How to Temporary Suspension Customs Clearance Procedures for Goods Subject to Intellectual Property Rights Protection?

The import and export of counterfeit goods or goods that violate intellectual property rights have been causing huge loss to the intellectual property rights owner. The government’s process to control such will help utilize the resources in the society and encourage the innovative companies to invest in products in quality, designs, build trademarks… and ensure their intellectual property rights are protected and they could benefit from such. When the owner of property rights scans the market and find the violation of intellectual property rights, they could appoint intellectual property attorney to work with authorities and have proper legal solutions, including requesting the customs authority to suspend the customs clearance.

As part of the international integration process into world trade, Vietnam has gradually issued legal instruments to strengthen tools for managing the potential violations especially in intellectual property areas.

On March 6, 2020, the Ministry of Finance issued Circular no. 13/2020/TT-BTC on amending and supplementing a number of articles of Circular no. 13/2015/TT-BTC dated January 30, 2015 providing for inspect, supervise and temporarily suspend customs procedures for exports and imports subject to intellectual property protection; controlling counterfeit goods and goods infringing intellectual property rights.

Under point b, clause 1, Article 1 of Circular no. 13/2020/NTT-BTC, customs control of counterfeit goods and goods infringing intellectual property rights means the application of professional customs control measures or/and other professional measures implemented by customs authority according to the provisions of law to prevent and combat smuggling and illegal transportation of goods being counterfeit goods and goods infringing intellectual property rights in the geographical areas of customs operation. Compared with the provisions of Circular no. 13/2015/TT-BTC, the scope of customs control for counterfeit goods and goods infringing intellectual property rights is expanded, not only borders, non-tariff areas.

The Ministry of Finance supplements cases of refusal to receive applications for inspection and supervision of export and import goods that require protection of intellectual property rights of organizations or individuals, specifically: may refuse to accept applications if additional submissions are within 10 working days from the date of the notice of additional submission.

Besides, amending and supplementing regulations on handling of goods showing signs of intellectual property rights infringement. Within 03 working days after receiving the notice of goods showing signs of infringement of intellectual property rights of the customs office, if the intellectual property right holder or the lawfully authorized person does not have the request for suspension of customs procedures is completed, the customs authority will continue to carry out the customs procedures. In case the intellectual property right owner or the lawfully authorized person does not have a written request for temporary suspension of customs procedures but pays a sum of money or guarantee documents as prescribed or have a written request for temporary suspension of customs procedures but do not pay a sum of money or guarantee documents as prescribed, the Sub-department of Customs where customs procedures are carried out does not suspend customs procedures for goods, unless it is detected counterfeit goods on intellectual property. In contrast, if the intellectual property rights owner of goods requests the suspension of customs procedures, the Sub-department of Customs where the customs procedures are carried out shall issue a decision on suspension of customs procedures. In cases where there are sufficient grounds to identify goods infringing upon intellectual property rights, the Director of the Customs Sub-Department shall consider deciding to immediately apply handling measures prescribed in Articles 214 and 215 of the Law on Intellectual Property 2005, at the same time, coordinate with control forces at all levels to collect information, investigate and verify goods to handle according to regulations. The time limit for suspension of customs procedures is 10 working days from the date the customs authority issues a decision to suspend customs procedures. In addition, different from the previous regulations, the person who requests for temporary suspension of customs procedures may extend the time limit (if there is a plausible reason) if paying additional money or guarantee documents, the extended time limit; the extended period shall not exceed 10 working days from the expiry of the suspension period as prescribed in clause 8, Article 1 of Circular no. 05/2020/TT-BTC.

Regulations on suspension of customs procedures for detecting signs of infringement of intellectual property rights are provisions to protect goods that have been registered for intellectual property rights. Intellectual property is the most valuable type of intangible asset to every enterprise. When an enterprise has trademarks, inventions, industrial designs… applied to products that are registered for intellectual property rights, these intellectual property objects will become the property of the enterprise, and giving the company a lot of advantages on monopoly rights and protection policies and such should be protected properly with the help of intellectual property lawyers.

This Circular is effective from April 20, 2020. Organizations and individuals exporting or importing goods; Organizations and individuals that are owners of intellectual property rights, owners of genuine goods which are counterfeited or lawful representatives of owners need to follow and comply with the provisions of law to know and protect their rights.