On 06 March 2020 the Ministry of Finance issued Circular No. 13/2020/TT-BTC (new Circular 13) amending and supplementing a number of provisions of Circular No.13/2015/TT-BTC dated 30 January 2015 on inspection, supervision and suspension of customs procedures for imported and exported goods that are subject of requests for intellectual property rights protection, and control of exporting and importing counterfeit goods and goods infringing intellectual property rights (IPRs). The amendments will become effective on 20 April 2020.
Important changes introduced in Circular 13 are summarised below:
E-filing of Requests for Customs Recordal or Renewal for Customs Recordal or Suspension of Customs procedures
Requests for Customs Recordal or Renewal for Customs Recordal or Requests for Suspension of Customs procedures shall be filed via the e-Customs system. However, the e-filing portal for this procedure is not available at present. It is being updated and will be available soon. Until then, Requests and accompanying documents shall continue to be filed directly with the Customs Office.
Dossier for Customs Recordal
Similar to the requirements under the former regulations, according to the new Circular 13, the dossier for Custom Recordal shall include:
- Application for Customs Recordal;
- Documents proving the IPRs protected in Vietnam (such as Certificates of registration of intellectual property subjects);
- Description of goods infringing IPRs, photos, characteristics to distinguish the genuine goods comparing to the infringing goods;
- List of legitimate/ authorized exporters and importers; List of potential importers and exporters of goods infringing IPR;
- Power of Attorney.
However, some more additional information and formalities of documents are now required, namely:
Power of Attorney
Previously, notarised Power of Attorney documents have been accepted. It is now clearly required that the Power of Attorney must be legalized if the authorizing party is a foreign entity, except in cases this requirement is exempted in accordance with the international agreements to which Vietnam is a party.
Under former Circular No.13/2015/TT-BTC, the HS code of the goods for IP protection is categorized as “optional”. However, in the new form of Application for Customs Recordal introduced in the new Circular 13, the HS code is no longer “optional”. Accordingly, the Customs may require the application to include the HS code of related goods subject to Customs monitoring.
This may be a huge burden to brand owners applying for Customs Recordal. The Customs Recordal may cover a wide range of goods. In addition, determining the correct HS Code for each particular goods item may not be easy and straightforward.
Deadline for renewal of Customs Recordal
Request for renewal of the Customs Recordal must be submitted at least 20 days prior to the expiration date specified in the notification of acceptance of such Customs Recordal.
Customs Recordal is a pre-condition for requesting suspension of Customs procedures
Under the former Circular 13, the Customs may accept to handle request for suspension of Customs procedures of a particular consignment of goods even in case no Customs Recordal has been in place.
Under the new Circular 13, in case the IPR holder has not requested for Customs Recordal, such a request for Customs Recordal must be filed before, or at the same time with the filing of the request for suspension of Customs procedures of a particular consignment of goods. If the request for Customs Recordal is pending for acceptance, the dossier for Customs Recordal of the related IPRs must be enclosed with the request for suspension of Customs procedures of the consignment.
Extension of suspension of Customs procedures
Under the former Circular 13, after the 10-day period of suspension expires, the right holder may request for an extension of suspension of up to 10 days from decision of extension. Under the new Circular 13, it now is set out that the extension shall be no more than 10 working days from the end of the suspension period. Accordingly, the total time for suspension of Customs procedure shall not exceed 20 days, which is compatible with the regulation of Law on Intellectual Property.
More detailed guidance on monitoring and inspection by the Customs
The new Circular 13 provided more detailed guidance for the Customs in monitoring and inspecting imported and exported consignments of goods that may be subject to IPR protection request, particularly:
When checking the dossier for Customs clearance, the Customs shall inspect information declared about the goods, particularly names of goods, trademarks, descriptions, specifications, composition, model, code/ notation, features and functions of goods, value of goods, names of importers/ exporters, origin of goods and transporting route in order to determine their conformity and to detect suspected consignments.
In case, based on the above inspected information, the imported/ exported goods are suspected to be counterfeit or IPR infringing goods, and if the unauthorised importer or exporter of the consignment is found in the List of potential importer/ exporter of IPR-infringing goods included in the Customs Recordal, the customs authority shall notify the IPR holder of the consignment.
If the unauthorised exporter or importer is not found in the List of potential importer/ exporter of IPR-infringing goods, the customs authority shall notify the IPR holder of the suspected consignment only after it has carried out inspection of physical goods and found reasons for suspecting that the goods are counterfeit or infringing goods.
During the process, the Customs authority may decide to carry out an inspection of physical goods, as well as further verification and investigation, if necessary, if it has sufficient reasons for suspecting that the goods are counterfeit or infringing.
Upon inspection, if it is determined that the imported/ exported goods have no signs of being counterfeit or infringing goods, the customs authority shall carry on customs procedures for the consignment.
In summary, the new Circular 13 has provided further specific guidance in Customs procedures that hopefully will help facilitate the detection, interception and seizure of counterfeit and infringing goods at the border. However, the new Circular also imposed some additional requirements in terms of information and documents that may be burdensome to IPR holders in applying for Customs control measures. In light of the new requirement under the new Circular 13, it is also recommended that IPR holders should proceed with Customs Recordal in advance in order to timely and effectively attend to and pursue the handling of any suspected consignment.