Duong & Tran Intellectual Property

Draft Resolution of the Council of Judges of the Supreme People’s Court Guiding the Application of a Number of Provisions on the Crime of Infringing Copyright and Related Rights and the Crime of Infringing Industrial Property Rights under the Criminal Code

11/13/2026

Introduction

The Council of Judges of the Supreme People’s Court is seeking comments on a Draft Resolution guiding the application of a number of provisions on the Crime of infringing copyright and related rights (Article 225) and the Crime of infringing industrial property rights (Article 226) of the Criminal Code (as amended and supplemented by Law No. 59/2024/QH15 and Law No. 86/2025/QH15) (the “Criminal Code”) (hereinafter referred to as the “Draft Resolution” or the “Draft”).

The Draft Resolution sets out an important legal framework for procedure-conducting authorities to apply criminal provisions on intellectual property (“IP”) uniformly, including: definitions of core concepts, guidance on determining the constituent elements of the offense, methods of determining damage, and the delineation between the crime of infringing IP rights and other related crimes.

Below is a summary of the main contents of the Draft Resolution (first draft) and certain notable points that IP right holders should be aware of.

Main Contents of the Draft Resolution

1. Scope of Application

The Resolution provides guidance on application to infringement of:

  • Literary, artistic and scientific works and subject matter of related rights (performances, sound recordings, video recordings, broadcast programs, and satellite signals carrying encrypted programs) — under Article 225 of the Criminal Code;
  • Trademarks and geographical indications — under Article 226 of the Criminal Code.

2. Definition of “Commercial Scale” — the Key Point

“Commercial scale” may be one of the conditions constituting an element of the offense under both articles, and in particular is an element of the offense under both articles under the draft Law amending the Criminal Code dated 22/09/2026. The Draft Resolution defines this as an infringing act committed for profit-making purposes, or not for profit-making purposes but significantly affecting the right holder’s right to exploit the IP subject matter, and determined by two criteria:

  • Quantitative criterion: goods that are traded or commercially promoted in a quantity of 16,000 product units or more;
  • Geographical criterion: goods that are traded or commercially promoted over an area of 01 commune-level administrative unit or more.

It is unclear under this provision whether both the quantitative and geographical criteria must be satisfied for “commercial scale” to be found, or whether satisfying only one of the two criteria is sufficient. In addition, the quantitative threshold of 16,000 product units is inconsistent with the draft amendment to the Criminal Code dated 22/09/2026 — the draft amended Criminal Code sets the quantitative threshold at 1,000 units, which is considerably lower. Furthermore, the quantitative criterion is not suited to infringements in cyberspace, where the number of copies cannot be counted.

3. Acts Infringing Copyright and Related Rights (Article 225)

The Draft provides guidance on two main groups of acts:

  • Unauthorized reproduction: direct or indirect reproduction, in whole or in part, of a work, sound recording, video recording or broadcast program by any means, including digital reproduction;
  • Distribution to the public: unauthorized sale, rental, transmission or broadcasting — notably, the Draft expressly lists social media platforms such as Zalo, Facebook, YouTube, TikTok, Instagram, etc. as channels to which this provision may apply.

4. Acts Infringing Industrial Property Rights (Article 226)

The Draft lists seven groups of acts infringing trademarks and geographical indications, including:

  • Selling, offering, transporting, stockpiling, or displaying for sale goods infringing rights;
  • Producing, processing, assembling, or packaging goods bearing infringing signs;
  • Printing, affixing, casting, or stamping stamps, labels, or packaging bearing counterfeit trademarks or geographical indications;
  • Importing goods bearing infringing signs.

5. Trademark-Counterfeit Goods — Special Provision on Quality

Under the Draft, goods are deemed trademark-counterfeit when both of the following conditions are met: (i) they bear a trademark identical to a protected trademark; and (ii) at least one basic quality criterion or technical characteristic reaches 70% or more of the applicable standard or the standard stated on the packaging.

The Draft’s imposition of a 70% quality threshold does not reflect the legal nature of the crime of infringing IP rights with respect to trademark-counterfeit goods. Under Article 213 of the IP Law, trademark-counterfeit goods are entirely independent of the quality factor — use of a trademark without the owner’s permission may constitute a crime. Therefore, if retained, the 70% condition would conflict with the Criminal Code and the IP Law, and requiring quality and technical-characteristic testing when assessing the crime of trademark counterfeiting is an unreasonable provision. In addition, using the word “identical” instead of “identical or similar to the extent of being hard to distinguish” (under Article 213 of the IP Law) also significantly narrows the constitution of the offense.

6. Delineation of Offenses

The Draft provides guidance on delineating the boundary between Articles 225/226 and other offenses:

  • Trademark-counterfeit goods not meeting the above conditions → handled under the Crime of producing and trading in counterfeit goods (Article 192 of the Criminal Code);
  • Trademark-counterfeit goods that are food, medicine, fertilizer, plant protection products, etc. → handled under Articles 193–195 of the Criminal Code (crimes of producing and trading in counterfeit foodstuffs, food, food additives, etc.) rather than under Article 226;
  • A person who knows goods bear counterfeit trademarks but sells them as genuine goods → may simultaneously be prosecuted for the Crime of fraudulent appropriation of property (Article 174 of the Criminal Code);
  • A person who distributes goods without being able to prove their origin → may be handled under the Crime of smuggling (Article 188 of the Criminal Code).

7. Determination of Damage

The Draft provides for two types of damage:

  • Material damage: loss of property, reduction in income/profits, loss of business opportunities, and costs of prevention/remedy;
  • Moral damage: loss of honor and reputation of authors and performers.

Where the amount of material damages cannot be determined, the Draft provides that an expert appraisal must be conducted to determine the amount of material damage.

Certain Issues Not Addressed in the Draft

The following issues are fairly common and should also be specifically guided, but are not included in the Draft:

  • IP crimes in cyberspace: determination of criminal acts, subjects, electronic evidence and data collection — this is a major gap in the context of increasingly prevalent digital infringement;
  • Cross-border crimes: mechanisms for verifying offenders located abroad and for judicial assistance in the field of IP;
  • Remedial measures: specific guidance on the destruction of counterfeit goods and pirated goods, and/or their put into use for non-commercial purposes.

Conclusion

The Draft Resolution is an important step toward the uniform application of criminal law on IP in Vietnam. However, certain issues need to be supplemented and certain provisions need to be reconsidered to ensure consistency with the IP Law, the Criminal Code and the practice of handling violations, in particular: the definition of “commercial scale” with the threshold of 16,000 units, the 70% quality condition for trademark-counterfeit goods, and the lack of guidance on IP crimes in cyberspace.

The Draft Resolution is still in the process of soliciting comments for finalization. It is hoped that, with the incorporation of contributions from the public, IP right holders and relevant parties, the Draft Resolution will be improved by the time it is adopted.

For further information, please feel free to contact us at the following e-mail address: hanoi@duongtran.vn.