Customs can provide a last line of defence against infringement, stopping existing infringing goods from leaving or entering a country. This brief article gives an overview of Vietnam’s existing customs controls and gives some advice on how SMEs can work with the authorities to prevent the spread of infringing goods.
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Customs in Vietnam
Vietnamese customs laws prohibit the import of goods which infringe IP rights registered within Vietnam. To this end, customs authorities have the power to impose fines and confiscate infringing goods which have been stopped at the border. Customs authorities can also arrange for criminal proceedings to be brought against infringers for cases involving copyright or trade mark infringement. So far these powers extend only to imports and as such, customs authorities have no power to check and hold infringing products being exported (as in China for example).
Using customs controls to block counterfeits
Registration with customs authorities in Vietnam is not a mandatory requirement, however it is often advisable to add yourself to their database as doing so will enable customs officers to recognise counterfeit versions of your products, and improve the chances of suspect shipments being stopped at the border. Furthermore, if shipments are known to be en-route, rights holders can work with customs to ensure they are detained before being released onto the market (this would of course entail significant investigative work on the rights holders behalf however).
In theory, all IPRs can be registered with the Vietnamese customs authority, in practice however, only trade marks, geographical indications, and copyrights and related rights are picked up. This is perhaps due to the relative inexperience of customs officials with more complex forms of IP such as invention patents and industrial designs.
In order to register with customs, a customs recordal must be filed with the General Department of Customs in Vietnamese, containing the following documents:
- Certified copies of your IP certificates of registration, e.g. a trade mark registration certificate
- Documents relevant to the goods you wish to register with customs, including; a list of authorised importers/exporters, mode of import/export of genuine goods, descriptions of how to distinguish genuine goods from infringing copies, documents on the origin of genuine goods, and pictures of genuine goods.
- A notarised and legalised power of attorney, where the application is filed by a local IP agent
- Any supporting documents, e.g. information on estimated times and location of import and export, expert opinions on known infringing goods, any sanctioning decisions made by enforcement agencies in previous cases of infringement of the goods you are registering, where applicable.
Confirmation is usually given by the customs office within 20 days of application.
Once registered, IPRs remain in the database for one year, extendable for a further year upon request. After this 2 year period the rights must be filed anew to continue monitoring operations.