An Overview Of IPR Enforcement In Vietnam

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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 civil procedures 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).

Courts

Like a majority of countries in the world, Vietnamese courts have jurisdiction over civil cases involving IPR disputes or IPR infringement under the civil procedures or over IPR infringement offenses 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 hearings.

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 purposes (e.g. those disputes involving use 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, the System of Vietnam’s courts includes:

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.

Inspectorates

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

Acts of infringement of related right and copyright

Shall be dealt 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) for violating organizations and VND50,000,000 (about USD2,380) for violating individuals.

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).

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.

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) for violating organizations and VND250,000,000 (about USD11,900) for violating individuals.

Customs authorities

The customs authority has the power to deal with IPR infringement acts relating to the import of goods. Upon a suspect of any imported goods 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 the Vietnam Customs Office has the power to impose a maximum fine of VND500,000,000 (about USD23,800) for violating organizations and VND250,000,000 (about USD11,900) for violating individuals. The Chief of the Anti-Smuggling Investigation Department under the Vietnam Customs Office has the power to impose a maximum fine of VND100,000,000 (about USD4,760) for violating organizations and VND50,000,000 (about USD2,380) for violating individuals.

Police

The police are responsible for investigating and prosecuting 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 the Ministry of Public Security has the power to impose a fine with a maximum value of VND500,000,000 (about USD23,800) for violating organizations and VND250,000,000 (about USD11,900) for violating individuals.

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, 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 has the power to impose a maximum fine of VND500,000,000 (about USD23,800) for violating organizations and VND250,000,000 (about USD11,900) for violating individuals.

Competition Authority

Competition authority to inspect and deal with acts of unfair competition in the field of industrial property. The General Director of Competition has the power to up to impose a maximum fine of VND200,000,000 (about USD9,520) for violating organizations and VND100,000,000 (about USD4,760) for 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 that to violating individuals. The maximum monetary fine level applied to violating organizations is VND500,000,000.

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

Civil Procedures

• People’s High Courts
• People’s Courts at the provincial level
• People’s Courts at the district level

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

Time

1-2 years or even longer

Administrative Procedures

• Specialized Inspectorates
• (on Culture, Science and Technology, and Information)
• Market Management Authorities
• Customs Offices
• Economic Policies
• Competition Administration
• People’s Committees

Remedy

Principle sanctions

• Warning order; or
• Monetary fine (up to 500 million VND, about US$23,800)

Additional sanctions

• Confiscation and destruction of infringing goods;
• Suspension for a definite period of time of the infringer’s business license

Time

3-5 months

Criminal Procedures

Remedy 

• 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 years or prohibition of doing business in some fields, or;
• Imprisonment for a period of 6 months to 3 years;

Time

1-2 years

Customs Control Measures

Remedy

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

Time

• Customs registration for control and supervision of IPR in Vietnam with a 2-year term
• Suspension of customs procedures: 10 or 20 working days

CURRENT SITUATION

• More than 90% of IP infringement cases are 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

ELITE LAW FIRM – 255 Hoang Van Thai Str., Thanh Xuan Dist., Hanoi, Vietnam

Tel: 0243 7373 051 | Hotline/Whatapps: 0988 746 527 | Email: info@lawfirmelite.com/vi