Unfair competition

1. General

Under our current regulations of law, any act of competition contrary to honest practices in doing business which cause confusion, deception or damage to another’s reputation may constitute an act of unfair competition. Acts of unfair competition contains acts infringing IP rights, namely the infringement of trade secret and the use of a commercial indication which causes confusion, including the followings:

a) Using commercial indications (i.e., signs, information serving as guidelines to trade of goods and services, including marks, trade names, business symbols, business slogans, geographical indications, package designs, label, etc.) that cause confusion as to business entities or business activities or commercial source of goods or services;

b) Using commercial indications that cause confusion as to the origin, production method, quality, quantity or other characteristics of goods or services; or as to the conditions for provision of goods and services;

c) Using a trademark being protected in a country which is member to an international treaty which Vietnam joins in and under the provisions, the representative or agent of the trademark owner is prohibited from using the trademark, if the user was a representative or agent of the mark owner and such use was neither consented to by the trademark owner nor justified;

d) Registering or possessing the right to use or using a domain name identical with or confusingly similar to a protected trade name or trademark of another person/entity, or a geographical indication that he/she does not have the right to use, at the aim of possessing the domain name, benefiting from or prejudicing reputation and goodwill of the respective trademark, trade name and geographical indication.

2. Unfair Competition settlement procedures

In order to settle an unfair competition case, the following main stages shall be made:

(a)    Preliminary Investigation: In case there is a request and evidence of unfair competition filed by interest related party, the Director of Competition Administration Department will issue a decision on whether to proceed with a preliminary investigation to find out the infringement under unfair competition law;

(b)   Official Investigation: When the preliminary investigation shows out the evidence proving that there is an indication of unfair competition exist, The Director of the Competition Administration Department will issue a decision on official investigation. The purpose of the official investigation is to determine the practical unfair competition case;

During the investigation stages, the Director of the Competition Administration Department may apply the administrative preventive measures either on his own initiative, on the recommendation of the investigator, or at the request of the complainant. And in the process of the official investigation, the alleged infringer is still given an opportunity (within a prescribed period of time) to bring out the opinion on the case and to submit evidence supporting thereof.

(c)   Decision on settlement: After considering the investigation documents and evidence, the Director of Competition Administration Department shall issue a decision on the settlement of unfair competition.

However, in case of disagreement with the decision issued by the Director of Competition Administration Department, parties may file an appeal against the decision to Minister of Ministry of Trade. Within 15 days from the appeal, the Minister will issue a decision to revoke, modify, or keep unchanged the issued decision.

And even in case of disagreement with the decision of Minister of Ministry of Trade, the parties may bring the case to a provincial court.

Under this procedures, IPR infringer may be imposed on with the remedie of warning order or monetary fine. And depending on the seriousness of the case, the following additional sanctions may be imposed on an IPR infringer:

– Withdrawal of business license, certificate or professional practicing certificate;

– Confiscation of the facilities used to commit the offence;

– Public rectification.