New enforcement decree in Vietnam

A new Decree 198 updates enforcement rules based on new commercial practices, especially online. It involves:

•           Clarifying unclear provisions

•           Adding consistency with subsequent legislation enacted after 2013.

Examples of what Decree 198 covers include:

1.         The definition of counterfeit goods is amended. A detailed new definition is created. It especially includes goods with no active ingredients, as well as goods bearing fraudulent label information and counterfeit labels and packaging. A consistency change is the removal of the term "Intellectual property counterfeit goods” which comes from Article 213 of the 2005 Intellectual Property Law from the definition of counterfeit goods. These are already handled by another Decree No. 99/2013/ND-CP on administrative IP violations. This change removes an overlap/duplication, so avoids different outcomes arising from different decrees/laws.

2.         Administrative fines are mainly increased under the new decree. Some minor violations are moved to lower levels of fine (acts of trading counterfeits, goods, services infringing IP rights and banned goods, services on the internet).

3.         A new offence of trading counterfeit goods online is included with fines specified. Specifically this change is in adding e-commerce applications on mobile platforms (“mobile applications”) as the subject of e-commerce IP violations. Compulsory removal of mobile application from application stores is one of the remedial measures.

4.         The administrative enforcement role of the General Department of Market Surveillance under the Ministry of Industry and Trade (MMB) is confirmed. 

The new rules take effect on 15th October. Many administrative IP cases are filed with this department both ex officio cases and complaint based cases. Sometimes administrative complaints ask the case be dealt with by the MMB, in other cases, in collaboration with other authorities.