AN OVERVIEW OF IPR ENFORCEMENT IN VIETNAM

By ELITE LAW FIRM

 

1. STRUCTURE OF VIETNAMESE IP ADMINISTRATION SYSTEM

The IP administrative system of Vietnam includes three branches corresponding to three branches of intellectual property rights as defined in the Intellectual Property Law: copyrights and related rights, industrial property rights, and rights over new plant varieties. The organization chart of the IP administration system can be illustrated as follows:

 

 

2.INTRODUCTION OF IPR ENFORCEMENT AUTHORITIES

 

Depending on the acts, nature and seriousness of right infringement acts, an act of IPR infringement shall be handled by one of the above IPR enforcement authorities under administrative procedures or civil procedures or criminal procedures or Customs control measures. IPR enforcement authorities of Vietnam include:

 

(1) Courts (under civil procedure and criminal procedures);      

(2) Inspectorates (under administrative procedures);     

(3) Market management authorities (under administrative procedures);

(4) Customs authority (under Customs control measures and administrative procedures);  

(5) Police (under administrative procedure and criminal procedures);     

(6) People’s committees of various levels (under administrative procedures);

(7) Competition authority (under administrative procedures).

 

2.1. Courts:

 

Like a majority of countries in the world, Vietnamese courts have jurisdictions over civil cases involving IPR disputes or IPR infringement under the civil procedures or over IPR infringement offences under the criminal procedure.

 

Vietnam does not yet have IP courts to deal with IPR disputes under civil procedures.  At present, IPR disputes are usually assigned to civil courts (or economic courts) under the provincial People’s Court for first instance hearing.

 

The civil court under the provincial People’s court shall hear for the first instance the non-profit disputes over IPRs (e.g. those disputes over personal rights of a work author).

 

The economic court under the provincial/municipal People’s court shall hear for the first instance the disputes over IPRs among organizations and individuals which are all for profit purpose (e.g. those disputes involving uses of trademarks on goods and products etc).

 

For a crime of IPR Infringement, it is normally heard for the first instance by a provincial court.

 

At present, System of Vietnam’s courts include:

 

1. The Supreme People’s Court.
2. People’s High Courts (03 High Courts located in Hanoi, Danang and Ho Chi Minh City).
3. People’s Courts of the province or City under central authority (Provincial Courts).
4. People’s Courts of districts, towns and provincial cities and equivalent (District Courts).
5. Military Courts.

 

2.2. Inspectorates:

 

Specialized inspectorates have competence to impose a monetary fine as to acts of IPR Infringement/violation in their State management scopes.

 

2.2.1. Acts of infringement of related right and copyright: shall be deal with by the specialized inspectorate of the culture, sports and tourism sector under the Ministry of Culture, Sports and Tourism and its Departments of culture, sports and tourism of provinces and under administrative measures.

 

The Chief Inspector of the Ministry of Culture, Sports and Tourism has the power to impose a fine with the maximum value of VND500,000,000 (about USD23,800) as to violating organizations and VND250,000,000 (about USD11,900) as to violating individuals. Chief Inspectors of Departments of Culture, Sports and Tourism have the power to impose a maximum fine of VND100,000,000 (about USD4,760) as to violating organizations and VND50,000,000 (about USD2,380) as to violating individuals.

 

2.2.2. IPR infringement acts relating to various industrial property subject matters (inventions, trademarks, industrial design etc): shall be deal with by the specialized inspectorate of the science and technology sector under the Ministry of Science and Technology (MoST), Department of Science and Technology (DoST) of provinces and cities under administrative measures (except for the industrial property infringement acts in import/export).

 

2.2.3. IPR infringement acts involving rights over plant varieties:  shall be deal with by the specialized inspectorate of the agriculture and rural development sector under the Ministry of Agriculture and Rural Development (MARD) and Departments of Agriculture and Rural Development under provinces and cities (DARD) under administrative measures.

 

2.3. Market management authorities

 

Market management authorities have the power to inspect and deal with acts of IPR infringement, and trading of IPR counterfeit goods during business and commercial activities.

 

The General Director of the Market Management Department has the power to impose a maximum fine of VND500,000,000 (about USD23,800) as to violating organizations and VND250,000,000 (about USD11,900) as to violating individuals.

 

2.4. Customs authorities

 

The customs authority has the power to deal with IPR infringement acts relating to import of goods. Upon a suspect of any imported goods of infringing protected IPR, the IPR holder of intellectual property might request the customs authority to stay the completion of customs procedures with regard to the relevant shipment for inspection. If the shipment is detected to contain a sign of IPR infringement, the IPR holder may request the Customs authority to impose a penalty on the organization or individual importing those infringing goods.

 

The General Director of Vietnam Customs Office has the power to impose a maximum fine of VND500,000,000 (about USD23,800) as to violating organizations and VND250,000,000 (about USD11,900) as to violating individuals. The Chief of Anti-Smuggling Investigation Department under Vietnam Customs Office has the power to impose a maximum fine of VND100,000,000 (about USD4,760) as to violating organizations and VND50,000,000 (about USD2,380) as to violating individuals.

 

2.5. Police

 

The police are responsible to investigate into and prosecute against IPR infringement crimes (assigned to the economic police). Also, the police have the power to inspect and deal with acts of IPR infringement, and trading of IPR counterfeit goods during business and commercial activities under administrative procedure.

 

The Chief Investigation Police Department of Ministry of Public Security has the power to impose a fine with the maximum value of VND500,000,000 (about USD23,800) as to violating organizations and VND250,000,000 (about USD11,900) as to violating individuals.

 

2.6. People’s committees

 

People’s committees of various levels have the power to deal with IPR Infringement acts in their State management areas. However, in fact, the people’s committees only exercise this power when the fine level goes beyond the power of the heads of the department inspectorate, and market management sub-department, departments of customs of provinces and cities to decide and when the relevant case files are forwarded to them by those agencies together with a request for the chairman of the people’s committee to fine.

 

The President of People’s committees of provinces and cities have the power to impose a maximum fine of VND500,000,000 (about USD23,800) as to violating organizations and VND250,000,000 (about USD11,900) as to violating individuals.

 

2.7. Competition authority

 

Competition authority to inspect and deal with acts of unfair competition in the field of industrial property. General Director of Competition has the power to up to impose a maximum fine of VND200,000,000 (about USD9,520) as to violating organizations and VND100,000,000 (about USD4,760) as to violating individuals.

 

 

Note: Under current regulations, for the same act of an administrative violation, the monetary fine level applied to violating organizations shall be twice as to violating individuals. The maximum monetary fine level applied to violating organizations is VND500,000,000.

 

3.AVAILABLE MEASURES

 

– Civil Procedures

– Administrative Procedures

– Criminal Procedures

– Customs Control Measures on IPR

 

Acts of infringement:

 

– Acts of IP infringement that cause loss and damage to consumers or society;

– Producing, importing, transporting or trading IP counterfeits;

– Producing, importing, transporting or trading items bearing a mark or geographical indication identical or confusingly similar to a protected mark or geographical indication

 

3.1. Civil Procedures

 

People’s High Courts

People’s Courts at provincial level

People’s Courts at district level

 

3.1.1. Remedy

 

Compelling termination of the act of IPR infringement

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

 

3.1.2. Time: 1-2 years or even longer

 

3.2 Administrative Procedures

 

– Specialized Inspectorates

– (on Culture, Science andTechnology, Information)

– Market Management Authorities

– Customs Offices

– Economic Polices

– Competition Administration

– People’s Committees

 

3.2.1. Remedy

1. Principle sanctions

 

– Warning order; or

– Monetary fine (up to 500 million VND, about US$23,800)

 

1. Additional sanctions

– Confiscation and destruction of infringing goods;

– Suspension for a definite period of time of the infringer’s business license

3.2.2. Time: 3-5 months

 

 

 

3.3. Criminal Procedures

3.3.1. Remedy (for serious infringement over copyrights or related rights or trademarks or geographical indications)

 

– Monetary fine (the maximum fine for a company (legal entity) is up to 5 billion VND, about US$214,500), or;

 

– Suspension for a definite period of time of the infringer’s business license up to 2 year or prohibit of doing business in some fields, or;

 

– Imprisonment for a period of 6 months to 3 years;

 

3.3.2. Time: 1-2 years

 

3.4. Customs Control Measures

 

3.4.1. Remedy

    Collecting evidence of IPR infringement to take legal actions against IP infringers under administrative or civil or criminal procedure

3.4.2. Time

Customs registration for control and supervision of IPR in Vietnam with 2-year term

suspension of customs procedures: 10 or 20 working days

 

4.CURRENT SITUATION

 

– More than 90% IP infringement cases handled by administrative procedures

 

Reasons:

 

– Quickness: 3-5 months compared to 1-2 years for civil procedure

– No Preliminary Injunction applied by the court without the plaintiff’s request

– A heavy burden of proof for the plaintiff

– The judges rely much upon IP Authorities

– Small Compensation

– Difficulty in collecting evidence for their compensation claims

– Difficulty in enforcing the court’s verdict

 

 

 

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