Recommendations regarding Transport enterprises experience hardship as they get fined by Customs agency for infringement of intellectual property rights of goods in transit.
Mon, 20 Jan 2020 16:24:00 | Print | Email Share:
Name of recommendations: Recommendations regarding Transport enterprises experience hardship as they get fined by Customs agency for infringement of intellectual property rights of goods in transit.
Status: Responded
Recommended by units: The Import-Export Service and Trading Co., Ltd (Dong Da District, Hanoi).
Official letter: No. 2433 / PTM - KHTH, dated: 2019-10-16
Recommended contents:
Import- Export Services and Trading Co., Ltd (the Company), an international logistics service provider, specializes in transit service on Southeast Asia routes (Hong Kong - Shenzhen - Vietnam - Laos - Thailand - Malaysia - Singapore). It has a professional fleet of container trucks and Vietnam- Lao-Cambodia cross-border transport permits.
In 2017, the company acted as a carrier in transporting transit goods for a neighboring company located in Lao. As soon as the container was just hoisted from a Chinese truck to the Company’s one in the Customs Examination Area at Huu Nghi border-gate, it was kept immediately for inspection. After examining, Customs Agency informed that the goods which belonged to the foreign shipper in the container violated the intellectual property rights. This leaded to the Company’s receiving administrative sanctions even though it just played the role as the transport service provider.
The Company was surprised with the penalty they got for infringing intellectual property rights of transit goods as they claimed that this penalty was completely inconsistent with Vietnamese Law and international practices, for the following reasons:
Article 2 of the agreement on the transit of goods between Vietnamese Government and Lao Government stipulates: " Transit of goods is the transportation of goods owned by legal entities or natural person of the requesting country transiting through the territory of the country of transit by road "" and "" The shipper is a legal person or a natural person that owns the transit goods "
Clause 4, Article 241 of the Commercial Law also states: " Transit of goods means the transportation of goods owned by foreign organizations and individuals through the Vietnamese territory "
Thus, with the above provisions, goods in transit containers with lead seals compressed are owned by foreign shipper. The subject of sanction in this case must be a foreign cargo owner company, who hired Vietnamese trader providing transit services.
According to the provisions of Point c, Clause 3, Article 43 of Decree 59/2018 / ND-CP on the obligations and interests of the transit carrier:" (iii) Take responsibility for keeping the goods intact during the transportation of goods in their original condition, with their packages and customs seals intact from the import border gate to the export border gate ". On the other hand, Point c, Clause 1, Article 294 of the Commercial Law also stipulates that the carrier is exempt from liability when "" The violation of one party is entirely due to the fault of the other".
With full awareness of compliance with the laws of Vietnam, international laws and practices on transit service activities, the Company believes that foreign enterprises (transit service hirer as known as the shipper) are the subjects that violate the intellectual property law. Remedy for violated transit goods is "" Forcible bringing out of Vietnamese territory to infringing transit goods "" according to Point c Clause 2 Article 3 of Decree No. 99/2013 / ND-CP.
The Company said that it is inappropriate for Vietnam Customs to apply Point a, Clause 1, Article 12 of Decree No. 99/2013 / ND-CP to fine the Company, creating a bad precedent in applying laws and causing injustice to Vietnamese businesses in international economic cooperation, hindering the development of the fledgling logistics service industry of Vietnam, limiting the role and position of Vietnam in the production and trade chain of the region and the world.
The company earnestly requests the State agencies to have an objective attitude in combating and handling intellectual property violations, legally handling against foreign companies in violation, and protecting the rights and legitimate interests of enterprises transporting Vietnamese goods in transit. "
Responded by units: The General Department of Customs - Ministry of Finance
Official letter: No. 7464 / TCHQ - PC, dated: 2019-11-29
Responded contents:
The General Department of Customs has the following opinions:
- According to Article 11 of the Agreement on Transit of Goods between the Government of the Socialist Republic of Vietnam and the Government of the Lao People's Democratic Republic, violations of the carrier in transit is subject to the law of the country of transit.
Article 46 of the TRIPS Agreement states that “The judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce”. Article 59 of the TRIPS Agreement states: “In regard to counterfeit trademark goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances”
• Point b, Clause 1, Article 211 of the Law on Intellectual Property:
"1. The following violations of intellectual property rights are administratively sanctioned:
1. b) Producing, importing, transporting or trading in intellectual property counterfeit goods according to Article 213 of this Law or assigning others to do this act ".
- Point d, Clause 1, Article 3 of the Law on Handling of Administrative Violations stipulates that “Many people who commit the same act of administrative violation shall each be sanctioned for such violation.
In conclusion, the Company is the one who carries out transporting acts, therefore, it is the subject of the sanction. In cases goods owners are identified, they must also receive sanction for assigning others to “carry out goods transit acts” according to law provisions.
2. The General Department of Customs provides information on responding to enterprises' recommendations according to the Government Office's dispatch as follows:
• Official Letter No. 8380 / VPCP-DMDN dated September 18, 2019 of the Government Office on Tam Ket Trading and Technology Co., Ltd. petitioning for signatures on CO FORM E in importing goods for preferential tax treatment under ACFTA Agreement.
The General Department of Customs issued Official Letter No. 6331 / TCHQ-GSQL on October 4, 2019 to the Customs Departments of the provinces and cities, responded to the Company and sent to the Government’s Office for reporting.
• Official Letter No. 8411 / VPCP-DMDN dated September 18, 2019 of the Government Office on Ong Tam Dao Joint Stock Company proposing additional tax after the declaration has been cleared.
The General Department of Customs issued an Official Letter No. 6576 / TCHQ-TXNK on October 17, 2019 to answer the Company and send it to the Government’s Office for reporting.
• Official Letter No. 8413 / VPCP-DMDN dated September 18, 2019 of the Government Office on the World Joint Stock Company's request for certificate of conformity of large rolls of paper imported to produce toilet paper and towels.
The General Department of Customs issued Official Letter No. 6489 / TCHQ-GSQL on October 14, 2019 to respond to the Company and send it to the Government’s Office for reporting.
- Official Letter No. 8658 / VPCP-DMDN dated September 25, 2019 of the Government Office on Duong Minh Company proposing the settlement report, processing tax exemption, export production.
Customs Administration and Supervision Department General Department of Customs issued an Official Letter No. 4472 / GSQL-GQ2 dated October 23, 2019 to the Company.
• Official Letter No. 8813 / VPCP-DMDN dated September 30, 2019 of the Government Office on the proposal of Rang Dong Water Thermos Bulb Company to handle the export declaration division.
The Ministry of Finance has issued an Official Letter No. 12354 / BTC-TCHQ dated October 16, 2019 to the Government’s Office on handling the company's problems and sent to the Government ‘s Office for reporting.
• Official Letter No. 8823 / VPCP-DMDN dated September 30, 2019 of the Government’s Office on Huynh Ngoc Medical Equipment Co., Ltd. proposing to apply the tax rate to hearing aids.
In this case, the General Department of Customs is requesting the local Customs Departments to report the review for handling. Therefore, the General Department of Customs will reply to the Company later.
- Official Letter No. 8837 / VPCP-DMDN dated September 30, 2019 of the Government’s Office on Hoang Anh Import Export and Construction Investment Joint Stock Company proposing the release of imported consignment.
Regarding this, the General Department of Customs is directing the local Customs report, there will be a written reply in the near future.
• Official Letter No. 7048 / VPCP-DMDN dated August 8, 2019 of the Government’s Office on Yanmar Vietnam Agricultural Machinery Co., Ltd. proposing to handle problems in determining the list of agricultural tractors used. motivate the rotary, plowing, harrowing, staging.
Regarding this, the General Department of Customs issued an Official Letter No. 6036 / TCHQ-TXNK dated September 20, 2019, consulting the Ministry of Agriculture and Rural Development to solve enterprises' problems. Upon receiving the comments from the Ministry of Agriculture and Rural Development, the General Department of Customs will issue a written reply to the enterprise.
• Official Letter No. 7331 / VPCP-DMDN dated August 16, 2019 of the Government’s Office defending the Business Household Le Bich Phuong's proposal on import and export of goods.
In this regard, the General Department of Customs is directing the research units to perform. There will be a written reply in the coming time.
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