Trademark infringements are increasingly occurring, thereby affecting the rights and interests of organizations and individuals. Thus, depending on the extent of infringement acts, administrative or criminal penalties will be carried out.
HOW IS TRADEMARK INFRINGEMENT SUBJECT TO CRIMINAL PENALTIES?
Intellectual property right is the recognition by the State of organizations or individuals’ civil rights (personal rights & property rights) over a certain intellectual property; and intellectual property is protected as any other property. As protected by Vietnamese law, trademark infringement behaviors will be subject to administrative or criminal penalties.
Article 171 of the Criminal Code 1999 amended and supplemented in 2009 stipulates: Those who knowingly infringe upon industrial property rights over trademarks or geographical indications protected in Vietnam on a commercial scale will be subject to a fine of VND 50-500 million or a non-custodial reform for up to two years. In addition, committing the crime in one of the following circumstances, the offenders shall be subject to a fine of between VND 400 million and VND 1 billion or a prison term of between 6 months and 3 years:
- In an organized manner
- Committing the crime more than once
In addition, offenders may be subject to a fine of between VND 20 million and VND 200 million, banned from holding certain posts, practicing certain occupations or doing certain jobs for 1 to 5 years.
SUBJECTS AND OBJECTS OF CRIME
The subject of the offense: A subject of trademark infringements is a person who is at least 18 years of age, has full civil capacity and is primarily engaged in the production and trading of goods. The object of the offense: The object of trademark infringement is the economic management order, i.e. the regulations of the State on management in the field of protection of industrial property rights. The objects of this crime are trademarks, geographical indications protected in Vietnam.
ACTS OF TRADEMARK INFRINGEMENT
The objective behavior is the act of infringement of industrial property rights. Depending on the nature and extent of trademark infringement acts, different penalties are carried out. If the act of infringement has not yet been administratively sanctioned and has not yet caused serious consequences, it shall not be regarded as an offence. Acts of intentionally infringing upon industrial property rights may be implemented in various forms such as:
- Usurping or illegally using trademarks or geographical indications that are protected in Vietnam.
- Illegally using or exploiting the benefits of trademarks or geographical indications that are protected in Vietnam without the consent of the owner(s).
Only acts of infringing upon trademarks or geographical indications conducted on a commercial scale are subject to criminal sanctions. Inter-Ministerial Circular No. 01/2008/TTLT-TANDTC-VKSNDTC-BCA-BTP provides guidelines for criminal prosecution with regard to certain acts of infringements of intellectual property rights.
Accordingly, the commercial scale is calculated on the profit received or material damage of the owner(s) from the infringement of the trademarks or geographical indications. In addition, on the subjective side, offenders of trademark infringement perform their actions intentionally, i.e. they are aware that their behaviors can cause serious consequences, wanting or not wanting but neglecting consequences.
In addition, the offender must have a new business purpose before his/ her crime is constituted. If the act of trademark infringement is not for business purposes but for other purposes, it shall not fall into the above criminal case. Thus, acts of trademark infringement in general and acts of infringement of industrial property rights are subject to administrative or criminal penalties depending on the level and nature of the acts. Criminal penalties of such infringements are aimed at protecting the rights and interests of trademark owners, geographical indications as well as interests of consumers.
PHAN LAW VIETNAM
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