Sanctions for counterfeit and counterfeit goods according to Vietnamese law

Many experts believe that one of the reasons why counterfeit goods are still "widespread" is because sanctions for these acts are lacking and not strong enough. There are also opinions that the problem lies in the effectiveness of enforcement. talent is not high. Below are some penalty regulations and difficulties in applying:

1. Regarding sanctions for administrative violations:

Decree No. 98/2020/ND-CP (from Article 9 to Article 12) regulating administrative sanctions for acts of producing and trading counterfeit goods with respect to prescribed use value and utility. at Points a, b, c and d, Clause 7, Article 3; Acts of producing and trading in counterfeit goods with labels and packaging specified in Point dd, Clause 7, Article 3. Depending on each case, the fine can range from 1 million VND to 100 VND. million dong. At the same time, if the violation is committed for some special types of goods, the fine can be doubled. In addition, violators are also subject to additional penalties and remedial measures. This is the most direct and complete legal document to create a basis for sanctioning administrative violations of counterfeit and counterfeit goods.

In addition, the production and sale of counterfeit goods through certain methods and forms, especially through e-commerce websites and mobile phone applications, can be punished for business violations. business through the application, such as: Penalties for violations of "providing information, trading or selling counterfeit goods, goods or services that infringe intellectual property rights or goods and services prohibited from trading on the internet environment” (point c, clause 3, Article 63 of Decree No. 98/2020/ND-CP); The act of "scamming customers on e-commerce websites or mobile applications" (Point a, Clause 6, Decree No. 98/2020/ND-CP)...

It can be seen that in Decree No. 98/2020/ND-CP, Articles 9 and 10 (counterfeit goods in terms of use value and utility) are regulations on penalties for counterfeit goods in terms of content, while Article 11 and Article 12 (counterfeit goods with labels and packaging) is the penalty regulation for counterfeit goods in terms of appearance. In fact, there is a difficult problem because it is easy to cause confusion with the regulations in Decree No. 119/2017/ND-CP, specifically: Point a, Clause 1, Article 5 of Decree No. 119/2017/ND-CP has Regulations on penalties for administrative violations in the production, import, and trade of standard substances and measurement standards.not suitable with technical measurement requirements" have been announced by organizations and individuals. This regulation in Decree No. 119/2017/ND-CP does not apply to counterfeit goods but only applies to products that "do not conform to announced technical measurement requirements". However, in Clause 7, Article 3 of Decree No. 98/2020/ND-CP, counterfeit goods are described as "having value and utility." incorrect compared to the use value or utility" or "has at least one of the quality criteria or basic technical characteristics or quantity of the main substance that creates the use value or utility of the goods." only reach 70% or less compared to the minimum level specified in technical regulations or quality standards” announced. This easily leads to confusion in the application of the law between handling counterfeit goods and handling goods that do not conform to technical measurement requirements.

Currently, the draft Decree on amending Decree No. 98/2020/ND-CP is being completed to submit to the Government for promulgation. The draft was developed towards the important goal of maximum protection of consumer rights, including limiting counterfeit and counterfeit goods. One of the regulations added to the draft is Article 46b - violations of consumer rights protection in transactions with individuals conducting independent, regular commercial activities without business registration. . This provision stipulates that the act of "not ensuring the safety, measurement, quantity, volume, quality, use of the products, goods, and services that one sells or provides to consumers" can be fined from 1 million VND to 3 million VND. This is a slightly low penalty. This regulation is intended to fill in the gap regarding penalties for selling goods in general and selling counterfeit goods in particular through personal websites without business registration. Hopefully, the amendments and supplements to the draft will contribute to minimizing violations in commercial activities and protecting consumer rights.

In addition, if violations of counterfeit goods show signs related to unfair competition, they can also be handled according to the provisions of Decree No. 75/2019/ND-CP dated December 26, 2019. 9/2019 of the Government regulating penalties for administrative violations in the field of competition.

2. Regarding criminal proceedings:

Violations of counterfeit goods can be prosecuted for the following crimes:

- Prosecution of crimes of producing and trading counterfeit goods according to Article 192, Article 193, Article 194, Article 195 of the 2015 Penal Code. Accordingly, depending on each case, individuals can be fined up to 1 billion dong, life imprisonment; Legal entities may be fined up to 15 billion VND, banned from doing business, banned from operating in certain fields or banned from raising capital for up to 03 years. It can be seen that this is a relatively high penalty for producing and trading counterfeit goods.

- Prosecuted for infringement of industrial property rights in Article 226 of the 2015 Penal Code. Accordingly, individuals can be fined up to 500 million VND, banned from holding positions, practicing professions or doing jobs. certain up to 05 years, imprisonment up to 03 years; Legal entities may be fined up to 5 billion VND, suspended from operations for up to 02 years, banned from doing business, banned from operating in certain fields or banned from raising capital for up to 03 years.

- Prosecuted for deceiving customers in Article 198 of the 2015 Penal Code with the content stipulating "any person who, in the purchase or sale of goods or provision of services, weighs, measures, measures, counts, or calculates stalls." goods, services or use other deceitful tricks...”.