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Decree 119/2010/nd-Cp: Modifying, Supplementing A Number Of Articles Of Decree No. 105/2006/nd-Cp Of September 22, 2006 The Government Detailing And Guiding The Implementation Of Some Articles Of The Law S

Original Language Title: Nghị định 119/2010/NĐ-CP: Sửa đổi, bổ sung một số điều của Nghị định số 105/2006/NĐ-CP ngày 22 tháng 9 năm 2006 của Chính phủ quy định chi tiết và hướng dẫn thi hành một số điều của Luật S

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DECREE amending and supplementing a number of articles of Decree No. 105/2006/ND-CP of September 22, 2006 the Government detailing and guiding the implementation of some articles of the law on the protection of intellectual property the intellectual property rights and governance of intellectual property _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ the GOVERNMENT pursuant to the law on organization of the Government of 25 December 2001;
Pursuant to the law on intellectual property on November 29, 2005 amended and supplemented on June 19, 2009;
Considering the recommendation of the Minister of science and technology, the DECREE: article 1. Modifying, supplementing a number of articles of Decree No. 105/2006/ND-CP of September 22, 2006 the Government detailing and guiding the implementation of some articles of the law on the protection of intellectual property the intellectual property rights and governance of intellectual property are as follows : 1. To modify article 1 as follows: "article 1. Scope this regulation details, guide the implementation of some articles of the law on intellectual property regarding the determination of infringement, the nature and level of intellectual property right violations, identify the damage, ask and solve the request handle, handle intellectual property rights infringement controlling the export and import of goods related to intellectual property, intellectual assessment and management of intellectual property. "
2. Amend article 14 paragraph 1 as follows: "article 14. Elements infringing rights to plant varieties 1. Elements infringing rights to plant varieties can belong to one of the following form: a) using materials of breeding of plant varieties are protected in order to perform the acts specified in paragraph 1 to article 186 of the law of intellectual property without permission of the owner by the protection of plant varieties;
b) breeding material use of crop varieties specified in article 187 of the law on intellectual property;
c) use the name of a cultivar of the same species or species near the same protection of species with which this name identical or similar to the point of confusion with names of plant varieties are protected;
d) specified in point a, point b of this clause also apply to harvest materials if the owner By seed protection not yet have reasonable conditions to perform its rights for breeding of the same material just like that. "
3. Amendment to article 23 paragraph 1 as follows: "article 23. Documents, and evidence of processing petition infringement 1. The request handling infringement must submit a petition to handle confidential documents, the following evidence to prove their claims: a) the evidence is probably right if the person requires the owner or person who is transferred, inherited, inheriting the intellectual rights;
b) evidence proving infringement has occurred; evidence to suspect the merchandise exports, imports of infringing intellectual property rights with respect to the suggested menu pause do customs procedures;
c) materials, other evidence to prove their claims. "
4. additional amendments clause 1 and clause 2 article 24 as follows: "article 24. The evidence subject of rights 1. With respect to inventions, industrial designs, layout design, trademarks, geographical indications, plant varieties, copyrights, rights of performers, the rights of producers of sound recordings, video recordings, of the rights of broadcasting organizations had been registered, the evidence proves the subject's rights is one of the following property types : a) copy By patent, patent of useful solutions, industrial model patent, certificate of registration of layout design, trademark registration certificate, a certificate of registered geographical indications, by the protection of plant varieties, the certificate of registration of copyright , The certificate of registration of related rights attached to the original filing, unless a copy has been certified according to the rules;
b) A national registration book excerpts on industrial property; A national registration book excerpts on copyright and related rights; A national registration book excerpts on plant varieties are protected by the competent authorities register those objects.
2. for the international registration of trademarks, the right to subject the evidence is a copy of the certificate of the international registration of marks are protected in Vietnam by the State Agency on industrial property-level attached to the original filing, unless a copy has been certified according to the rules.
5. name of the revised chapter IV as follows: "chapter IV. Handling of intellectual property rights infringement "6. Modify item 1 and item 2 Article 28 as follows: "article 28. Determine the value of the goods infringing 1. Goods of infringing are specified as follows: a) the goods are infringing parts, details (hereinafter the agreement) of the product contains elements infringing and may circulate as a stand-alone product;
b) integral case elements violated a part of the product may circulate independent as defined in point a of this paragraph, the goods infringing the product contains elements infringing.
2. The value of the goods infringing due to handling infringement agency determined at the time the infringement occurred and, based on the base according to the following order of priority: a the listing Price of the goods) compromised;
b the sale prices of goods) compromised;
c) of goods of infringing, if not yet in circulation;
Enter the Price of the goods) violated. "
7. Repeal of Article 33.
8. Amend Article 36 paragraph 1 as follows: "article 36. Simple handling procedures 1. Within twenty days from the date of the petition examination, monitoring the import, export or within twenty-four hours of work, since the time of receiving the petition to halt procedures of customs, customs authorities have the responsibility to consider and accept the message menu If the applicant has performed the obligation prescribed in points a, b, c paragraph 1 and item 2 Article 217 of the intellectual property Law. In case of rejection, the customs must respond in writing to the person who filed the petition and stating the reason. "
9. Amend paragraph 1, Article 39 paragraph 3 supplements as follows: "article 39. Content and field of expertise in intellectual property 1. The assessment of intellectual property include the following: a) define the scope of protection of intellectual property rights objects as defined in article 6 of this Decree;
b) determined the object was considered to have met the conditions to be considered elements of intellectual property right infringement or not as prescribed in clause 2 article 5 and articles from article 7 to article 14 of this Protocol;
c) determine whether or not the infection, equivalent, similarly, confusing, difficult to distinguish or copy between objects are considered to be the object of protection;
d) valuation of intellectual property rights, determine the value of the damage.
3. The Ministry of culture, sports and tourism, the Ministry of science and technology, the Ministry of agriculture and rural development is responsible for specific instructions regarding the inspection activities in the field of intellectual property as defined in paragraph 2 of this Article in the scope of their management. "
10. additional amendments to article 42 as follows: "article 42. Authorities in intellectual property 1. The organizations specified in paragraph 2 to article 201 of the law on intellectual property be assessed activities include: a) the business is established and operating under the enterprise law;
b) cooperatives and Cooperative Union was established and functioning according to the law on cooperatives;
c) business units;
d) practising lawyers organizations was established and functioning according to the law on lawyers, unless the Organization's branch of practice of foreign lawyers, the law limited liability company a cent percent foreign-owned, limited liability company law in the form of a joint venture between Vietnam lawyers practice organization and organization of practice of foreign lawyers.
2. Organize the intellectual assessment must meet the following conditions: a) has at least one assessor intellectual;
b) headquarters, equipment, means of working;
c) database source information necessary to perform the inspection activities.
3. Organize the intellectual assessment only made the assessment activities in the field of active registered. "
11. additional amendments to article 43 "43 Things. Rights and obligations of the authorities in intellectual property 1. Authorities in intellectual property have the following rights: a) hire the appraiser of intellectual make the assessment according to the incident;
b) suggest the Agency, organization or individual providing the information and documents related to the examiner objects to perform the assessment, except where the law otherwise;
c) other rights prescribed by law.
2. Organize the intellectual assessment has the following obligations: a) work for the field of expertise in the business registration certificate, certificate of registration;
b) preserving, archive documents, records relating to service the assessment;
c) confidentiality of information and documents requested by the Agency, organization, individual requests or requisition and compensation for damage in the event of damage to the Agency, organization or individuals involved;
d) other obligations under the provisions of the law. "
12. additional amendments to article 44 are the following: "article 44. Appraiser of intellectual property 1. Intellectual property appraiser who is qualified, professional knowledge to assess, conclusions about the issues relevant to the needs assessment, content is the competent State Agency recognition and Card-level appraiser of intellectual.
2. Who meet the conditions prescribed in paragraph 3 to article 201 of the law on intellectual property shall be the competent State Agency recognition and Card-level appraiser of intellectual.
3. intellectual property appraiser has the following rights: a) can operate in 12 organizations intellectual assessment under that organization's or independent activity;
b) refuse inspection in case documents are not enough or no value to give the conclusion;
c) using evaluation results or conclusions expertise, expert opinion in serving the assessment;
d) assessor intellectual independence activities have the right to suggest the Agency, organization or individual providing the information and documents related to the examiner objects to perform the assessment, except where the law otherwise;
DD) other rights prescribed by law.
4. intellectual property appraiser has the following obligations:

a) Established the examiner profile, available according to the summons of the referendum examiner; explain the conclusion when required;
b) preservation of the artifacts and documents related to service the assessment;
c) concluding independent examiner and is responsible for the conclusion of his inspection; If intentionally giving the wrong assessment conclusions, cause damage to individuals, the organizations that relate to compensation;
d) rejected the examiner in the case assessor has the right, the benefits related to the object, the examiner should appraise or have other reasons affecting the objectivity of the evaluation conclusions;
DD) keep secret the information and documents requested by the Agency, organization, individual requests or requisition and compensation for damage in the event of damage to the Agency, organization or individuals involved;
e) obey the rules of order and procedure of evaluation;
g) other obligations prescribed by law. "
13. Amendments, supplements article 50 paragraph 3 as follows: "article 50. Additional examiners, examiners back 3. In case of differences between the examiner or the conclusion between the conclusion with the expertise of the State Agency on intellectual property of the same issue to assess the referendum, demanding inspections can continue soliciting, requesting authorities other assessor, performing the assessment.
In case of need, the referendum might formed assessment Advisory Council to professional opinions about issues that need inspections, including experts, representatives of the agencies, relevant organizations. "
14. Amend paragraph 1 to article 51 as follows: "article 51. Writing the conclusion 1. Writing the conclusion is one of the sources of evidence to the competent authorities to resolve the case. Writing the conclusion not to draw conclusions about the infringement of intellectual property rights or the conclusion of the dispute. "
15. additional point e in paragraph 1 Article 55 as follows: "article 55. The responsibility of the Ministry of science and technology e) building system database, set up a national information network on governance of intellectual property and the protection of intellectual property rights. "
16. Replace the phrase: "the Ministry of culture-information" by the phrase: "the Ministry of culture, sports and tourism" in clause 1, article 55 Article 56, article 58, paragraph 1 Article 60 and Article 63 paragraph 1 of Decree No. 105/2006/ND-CP of September 22, 2006 the Government detailing and guiding the implementation of some articles of the law on intellectual property rights protection of intellectual and state management of intellectual property.
Article 2. Effective enforcement of this Decree has effect from the date of Feb. 20, 2011.
Article 3. Responsible for guiding the implementation 1. The Minister of science and technology, Minister of culture, sports and tourism, the Minister of agriculture and rural development is responsible for the implementation of this Decree.
2. Ministers, heads of ministerial agencies, heads of government agencies, the Chairman of people's Committee of the central cities, is responsible for the implementation of this Decree.