1. Definition of Invention/Utility Solution Inventions are technical solutions relating to a product or process which is to solve a…
In Vietnam, an IP infringing act can be handled in accordance with any of the administrative, civil, criminal procedures.
At first stage, IPR holders are required to send a warning letter to the alleged infringer to informing the infringer about the legal rights of the IPR holders and request the infringer to ceases the infringing act. In case off failing to settle the infringement amicably, the IPR owner shall take such legal actions against the alleged infringer.
2. Administrative procedures
According to the currents regulations of law relating to this kind of procedure, the following competent authorities are responsible for handle administrative IPR enforcement:
– The People’s Committees at the district and the provincial level;
– The Inspectorates on Science and Technology (under the supervision of the Ministry of Science and Technology);
– The Inspectorates on Culture and Information (under the supervision of the Ministry of Culture and Information);
– The Market Control Forces (under the supervision of the Ministry of Trade);
– The Economic Polices (under the supervision of the Ministry of Police).
One of the following administrative remedies may be imposed:
– Warning order; or
– Monetary fine.
Depending on the seriousness of the infringement, the following additional sanctions may be imposed on an IPR infringer:
– Confiscating IP counterfeit goods, implements and materials predominantly used for production or trade of such IP counterfeit goods;
– Revoking for a limited term the relevant business activities;
– Compelling destruction, distribution or use for non-commercial purposes of the IP counterfeit goods, materials and implements predominantly used for production or trade of such counterfeit goods;
– Compelling delivery out of the territory of Vietnam of the transiting goods, which involve infringement of IPR or re-export of the IP counterfeit goods, after having removed infringing elements.
Administrative preventive measures
In case there is a risk that infringing acts may cause serious damages to consumers or the public; or there is a risk that infringing articles may be dispersed or destroyed by infringers; or to ensure the enactment of administrative sanctions, IPR holders may request competent state enforcement authorities other than the Court to apply administrative preventive measures. These administrative preventive measures are quite similar to injunction/provisional measures applied by the Court.
3. Civil procedures
Pursuant to the regulations on Law on Civil Procedures, the following court are competent in IPR infringement cases
– The People’s Courts at the district level (including the Civil Courts);
– The People’s Courts at the provincial level (including the Civil Courts and the Economic Courts).
– The People’s Courts at the provincial level (including the Civil Courts and the Economic Courts);
– The Supreme People’s Court (including the Civil Court and the Economic Court).
The remedies may be imposed are as follow:
– Compelling termination of the act of infringement of intellectual property rights;
– Compelling public rectification and apology;
– Compelling performance of civil obligations;
– Compelling compensation for damages;
– Compelling destruction or distribution or put to use for non-commercial purposes of goods, materials and implements predominantly used for production and trade of goods infringing IPR, provided that such distribution and use does not influence the exploitation of rights of IPR holder.
The plaintiff may request the court to apply injunction/provisional measures as follows:
– Sealing; forbidding of changing the existing situation; ban of moving;
– Forbidding of transfer of the ownership of rights.
– At the request of the plantiff, other injunction measures stipulated by Law on Civil Procedure also may be applied by the court when necessary and for the purpose of avoiding the dispersal of the infringing products by the defendant/infringer. In particular, one or a combination of the following forms of injunction measures may be taken:
– Blockading of accounts or assets;
– Forbidding the defendant/infringer from conducting a certain action or forcing the defendant/infringer to conduct a certain action.
– To request for the application of the provisional measures, IPR holder shall be requested to pay a deposit or provide with a bank guarantee.
The plaintiff may request compensation for actual damage caused by infringing acts that shall be calculated basing on actual material damages and moral detriment caused by the infringer.
3. Criminal procedures
The infringing acts which cases serious consequence (articles 170 and 171 of the Criminal Act) will be imposed the criminal procedures:
Competent Authorities of Police Authorities, People’s Prosecuting Institutes and Competent Court which are responsible for handling a criminal case. This is applied according to the regulations under our Law on Criminal Procedures.
One of the following criminal penalties may be imposed on an IPR infringer
– Warning order, or;
– Monetary fine;
– Non-detained re-education for up to 3 years, or;
– Imprisonment for a period of 6 months to 20 years or life imprisonment or death penalty;
– Besides, the IPR holders may request the following additional sanctions on infringer:
– Confiscation of part or whole of assets;
– Prohibition from holding an official position or conducting a business within a certain period of 1 to 5 years.
Besides three measures as mentioned above, IPR holders have the right to request customs offices to apply border measures with the alleged infringing goods, whether imported or exported, across Vietnamese borders. Border controls are deemed to be prompt and intermediate measures that IPR holders can use to bar alleged infringing imports or exports and locate and gather evidence of infringement of their rights. However, IPR holders may be faced with a risk that their allegation is found groundless, resulting in the fact that they may be attacked by counter-claims.
IPR holders may request the customs offices to apply the following border measures:
– Inspection and monitoring for the imports or the exports suspected of being the IPR infringing goods;
– Suspension of customs procedures upon the request of the IPR holder within 10 working days. This duration may be extended, but shall not exceed 20 working days in total, subject to legitimate reasons and another security provided by the IPR holder.
– For requesting the competent Customs Offices to apply border measures, IPR holders shall be obligated to:
+ Prove that they are the IPR holders;
+ Provide full information to determine the import-export goods/products allegedly infringing intellectual property rights;
+ Submit a request for applying border measures and pay official fees prescribed by law;
+ Compensate for damages caused by applying border measures.