New Customs Law introduces important changes to IP rights protection at borders

The new Customs Law (No 54/2014/QH13), which was passed by the National Assembly of Vietnam on June 23 2014, will enter into force on January 1 2015, replacing the Customs Law of 2001, amended in 2005.

The new Customs Law introduces some important changes to IP rights protection at the borders, including the following:

• The 2005 Customs Law contained only general principles on IP rights protection, while detailed measures and procedures were set out in a number of guiding decrees and circulars, which led to confusion in practice. Now, for the first time, detailed provisions on measures and procedures for IP rights protection are set forth in the new Customs Law. It is expected that border measures will be applied more consistently and effectively under the new law.

• The 2005 Customs Law provided that the “temporary suspension of customs procedures with respect to imported or exported goods which infringe IP rights shall not apply to non-commercial goods". However, no detailed interpretation of 'non-commercial goods' was provided, leading to confusion in the application of the law in practice. The new Customs Law now regulates specific cases involving 'non-commercial goods' where IP rights protection measures are not applied, including the export or import of humanitarian aid goods, personal belongings, gifts, presents and moveable assets within duty-free quotas, and goods exempted from customs control under preferential treatment and diplomatic immunity.

• Under Decree No 154/2005/ND-CP, which guides the implementation of the 2005 Customs Law, a request for customs recordation is valid for one year and can be extended for one more year. Under the new law, this term will be prolonged to two years, and can be renewed for another term of two years, provided that it is still within the term of protection of the IP rights. This new provision will make it easier for IP rights holders to collaborate with the customs authorities and provide sufficient technical training during the term of the customs recordation. 

• The new Customs Law provides that IP rights holders who make an application for customs recordation must pay a recordation fee. Detailed guidance on recordation fees will be provided soon.

• The new Customs Law contains a new provision whereby the customs authorities will have the power to take action and detain a consignment of goods based on a request by an IP rights holder, even where no customs recordation is in place.

It is hoped that the changes introduced by the new Customs Law will help to improve the protection of IP rights at the borders, and at the same time facilitate the smooth processing of goods through Customs.

Son Doan, IPMAX Law Firm, Hanoi