What are counterfeit goods according to the law?
I see online articles always mention the phrase "counterfeit goods, counterfeit goods", so how are counterfeit goods, counterfeit goods regulated?. The issue of concern of Ms. Le Thi Lan (Do Luong, Nghe An).
According to the provisions of Clause 7, Article 3, Decree 98/2020/ND-CP, regulations on counterfeit goods include:
-“Counterfeit goods” include:
+ Goods with use value or function that is not consistent with the natural origin or name of the goods; goods with no use value or function or with use value or function that is inconsistent with the declared or registered use value or function;
+ Goods have at least one of the quality indicators or basic technical characteristics or the main quantitative substance that creates the use value or utility of the goods only reaching 70% or less compared to the minimum level prescribed in the technical regulations or quality standards registered, announced, applied or recorded on the label or packaging of the goods;
+ Counterfeit drugs as prescribed in Clause 33, Article 2 of the 2016 Law on Pharmacy and counterfeit medicinal materials as prescribed in Clause 34, Article 2 of the 2016 Law on Pharmacy;
+ Veterinary drugs and plant protection drugs do not have active ingredients; do not have all registered active ingredients; have active ingredients different from those listed on the label or packaging of the goods; have at least one of the active ingredient contents only reaching 70% or less compared to the minimum level prescribed in the technical regulations or quality standards registered and announced for application;
+ Goods with labels or packaging bearing instructions that forge the name or address of the organization or individual that produces, imports, or distributes the goods; forge the circulation registration code, announcement code, or barcode of the goods or forge the packaging of goods of other organizations or individuals; forge the origin or place of production, packaging, or assembly of the goods;
+ Counterfeit stamps, labels, and packaging.
And according to the provisions of Clause 8, Article 3, Decree 98/2020/ND-CP and Article 213 of the Intellectual Property Law 2005, amended by Clause 79, Article 1, Intellectual Property Law 2022 (Effective from January 1, 2023), more specific guidance and regulations are provided for Clause 7, Article 3, Decree 98/2020/ND-CP, specifically as follows:
"Counterfeit stamps, labels, and packaging of goods" include decals, product labels, product packaging, quality stamps, quality marks, traceability stamps, warranty cards, shrink-wrapped goods or other items of business organizations and individuals that have instructions for forging the names and addresses of other organizations and individuals; forging trade names, product names, barcodes, circulation registration codes, and declaration codes of goods or product packaging of other organizations and individuals".
Intellectual Property Counterfeit Goods
1. Counterfeit intellectual property goods as prescribed by this Law include goods with counterfeit trademarks, goods with counterfeit geographical indications, and pirated goods as prescribed in Clauses 2, 3 and 4 of this Article.
2. Counterfeit trademark goods are goods or packaging of goods bearing trademarks or signs or stamps or labels containing signs that are identical or similar to the point of being difficult to distinguish from the protected trademark used for that very item without the permission of the trademark owner.
3. Goods with counterfeit geographical indications are goods or packaging of goods that are affixed with signs or stamps or labels containing signs that are identical or similar to the protected geographical indication used for that very item and the affixing of these signs is carried out by organizations or individuals that do not have the right to use geographical indications as prescribed in Clause 4, Article 121 of this Law or according to the law of the country of origin of that geographical indication.
4. Pirated goods are copies produced without the permission of the copyright owner or related rights owner.
Previously, this content was regulated in Article 213 of the 2005 Law on Intellectual Property as follows:
1. Counterfeit intellectual property goods as prescribed in this Law include goods with counterfeit trademarks and counterfeit geographical indications (hereinafter referred to as counterfeit trademark goods) prescribed in Clause 2 of this Article and pirated goods prescribed in Clause 3 of this Article.
2. Counterfeit trademark goods are goods or packaging of goods bearing trademarks or signs that are identical or difficult to distinguish from trademarks or geographical indications currently protected for the same goods without permission from the trademark owner or the geographical indication management organization.
3. Pirated goods are copies produced without the permission of the copyright or related rights owner.
Therefore, to understand and distinguish which products/items are counterfeit, they must contain one or more counterfeit signs as specified above.
Thus, according to legal regulations, there is no document regulating the term and concept of "counterfeit goods", but this term is only used to understand that the product circulating on the market is not the genuine product brought to the market by the manufacturer or main distributor. Therefore, to use the main term according to legal documents, only the term "counterfeit goods" is used.
