On 6 March 2020, the Ministry of Finance (MIF) issued Circular No.13/2020/TT-BTC amending Circular No.13/2015/TT-BTC on the inspection, supervision and temporary suspension of customs procedures of imported/exported goods subject to intellectual property rights (IPR), and control of counterfeits and IPR infringing goods. The combination of those circulars is hereinafter referred to as “Circular 13”. Circular 13 will come into effect on 20 April 2020.
Please find set out below the important changes as enforced by the new Circular for your reference.
1. Requests for customs recordal can be electronically filed through Electronic Customs Data Processing System (e-Customs System). (New Article 6 of Circular 13)
- Requests for customs recordal as well as all required documents can be electronically filed through e-Customs System.
- However, if the e-Customs System is not yet available or there is any error, the requests could still be physically submitted to Customs. In this case, all the formal requirements related to the requests and the supporting documents thereof remain the same.
- At present, to the best of our knowledge, customs have been running their e-Customs System for customs declaration (https://www.customs.gov.vn/ChuyenMuc/VNACCS_VCIS/Default.aspx).
This system has yet to support Customs recordal. That said, we believe that the Customs will soon update their system for the above-said electronic filing.
2. Right to supplement documents in case of shortcomings (New Article 7 of Circular 13)
- Within five working days from the filing date of the request for customs recordal, Customs will issue a notice informing the applicant of any shortcomings regarding the dossier.
- The applicant has ten working days from the issuing date of the Customs’ notice to supplement required documents
3. New deadline for renewal of a customs recordal (New Article 8.1 of Circular 13)
Request for renewal of a customs recordal must be filed at least 20 days prior to the expiry date of the customs recordal. There is no grace period allowing for late submission.
4. The Customs’ right in cancellation of the validity of the customs recordal (New Article 8.2 of Circular 13)
If Customs finds that the evidence in the customs recordal dossier is no longer valid (e.g., trademark registration has expired or has been cancelled) or fabricated, Customs has the right to cancel the validity of the customs recordal by issuing a notice informing the same to the right holder within five working days from the date that Customs receive a request of the applicant or other notice of a state agency.
5. Right holders can now request for suspension of customs procedures of a shipment before receiving Customs’ acceptance of a customs recordal (New Article 9 of Circular 13)
Under Circular 13, if the right holders filed requests for customs recordal but have yet to receive acceptance from Customs, they can request for a suspension of customs procedures for shipment, provided that they submit with Customs: (i) copies of the requests and the supporting documents as filed; (ii) proof of payment for the regulated deposit or bank guarantee documents; and (iii) proof of payment for the customs fee.
6. Suspension of customs procedures (New Article 10 of Circular 13)
Unlike the old circular that allows Customs to lengthen the period of suspension of customs procedures in case there is a need for obtaining assessment conclusion of infringement or expert opinion from relevant state agencies, this period is now fixed at 10 days (extendible for a maximum of another 10 days for justified reason).
7. Amendment on the customs inspection and supervision procedures (New Article 12 of Circular 13)
Inspection of customs dossier
- Regarding customs import/export declaration, importer/exporter must fully and precisely declare information for all required data fields (i.e., on name, brands, quality, specifications, components, model, product code, characteristics and functions of products)
- Customs authorities shall examine and cross-check the declared information with documents on the customs dossier to ensure consistency (i.e., on name, brands, origin, value, quality, specifications, components, model, product code, characteristics, functions, route of transportation of the products)
- Customs authorities shall examine and cross-check name of importers/exporters, name of products, name of brands with data provided by the GDC, and data gathered by customs authorities to identify goods with signs of IPR infringement and counterfeits (if any).
If the importer/exporter is on the list of importers/exporters of IPR-infringing goods and goods with sign of IPR infringement, the right holder or his authorized representative will be notified.
If the importer/exporter is not on the list of authorized importers/exporters or the list of importers/exporters of potentially IPR-infringing goods, the IPR owner or his authorized representative will only be notified of the goods with sign of IPR infringement, on the basis of inspection of customs dossier and/or actual identification of such goods.
- The customs authorities will continue the customs procedures for the imported/exported goods at issue when there are sufficient grounds to deem them conformable and free of sign of counterfeits or IPR infringing goods.
In case of suspicion or conflict between the declared information and the information on the request for inspection and supervision, and the customs authorities still lack grounds for determination of infringement, the Director of that Customs Sub-department will proceed with an actual inspection of the goods, as well as specifically identify signs of counterfeits and IPR infringement for the customs officers to note during inspection.
Actual inspection of goods
- Customs authorities shall examine and cross-check product name, printed brand on product packaging, and the imported/exported products themselves with product name and brand as declared on the customs declaration, documents of customs dossier and warning notices (if any) to determine conformability.
- Customs authorities shall examine and cross-check the imported/exported products with the request for inspection and supervision (i.e., through provided photos, descriptions and guideline for
product authentication) to determine counterfeits and goods with sign of IPR infringement.
- Customs authorities are also entitled to investigate and verify if there is not enough basis to determine whether or not the products are counterfeits or goods with sign of IPR infringement.