No Criminal Code 1999[1] Criminal Code 2015[2]
1 Article 170.- Breaching the regulations on the granting of industrial property protection deeds

1. Those who are competent to grant protection deeds and breach the law provisions on the granting of industrial property protection deeds, have already been disciplined or administrative sanctioned for such act but still commit it, causing serious consequences, shall be subject to non-custodial reform for up to three years or to a prison term of between six months and three years.

2. Committing the crime in one of the following circumstances, the offenders shall be sentenced to from two to seven years of imprisonment:

a) In an organized manner;

b) Committing the crime more than once;

c) Causing very serious or particularly serious consequences.

3. The offenders may also be banned from holding certain posts for one to five years

 

 

2 Article 170a. Infringing upon copyright and related rights

1. Those who without permission of holders of copyright or related rights, commit either of the following acts of infringing upon copyright or related rights currently protected in Vietnam on a commercial scale, shall be imposed a fine of between fifty million and five hundred million dong or subject to non-custodial reform for up to two years:

a/ Reproducing works, phonograms or video recordings;

b/ Distributing to the public copies of works, phonograms or video recordings.

2. Committing the crime in either of the following circumstances, offenders shall be imposed a fine of between four hundred million and one billion dong or sentenced to between six months and three years of imprisonment:

a/ In an organized manner;

b/ Committing the crime more than once.

3. Offenders may also be imposed a fine of between twenty million and two hundred million dong, banned from holding certain posts or practicing certain professions or performing certain jobs for between one and five years.

 

Article 225. Infringement of copyrights and relevant rights

1. A person who, without the consent of the holders of copyrights and relevant rights, deliberately commits any of the following acts which infringe upon copyrights and relevant rights protected in Vietnam on the commercial scale or earns an illegal profit of from VND 50,000,000 to under VND 300,000,000 or causes a loss of from VND 100,000,000 to under VND 500,000,000 to the holders of such copyrights and/or relevant rights, or with the violating goods assessed at from VND 100,000,000 to under VND 500,000,000 shall be liable to a fine of from VND 50,000,000 to VND 300,000,000 or face a penalty of up to 03 years’ community sentence:

a) Reproducing works, phonograms or video recordings;

b) Distributing to the public copies of works, phonograms or video recordings.

2. This offence committed in any of the following cases shall carry a fine of from VND 300,000,000 to VND 1,000,000,000 or a penalty of 06 – 03 years’ imprisonment:

a) The offence is committed by an organized group;

b) The offence has been committed more than once;

c) The illegal profit reaped is VND 300,000,000 or over;

d) The loss incurred by the holders of copyrights and relevant rights is VND 500,000,000 or over;

dd) The illegal goods are assessed at VND 500,000,000 or over.

3. The offender might also be liable to a fine of from VND 20,000,000 to VND 200,000,000, prohibited from holding certain positions or doing certain works for 01 – 05 years.

4. Punishments incurred by a corporate legal entity that commits any of the offences specified in this Article:

a) commits the acts specified in Clause 1 of this Article on the commercial scale or  earns an illegal profit of from VND 200,000,000 to under VND 300,000,000 or causes a loss of from VND 300,000,000 to under VND 500,000,000 to the holders of such copyrights and/or relevant rights, or with the violating goods assessed at from VND 300,000,000 to under VND 500,000,000; earns an illegal profit of from VND 100,000,000 to under VND 200.000.000 or causes a loss of from VND 100,000,000 to under VND 300.000.000 to the holders of such copyrights and/or relevant rights or with the violating goods assessed at from VND 100.000.000 VND to under VND 300,000,000 VND but have been applied the administrative sanction for one of the aforementioned acts stipulated in this Article or have been sentenced for such crime, not yet entitled to criminal record remission but repeat their violations shall be liable to a fine of from VND 300,000,000 to VND 1,000,000,000;

b) A corporate legal entity that commits this offence in the case specified in Clause 2 of this Article shall be liable to a fine of from VND 1,000,000,000 to VND 3,000,000,000 or has its operation suspended for 06 – 24 months;

c) The violating corporate legal entity might also be liable to a fine of from VND 100,000,000 to VND 300,000,000 is prohibited from operating in certain fields or raising capital for 01 – 03 years

3 Article 171. Infringing upon industrial property rights

1. Those who intentionally infringe upon industrial property rights to marks or geographical indications currently under protection in Vietnam on a commercial scale, shall be imposed a fine of between fifty million and five hundred million dong or subject to non-custodial reform for up to two years.

2. Committing the crime in either of the following circumstances, offenders shall be imposed a fine of between four hundred million and one billion dong or sentenced to between six months and three years of imprisonment:

a/ In an organized manner:

b/ Committing the crime more than once.

3. Offenders may also be imposed a fine of between twenty million and two hundred million dong, banned from holding certain posts or practicing certain professions or performing certain jobs for between one and live years

Article 226. Infringement of industrial property rights

1. A person who infringes upon industrial property rights to a trademark or geographical indication which are protected in Vietnam in the form of counterfeit trademark and/or geographical indication with a commercial scale and earns an illegal profit of from VND 100,000,000 to under VND 300,000,000 or causes a loss of from VND 200,000,000 to under VND 500,000,000 to the owner of such trademark or geographical indication, or with the violating goods assessed at from VND 200,000,000 to under VND 500,000,000 shall be liable to a fine of from VND 50,000,000 to VND 500,000,000 or face a penalty of up to 03 years’ community sentence.

2. This offence committed in any of the following cases shall carry a fine of from VND 500,000,000 to VND 1,000,000,000 or a penalty of 06 – 03 years’ imprisonment:

a) The offence is committed by an organized group;

b) The offence has been committed more than once;

c) The illegal profit reaped is VND 300,000,000 or over;

d) The loss incurred by the owner of the brand name or geographical indication is VND 500,000,000 or over;

dd) The illegal goods are assessed at VND 500,000,000 or over.

3. The offender might also be liable to a fine of from VND 20,000,000 to VND 200,000,000, prohibited from holding certain positions or doing certain works for 01 – 05 years.

4. Punishments incurred by a corporate legal entity that commits any of the offences specified in this Article:

a) commits the acts specified in Clause 1 of this Article on the commercial scale or  earns an illegal profit of from VND 200,000,000 to under VND 300,000,000 or causes a loss of from VND 300,000,000 to under VND 500,000,000 to the holders of such trademark or geographical indication, or with the violating goods assessed at from VND 300,000,000 to under VND 500,000,000; earns an illegal profit of from VND 100,000,000 to under VND 200.000.000 or causes a loss of from VND 100,000,000 to under VND 300.000.000 to the holders of such trademark or geographical indication or with the violating goods assessed at from VND 100.000.000 VND to under VND 300,000,000 VND but have been applied the administrative sanction for one of the aforementioned acts stipulated in this Article or have been sentenced for such crime, not yet entitled to criminal record remission but repeat their violations shall be liable to a fine of from VND 500,000,000 to VND 2,000,000,000;

b) A corporate legal entity that commits this offence in the case specified in Clause 2 of this Article shall be liable to a fine of from VND 2,000,000,000 to VND 5,000,000,000 or has its operation suspended for 06 – 24 months;

c) The violating corporate legal entity might also be liable to a fine of from VND 100,000,000 to VND 500,000,000, be prohibited from operating in certain fields or raising capital for 01 – 03 years.

The criminal code 2015 deleted the crimes of breaching the regulations on the granting of industrial property protection deeds. This is the result of practical implementation of Criminal Code 1999 in more than 15 years since the effective date of this code. The lawmakers realized that it is not necessary to punish the person who are competent to grant protection deeds to industrial property objects in Vietnam. Therefore, from the effective date of the criminal code 2015 (January 01, 2018), breaching the regulations on the granting of industrial property protection deeds will not be considered as crime.

The criminal code 2015 still keep 02 (two) Articles for 02 (two) crimes on the intellectual property rights including the infringement of copyrights and related right and another one is infringement of industrial property right with the same infringement activities, namely:

  • In regard of copyright and related rights: the activities of i) reproducing works, phonograms or video recordings and ii) distributing to the public copies of works, phonograms or video recordings;
  • In regard of industrial property rights: the activities of infringement against the trademark and geographical indication which are currently protected in Vietnam in the form of counterfeit trademark or counterfeit geographical indication only.

However, there are 02 (two) majority differences between Criminal Code 1999 and Criminal Code 2015 which shall be considered as the revolution in lawmaking until now:

  • Firstly: The criminal responsibility of corporate legal entity. From January 01st, 2018, the corporate legal entity shall bear the criminal responsibility for the crimes which are performed by a corporate with the conditions of i) the criminal offence is committed in the name of the corporate legal entity; or ii) the criminal offence is committed in the interests of the corporate legal entity; iii) the criminal offence is under instructions or approval of the corporate legal entity; iv) the time limit for criminal prosecution has not expired. The corporate legal entity shall bear the criminal responsibility for the infringement upon copyrights and/or related rights and the infringement upon trademark and geographical indication.
  • Secondly: The signs of crimes relating to the intellectual property rights are very clear. Although, the criminal code 2015 use the sign of “on the commercial scale” which is the same with the criminal code 1999 and has not been guided clearly until now, the criminal code 2015 used another signs for settling the crimes on intellectual property including the illegal profit, the loss/damage of the holders/owners of copyrights, related rights and trademark, geographical indication or the amount of the violating goods. In addition, the history of crime or administrative violation of the infringer will be a legal basis for settling the violation. The quantities of these signs have been pointed out, therefore, it will be easy for the owners as well as the authority state bodies in settling the infringement actions against intellectual property. However, regarding to the sign “on the commercial scale”, it is required to have the detail guideline on this sign in the form of a joining circular between Ministry of Justice (MOJ), Ministry of Public Security (MPS), The Supreme People’s Court of Vietnam (SPC) and The Supreme People’s Procuracy of Vietnam (SPP) or a resolution of SPC.

In any way, we believe that the criminal code 2015 will become the effective legal basis against the crimes including the crimes on the intellectual property rights in Vietnam.

[1] Criminal Code 1999 means Criminal Code which has been issued on December 21th, 1999 and Law amending and supplementing some articles of Criminal Code 1999 which has been issued on June 19th, 2009

[2] Criminal Code 2015 means Criminal Code which has been issued on November 27th, 2015 and Law amending and supplementing some articles of Criminal Code 2015 which has been issued on June 20th, 2017

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