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Examination/supervision of goods
This measure of examination/supervision of goods by the customs authority for the purpose of discovering the suspectedly IPR infringing goods shall be taken at the request of the holder of a right protected in Vietnam in order to collect information to exercise the right to request for the measure of stay of the completion of customs procedures to be taken

CHART OF APPLICATION OF THE MEASURE FOR CONTROL OF IMPORTS AND EXPORTS

(1)

Right holder files either directly or through an industrial property agent an application for halting the completion of customs formalities (Article 34 Decree 105/2006/NĐ-CP).

(2)

Receiving and Checking the application: (i) evidence proving the right holder status of the applicant, (ii) information about the suspected goods or in order to detect IPR infringing goods (Article 23, Article 24, Article 25 of Decree 105/2005/NĐ-CP, clause 3 Article 48 Decree 154/2005/NĐ-CP)

(3)

The applicant must deposit an amount of money equal to 20% of the value of the shipment or 20 million dong (in case the value of the shipment cannot be identified) or a document of guarantee from a bank/credit institution (Article 217 of the IP Law).

(4)

The customs authority issues a notice of refusal of the application for examination/control of imports and exports if the applicant fails to meet the requirements set out in points (2) and (3).

(5)

The customs authority issues a notice of acceptance of the application for examination/control of imports and exports if the applicant meets the requirements set out in points (2) and (3).

(6)

Customs authority takes the examination/control measures set out in Article 26 of the Customs Law, Articles 13, Articles 14 of Decree 154/2005/NĐ-CP.

(7)

Upon discovering the suspected goods, the customs authority shall issue a decision to halt the completion of customs formalities (either at the request of the IPR holder or to exercise the power to impose administrative penalties); and

(8)

To give notice to the IPR holder and the owner of the goods shipment of the halting of the completion of customs formalities for the shipment; specifying the names, addresses, fax numbers and telephone numbers of the parties; reason for and the time for halting the completion of customs formalities (clause 1, Article 37 of Decree 105/2006/NĐ-CP, Article 50 of Decree 154/2005/NĐ-CP, Article 219 of the IP Law).

(9)

To take the halting measure and leave time for related parties to produce evidence, arguments, documents and examine and verify the IPR-related legal status in order to determine whether or not an act of IPR infringement has been committed or not (Article 51 of Decree 154/2005/NĐ-CP).

(10)

The customs authority shall continue the completion of the customs formalities when:
(i) The results of determination of the IPR-related legal status reveal that the halted shipment does not infringe upon the IPRs,
(ii) A decision is issued by the IPR dispute resolution authority confirming that the halted shipment does not contain IPR infringing goods,

(11)

If the customs authority concludes that the halted goods really infringe upon IPRs, the goods owners and the goods shall be dealt with either Under (12) or Under (13) if so requested by the IPR holder.

(14)

If under (11) the right holder does not initiate a civil lawsuit; and

(15)

The Customs authority does not decide to consider imposing an administrative penalty (Articles 214, 215 of the IP Law) the shipment shall be released for completion of customs formalities (Article 219 of the IP Law).

(16)

Customs authority shall continue completing customs formalities when:
(i) An application for examination/control of imports and exports is rejected; or
(ii) The applicant withdraws the application for examination/control of imports and exports; and application for halting the completion of customs formalities, or
(iii) Upon the expiry date of the halting period, the Customs authority does not receive an application for settlement of the IPR Infringement from the applicant or a document from a State competent agency or from the court confirming that they have received an application for settlement of the IPR infringement relating to the halted shipment; or
iv) In cases referred to in (10)
(v) The applicant for halting does not initiate the civil lawsuit; or
(vi) The Customs authority does not accept the case for settlement in accordance with the procedures for dealing with administrative offences; or
(vii)A decision on halting the completion of customs formalities is suspended or revoked under a complaint settlement decision.
(Clause 3, Article 218 of the IP Law, Article 52 of Decree 154/2005/NĐ-CP, clause 1, Article 36, Article 37 of Decree 105/2006/NĐ-CP, Article 219 of IP Law)