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(PART 2) ALL-INCLUSIVE UNDERSTANDING OF THE IP LAWS AND PRACTICES OF VIETNAM INCLUDING THREE TYPES OF PATENTS, COPYRIGHT, AND PLANT VARIETIES CONTRIBUTED BY BROSS & PARTNERS ARE LIVE IN THE FORM OF THE COMPARATIVE GUIDE BY THE LEGAL 500
(Ngày đăng: 2018-07-27)

23.How does the court acquire any necessary information (fact or technical) and in what circumstances does it do so? In particular a) Is there a technical judge, a judge with technical experience, a court appointed expert, an expert agreed by the parties, and/or parties’ expert witness evidence? b) What mechanisms are available for compelling the obtaining and protecting of evidence? Is disclosure or discovery available?

  1. Is there a technical judge, a judge with technical experience, a court appointed expert, an expert agreed by the parties, and/or parties' expert witness evidence?

There is neither technical judge nor judge with technical experience available in IP lawsuits in Vietnam because in absence of IP courts up to now and almost only 2% or less of IP disputes are brought to court annually. However, please bear in mind that expert opinions if they are in form of an assessment conclusion made by any accredited organization in charge of appraisal can be admissible to a court of law because assessment conclusion is one of the 10 sources of admissible evidences provided in Section 94 Civil Proceedings Code of 2015. Although, the provision of expert opinion or expert testimony or expert advice that was legalized as a competitive service market under the IP Law (Section 201), there have been only one quasi- governmental organization in charge of IPR infringement appraisal being the Vietnam Intellectual Property Research Institute (VIPRI) up to now. And this makes the development of expert opinion activities too sluggish and makes it difficult for litigants and courts to decide or hear on the merits as well.

 

  1. What mechanisms are available for compelling the obtaining and protecting of evidence? Is disclosure or discovery available?

Basically, there are also mechanisms for compelling the obtaining, handing over and protection of protection stipulated in Section 106, 110 of Civil Proceedings Code of 2015. In principle, all evidences and their discovery are publicly and equally disclosed except for those regarding State secrets, national fine customs, professional secrets, trade secrets or private confidential information at the request of concerned litigants

 

 

24.How is information and evidence submitted to the court scrutinised? For example, is cross-examination available and if so, how frequently is it employed in practice?

According to Section 108 of the 2015 Civil Proceedings Code, the court is liable for scrutinizing evidences objectively, comprehensively, fully and correctly, wherein each of the evidences, connection amongst them, the legality, relevance and proof value.

Upon the request of a concerned party or where the testimony of concerned parties or witnesses are considered inconsistent, the judge shall arrange cross-examination between various concerned parties or between a concerned party and a witness or between various witnesses. And the cross-examination shall be included in a record which shall be signed by participants in the cross-examination.

 

 

25.What defences to infringement are available?

Defense to IP infringement: invalidity, exhaustion (first sale doctrine), prior commercial use, using in service of personal needs or non-commercial purpose, or for purposes of evaluation, analysis, research, teaching, testing, trial production or information collection for carrying out procedures of application for licenses for production, importation or circulation of products, using only for the purpose of maintaining the operation of foreign means of transport in transit or temporarily staying in the territory of Vietnam, using patented invention subject to non-voluntary licensing, fair use (copyright and related rights).

 

 

26.Who can challenge each of the intellectual property rights described above?

Fundamentally any third party (it is not necessary to prove that he/she to be an interested party or aggrieved party) has the right to request State agencies to cancel registered IP rights including plant variety rights or copyright/related rights if he/she found that such protection is mis-granted or approved wrongly.

 

 

27.When may a challenge to these intellectual property rights be made (e.g. during any registration process or at any time during the subsistence of the right)?

Any third party is entitled to challenge applications for registration of IP rights (patents, designs, trademarks, plant variety)  as soon as they are published for  opposition purpose until prior to the point of time they mature into registration.

Upon registration, IP rights may be totally terminated/invalidated (eg. no annuity/renewal fee are made) or partially or totally cancelled (eg. the applicant for registration had neither entitlement to register nor had been assigned the right to register those IP rights).

 

 

28.Briefly, what is the forum and the procedure for challenging each of these intellectual property rights and what are the grounds for a finding of invalidity of each of these intellectual property rights?

Registered patents, trademarks, GIs subject to possible cancellation or invalidation actions must be made initially before the NOIP. For certificates of copyright, related rights, such procedures shall be made before the Copyright Office of Vietnam (COV) whilst certificate of protection of plant variety may be invalidated or cancelled before the PVP Vietnam.

 

 

29.Are there any other methods to remove or limit the effect of any of the intellectual property rights described above, for example, declaratory relief or licences of right?

No declaratory relief is available in Vietnam. Generally speaking, any person/organization who is exploiting or using goods/services suspected of infringement should seek expert opinion from the VIPRI or get legal advice including FTO opinion or proactively contact and negotiate right holders for a license of right then it is possible to remove or limit the effect of being handled due to infringement.

 

30.What remedies (both interim and final) are available for infringement of each of the intellectual property rights described above?

          The goods infringing IP rights or raw materials and materials, or facilities of production

 

or trading of such goods may be subject to one of the following interim injunctions: (a) retention; (b) seizure; (c) sealing; prohibiting any alteration of the original state; prohibiting any movement; (d) prohibiting transfer of ownership. Other provisional urgent measures may be applied in accordance with the Civil Procedure Code of 2015.

 

As a result of a court’s award, five permanent injunctions as below may be decided to deal with organizations and individuals who have committed acts of infringement of copyright, related right:

 

  1. Compulsory termination of the infringing acts.

 

  1. Compulsory public apology and rectification.

 

  1. Compulsory performance of civil obligations.

 

  1. Compulsory payment of damages for loss.

 

  1. Compulsory destruction, distribution or use for non-commercial purposes of goods, raw materials and materials, and facilities used principally for the production or trading of goods which infringed intellectual property rights, provided that such destruction, distribution or use will not affect the exploitation of rights by intellectual property right holders.

 

 

 

31.What are the costs of enforcement proceedings and is any kind of costs recovery available for successful parties? Is there a procedural mechanism enabling or requiring security   for costs?

It is difficult to estimate the cost of enforcement because it depends on the type of IP rights involved, the degree of difficulty and the locality of infringement or of court.

Regarding an estimate of cost, please see question 18 above. No provisions on security for cost is available.

 

______________________________________________________________

Bross & Partners, a Vietnamese registered Patent, Design, Trademark and Copyright agent, constantly ranked by Managing Intellectual Property, World Trademark Review, The Legal 500 Asia Pacific, AsiaLaw Profiles and Asian Legal Business. We are providing clients all over the world the reliable, affordable contentious and non-contentious IP services including IP enforcement, anti-counterfeiting, litigation and domain name recovery before courts and arbitrations. For further discussion, please get in touch with us via vinh@bross.vn or contact@bross.vn or saigon@bross.vn

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