for the same goods without being approved. permission of the trademark owner or the organization managing the geographical indication.

3. Pirated goods are copies produced without permission of the copyright or related right holder.”

Accordingly, counterfeit goods are goods or packages of goods with trademarks or signs that are duplicated or difficult to distinguish from protected trademarks or geographical indications used for the same item without being approved. permission of the owner or organization managing the geographical indication. In other words, this product has been protected by intellectual property rights. Any form of infringement that damages the trademark must be held responsible in accordance with the law.

4. Handling counterfeit trademark goods?

The law of our country prohibits acts of buying, selling, and producing counterfeit goods in any form. In the case of buying and selling counterfeit goods, it is also strictly prohibited, if any individual or organization violates them, they will be handled according to the provisions of law, in the following forms:

4.1. Civil handling:

trademark owner, the geographical indication management organization has the right to confiscate and destroy all counterfeit trademark goods. At the same time, they have the right to claim damages for the violations caused by the subjects performing the forgery acts.

4.2. Administrative sanctions:

Goods with goods labels or goods packages bearing fake instructions for names and addresses of organizations or individuals that manufacture or import or distribute goods; forging circulation registration codes, announcement codes, barcodes of goods or forging goods packaging of other organizations or individuals; forgery about the origin, origin of goods or the place of production, packing or assembly of goods.

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For acts of trading in counterfeit goods with labels and packages of goods as above, they will be handled as follows: (Article 11 of Decree Decree 98/2020/ND-CP)

+ A fine ranging from VND 1,000,000 to VND 3,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the genuine goods valued at under VND 3,000,000 or illegally obtained under VND 5,000,000;

+ A fine of between VND 3,000,000 and 5,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the genuine goods valued at between VND 3,000,000 and under VND 5,000,000 or illegally profit from 5,000,000 VND. VND to less than 10,000,000 VND;

+ A fine of between VND 5,000,000 and 10,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the genuine goods valued at between VND 5,000,000 and under 10,000,000 or illegally earning from 10,000,000 VND. VND to less than 20,000,000 VND;

+ A fine ranging from VND 10,000,000 to VND 20,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at between VND 10,000,000 and under VND 20,000,000 or illegally profit from 20,000,000 VND. VND to less than 30,000,000 VND;

+ A fine ranging from VND 20,000,000 to VND 30,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at between VND 20,000,000 and under VND 30,000,000 or illegally profit from 30,000,000 VND. VND to less than 50,000,000 VND;

+ A fine ranging from VND 30,000,000 to VND 50,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at 30,000,000 VND or more or illegal profits are obtained from 50,000,000 VND or more. not subject to criminal prosecution.

+ May be affected revoke the right to use the licensepracticing certificate from 01 month to 03 months.

– As for the act of producing goods with counterfeit goods labels and packages as above, the above will be handled as follows: (Article 12 of Decree Decree 98/2020/ND-CP)

+ A fine ranging from VND 2,000,000 to VND 5,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at less than 3,000,000 VND or the illegal profits are less than 5,000,000 VND;

+ A fine ranging from VND 5,000,000 to VND 8,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at between VND 3,000,000 and under VND 5,000,000 or illegally profit from 5,000 VND. 000 VND to less than 10,000,000 VND;

+ A fine of from VND 8,000,000 to VND 15,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at between VND 5,000,000 and under 10,000,000 or illegally profit from 10,000,000 VND to less than 20,000,000 VND;

+ A fine ranging from VND 15,000,000 to VND 25,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at between VND 10,000,000 and under VND 20,000,000 or illegally profit from 20,000,000 VND to less than 30,000,000 VND;

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+ A fine ranging from VND 25,000,000 to VND 40,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at between VND 20,000,000 and under VND 30,000,000 or illegally profit from 30,000,000 VND. VND to less than 50,000,000 VND;

+ A fine ranging from VND 40,000,000 to VND 50,000,000 shall be imposed in cases where the counterfeit goods are equivalent to the quantity of the real goods valued at 30,000,000 VND or more or illegal profits are obtained from 50,000,000 VND or more. not subject to criminal prosecution. And be deprived of the right to use the license, practice certificate or suspend the violating production activities from 03 months to 06 months.

4.3. Criminal handling:

In addition to administrative sanctions, civil, individuals or organizations that forge trademarks may be prosecuted for criminal liability for the following crimes:

Crime of producing and trading in counterfeit goods: (Article 192 Penal Code 2015)

Those who produce or trade in fake goods in one of the cases specified in Article 192 of the Penal Code 2015 may be subject to a fine ranging from VND 100,000,000 to VND 1,000,000,000

Committing the crime in one of the following circumstances, the offenders shall be sentenced to between 07 and 15 years of imprisonment:

+ Counterfeit goods are equivalent to the quantity of real goods or goods with the same technical features and uses worth 500,000,000 VND or more.

+ Illegal profit 500,000,000 VND or more.

+ Kills 2 or more people.

+ Inflicting injury or causing harm to the health of 02 or more people with a total injury rate of 122% or more for these persons.

+ Causing property damage of VND 1,500,000,000 or more.”.

Crime of infringing industrial property rights: (Article 226 Penal Code 2015)

– Anyone who intentionally infringes upon industrial property rights with respect to a trademark or geographical indication being protected in Vietnam, whose subject matter is counterfeit trademark or geographical indication with commercial scale or revenue; Illegal profits ranging from VND 100,000,000 to under VND 300,000,000 or causing damage to the owner of the mark or geographical indication from VND 200,000,000 to under VND 500,000,000 or infringing goods valued at from 200,000 VND. 000 VND to less than 500,000,000 VND, the offenders shall be subject to a fine of between VND 50,000,000 and 500,000,000 or a non-custodial reform for up to 3 years.

– In case of an organized crime, committing the crime twice or more, earning an illegal profit of VND 300,000,000 or more, Causing damage to the owner of the mark or geographical indication 500,000,000 VND or more; violators valued at VND 500,000,000 or more shall be subject to a fine of between VND 500,000,000 and 1,000,000,000 or a prison term of between 6 months and 3 years.

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