What are the causes of counterfeiting and piracy in Vietnam?
The following are the causes of counterfeiting and piracy in Vietnam:
Vietnam is becoming more sophisticated in its methods and practices, as well as in its use of counterfeiting technology.
The nation has a geo-political placement and a long coastline. Also, it is adjacent to several ASEAN members and China.
It has poor living conditions of people living in rural border areas. It also helps facilitate the smuggling of illicit goods across the border.
Which are the goods that most often face counterfeiting and piracy in Vietnam?
Garments, accessories (for instance, sunglasses, handbags, etc.), food products, wines and spirits, cosmetics, pharmaceutical products, computer software, vehicle spare parts, engine lubricants, electro-mechanical products, and consumer electronics are the goods that most often face counterfeiting and piracy in Vietnam.
Does Vietnam have a well-established framework for the enforcement of Intellectual Property Rights (IPRs)?
What are the specific laws/orders/rules laid down in Vietnam for the enforcement of Intellectual Property Rights?
They are as follows:
The Civil Code 2015 (in particular Chapter 13)
The Code on Civil Procedure 2015
The Law on Intellectual Property 2005 (as amended in 2009 and 2019) (IP Law)
The Decree No. 103/2006/ND-CP dated 22nd September 2006 (as amended by Decree No. 122/2010/ND-CP dated 31st December 2010), providing detailed regulations and guidelines on a number of Articles of the Law on Intellectual Property 2005
The Decree No. 105/2006/ND-CP dated 22nd September 2006 (as amended by Decree No. 119/2010/ND-CP dated 30th December 2010), providing detailed regulations and guidelines regarding the protection of IP rights and state management of IP rights
The Decree No. 99/2013/ND-CP dated 29th August 2013 on administrative penalties in the area of industrial property
The Circular No. 11/2015/TT-BKHCN dated 26th June 2015, which provides guidance on the implementation of Decree No. 99/2013/ND-CP
What are the different types of IPRs protected by IPR enforcement in Vietnam?
Trademarks, copyright, patents, designs, layout-design of integrated circuits, and geographical indications are the different types of IPRs protected by IPR enforcement in Vietnam.
What are the general IPR enforcement obligations in Vietnam?
Foreign individuals, not permanently residing in Vietnam, and foreign organizations and individuals that do not have a production or trading establishment in Vietnam should file applications for the registration of industrial property rights through a lawful representative in Vietnam.
What are the essential to-dos before an IP rights holder initiates the enforcement proceedings?
It is important to register your rights in accordance with the law. Also, certain documents like the Power of Attorney, a document evidencing the right to file an application, a document showing agreement between co-authors/owners should be prepared in Vietnamese.
Is there any limitation period for filing an infringement action?
Yes. In administrative actions, the statute of limitation is 02 years from the date of termination of the infringement. If the infringement is ongoing, the statute of limitations is 02 years from the time the infringement was detected. In civil actions, the statute of limitation is 03 years from the date on which the rights holder becomes aware that his legitimate rights and interests are being encroached.
Which of the following IPR enforcement channels is/are available in Vietnam?
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
Are civil actions available for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in civil litigation?
Which of the following types of civil remedies is/are available in Vietnam?
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Are there any other civil remedies available in Vietnam than the ones mentioned above? If yes, then kindly explain in brief.
What is the approximate timeline of civil litigation related to IPR enforcement in Vietnam?
The approximate timeline of civil litigation related to IPR enforcement in Vietnam is between 18 and 24 months. Summary proceedings or fast-track procedures are available under the Code on Civil Procedure 2015.
What happens if an IP rights holder abuses the enforcement measures in civil litigation?
Are there any disadvantages of civil litigation in Vietnam? If yes, then kindly give 2-3 points?
Civil litigation is Vietnam is time taking, costly, and unpredictable.
Is criminal prosecution available in Vietnam for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in criminal prosecution?
Which is the responsible authority in Vietnam corresponding to the types of criminal remedies available? Also, mention the imprisonment term and the monetary fine.
A) Responsible Authority - Economic Police – “EP”, Police Unit for High-Tech Crime Prevention, The Market Management Bureau, Inspectorate of the Ministry of Science and Technology (MoST) and Department of Science and Technology (DoST), Inspector of the Ministry of Information and Communications (MoIC) and Department of Information and Communications (DoIC), People’s Committees, and Provincial-level Civil Courts.
B) Imprisonment Term - Up to 30 years
C) Monetary Fine - Up to VND1 billion (~US$43,095)
Are there any other criminal remedies available in Vietnam than the ones mentioned above? If yes, then kindly explain in brief.
Yes, other criminal remedies include business suspension for up to 02 years, ban from business activities, operations in certain fields, and even permanent termination of business operations.
What happens if an IP rights holder abuses the enforcement measures in criminal prosecution?
Are there any disadvantages of criminal prosecution in Vietnam? If yes, then kindly give 2-3 points?
The disadvantages of criminal prosecution are as follows:
Limited experience and knowledge of authorities in handling IPR matters
Are there any alternative dispute resolution mechanisms which allow parties to resolve their dispute out of court?
ADR methods are available, but only if both parties contractually agree to refer the matter to ADR. Therefore, it is possible to choose ADR for disputes arising under a licence agreement in Vietnam.
Mediation is primarily governed by the Decree No. 22/2017/ND-CP on Commercial Mediation. A new Law on the Mediation and Dialogue at Court is in the making.
Are border control measures (customs) available in Vietnam for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to the customs authority/department to support his claims of infringement against the opposing party/importer of counterfeit goods?
What are the remedies available under border control measures (customs) in Vietnam?
Authorities can impose fines of up to 250 million dong upon individual infringers or up to 500 million dong upon infringing entities.
Who must bear the costs of customs intervention during enforcement?
The rights holder must bear the costs of customs intervention during enforcement.
What happens if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs?
Which are the best practices for enforcement of IPRs in Vietnam?
Administrative procedures (for raids) are better since the procedure is simple, low in cost, less time-consuming (01 to 03 months), and they still have a deterrent effect. This may stop the infringing activity, but the plaintiff cannot then claim the damages.
Are there any risks involved in the enforcement of IPRs in Vietnam? If yes, then kindly give 2-3 points.
They are generally time-taking and not very cost –effective.