On 22 September 2006, the Government promulgated Decree no. 106/2006/NĐ-CP on penalties for administrative offence in the industrial property sector. The Decree has officially taken effect since 21 October 2006. Scope of application of the Decree concerns regulations on the acts of administrative offence in the industrial property sector, forms and levels of penalties, competence, procedures for imposition of penalties, and measures for remedying consequences.

Highlights of the Decrees include:

• Any offender (individual/organisation) shall be subject to one of the two main forms of penalty: a warning or a fine for each administrative offence. A warning: shall apply to an unintentional offence, a minor offence, an offence committed for the first time with mitigating circumstances, or an administrative offence committed by a minor from the age of fourteen to below sixteen years. A fine: decision on the amount of the applicable fine from the stipulated scale of fines shall be made by the authorized person depending on the nature and seriousness of the offence. The specific fine amount for an administrative offence in the industrial property sector shall be the average fine in the stipulated scale in the case of an offence with neither mitigating nor aggravating circumstances. The average fine within any one scale of fines shall be the amount after dividing the sum of maximum fines and minimum fines in two. In the case of an offence with mitigating circumstances, the amount of the fine may be reduced but not to less than the minimum penalty within the stipulated scale. In the case of a breach with aggravating circumstances, the amount of the fine may be increased but not to more than the maximum penalty within the stipulated scale.

• Depending on the nature and seriousness of the offence, the offender may also be subject to one or more additional penalties as follows: Confiscation of the evidence, means of committing the offence; confiscation of the counterfeit mark or counterfeit geographical indication, materials and means principally used for manufacture or trading of the counterfeit mark or counterfeit geographical indication; Confiscation of any protection titles and documentation proving the industrial property rights which have been altered or erased; Confiscation of any papers, documentation which have been altered, erased or forged; Suspension of trading of the products or services in offence for a specified period.

• In addition to the above-mentioned main and additional forms of penalty, an offender may also be subject to one or more of the following mandatory measures in order to remedy consequences of the offence: Compulsory elimination of the infringing elements in the products, goods or business means; Compulsory destruction or distribution or use for non-commercial purposes of goods bearing a counterfeit mark or counterfeit geographical indication, or of the materials and means principally used for manufacture or trading of such goods on condition that this does not adversely impact on the ability of the industrial property right holder to exercise its right; Compulsory destruction of offence goods causing harm to humans health, animals, crops and to the environment; Compulsory expulsion from the territory of Vietnam of infringing goods in transit or compulsory re-export of goods bearing a counterfeit mark, counterfeit geographical indication, materials and means principally used for manufacture or trading of such goods after having eliminated the infringing elements from the goods; Compulsory addition of indications of industrial property rights protection; Compulsory correction to the public on the mass media of incorrect indications about industrial property rights; Compulsory recovery of dispersed exhibits and means.

• The authorized person shall, on detecting an offence, immediately order the immediate termination of such offence, clearly explain to the offender the regulations on dealing with administrative offence in the industrial property sector and other relevant law regulations on industrial property and request the offender to conform to the law regulations.

• When an offence is subject to a warning, the authorized person shall not take the minutes but immediately make a decision on a warning at the place where the offence occurs and such decision shall be made in writing.

• When an offence is subject to a fine, except in a case where simple procedures are applied, the authorized person imposing the penalty shall take the minutes of the administrative offence in accordance with regulations as provided for in the Ordinance of Dealing with administrative offence, and the person must enable the offenders to express their opinions about their act of offence.

• The making of a decision imposing a penalty and the consequence of such decision must comply with regulations as provided for in the Ordinance of Dealing with Administrative Offence. A decision imposing a penalty must be sent to the concerning offender within a time-limit of three days from signing date of the decision. If a penalty decision includes additional forms of penalty that require procedures for the establishment, amendment, suspension or rescission of validity of a protection title or any other relevant certificate, such decision must be sent to the Inspectorate of the Ministry of Science and Technology, the National Office of Intellectual Property for co-ordination and monitoring of enforcement.

In case of detection of an offence but involving a dispute or protest about the rights holder, protectability or scope of protection of industrial property rights, the agency handling the case shall request the concerning parties to resolve their dispute at the competent agency. The authorized person dealing with the administrative offence shall be responsible to make a conclusion about the offence within a time-limit of 10 days from the date of receipt of the final conclusions from the competent agency to resolve such dispute or protest.