In case of necessity, the authorized state agency could apply temporary emergency measure.

Measures to control export and import goods relating to intellectual property and measures to prevent and ensure the administrative penalty in accordance with this Law and other related provisions of law.

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The competence to settle intellectual property infringements:

Within the scope of their duty and power , the court authorities , inspectors , Market Management , Customs , Police, People's Committees at all levels have the competence in handling infringements of intellectual property

The application of civil, criminal remedies in the jurisdiction of the Court. In case of necessity, the court may apply by law provisional emergency measures.

The application of administrative measures is under the jurisdiction of Inspecting judge , police, market management , Customs and People's Committee at all levels . In case of necessity, these agencies can apply preventive measures and ensure administrative sanction as provided by law.

The application of measure to control export and import goods relating to intellectual property is under jurisdiction of customs office.

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Settlement by civil measures

The court appply the following civil remedies for treating IPR infringement:

Forcing to terminate the infringement

Forcing to public apologize and correct.

Forcing to do civil obligation

Forced to recuperate

Forcing to destroy, distribute or use goods, raw materials, materials and means for non- commercial purpose, which are mainly used for production or trading in goods infringing intellectual property provide that do not affect the exploitation ability of intellectual property holder.

Proving evidences:

The plaintiffs and the defendants in the intellectual property infringement lawsuit have the right and the burden of proof as provided in Article 79 of the Civil Procedure Code and the below provisions:

Plaintiff proves himself the subject of intellectual property by one of the following evidences:

A copy of copyright registration certificate, related right registration certificate, protection title; the extract from National Register of copyright and related rights, the national register of industrial property, the National Register of protected plant varieties

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The necessary evidence to prove arisen foundation of copyright and related rights in the absence of copyright registration certificate, and related rights; necessary evidence to prove the right to trade secrets , trade name , famous brand.

A copy of intellectual property object usage contract in cases the right to use is transferred under contract

The plaintiff must provide evidences of intellectual property infringement or unfair competitions.

In case of patent infringement is a product manufacturing process, the defendant must prove his products produced in a process which is different from the protected process in the following cases:

Product manufactured in the protected process is new product
Product manufactured in the protected process is not new but the patent owner thinks that product produced by the defendant is under a protected process , and despite the use of appropriate measures but it still can not be identified the process used by the defendant.

In case a party in a intellectual property infringement proved the appropriate evidence to substantiate his claim controlled by the other party, so that it is inaccessible , he may still require the Court to force evidence control party to show that evidence.

In case of a claim for compensation, the plaintiff must prove the actual damage and stating the basis for determining level of compensation under the provision of Article 205 of Intellectual Property Law.

Damage determination

Principles for determining damages caused by intellectual property infringement

Damage caused by intellectual property infringements includes:

Material damage includes property and the reduction income, profit , loss of business opportunities , reasonable cost to prevent, overcome the demage.

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Mental damages including loss of honor , dignity , prestige , reputation and other spiritual losses cause author of literature , artistic or scientific works ; performers; inventors, industrial designs , layout designs , plant varieties.

The degree of damage is determined on the basis of the actual losses that intellectual property holder was suffered from infringements.

 
Bases of damage compensation level
In case the plaintiff proves intellectual property infringement caused his material damage, he can request the court to decide level of compensation on one of the following bases:

Total material damages in money plus a profit which the defendant obtained by performing intellectual property rights infringement, if the reduced profit of plaintiff is not included in total material damages.

Price for transferring the right to use intellectual property object supposing defendant is transferred the right by plaintiff according to contract of using intellectual property object in field corresponding to the performed infringement.

In case no level of compensation for material damage determined under the specified grounds in points a and b of this paragraph , the level of compensation for material damage defined by the courts depending on the level damage , but not exceeding five hundred million..

In cases the plaintiff proves the intellectual property infringement caused his spiritual damage, he can request the court to decide the level of compensation from five million to fifty million, depending on the extent of damage

In addition to compensation for damage specified in above clauses 1 and 2 , intellectual property right holders may request the court to force organizations and individuals infringing intellectual property right have to pay reasonable fee for attorney.

Temporary emergency measures

Right to request the court to apply temporary emergency measures:

When petitioning or after the petition, holders of intellectual property rights may request the court to apply temporary emergency measures in the following cases:

Being at risk of irreparable damage to the holder of intellectual property

Goods suspected of infringing intellectual property rights or evidence relating to infringements of intellectual property rights are at risk of being dispersed or destroyed if they are not protected in time

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Court decides to apply temporary emergency measures upon the request of intellectual property right holders as specified above before hearing from defendant.

Temporary emergency measures

The following temporary emergency measures are applied to goods suspected of infringing intellectual property rights , raw materials , materials , means of production and trading goods

Seizure

Distraint

Seal, forbidden to change the status; prohibit to move

Banning ownership transfer

Other temporary emergency measures are applied under the provisions of the Civil Procedure Code

Applicants’ oblications of temporary emergency measures

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The applicant obliges to prove the right under the provision of Clause 1 of Article 206 of the IP Law in documents and evidence referred in paragraph 2 of Article 203 of the Law on Intellectual Property.

The applicant obliges to compensate for applied person in case that person does not infringe intellectual property rights. To ensure the implementation of this obligation, the applicant requesting temporary urgent measures must deposit a sum calculated by one of the followings:

The Amount equal to 20 % value of goods applied temporary emergency measures, or at least twenty million if it is unable to determine the value of such goods

Proof of bank guarantee or other credit organizations

Cancellation adopting temporary emergency measures

Court decides to cancel the temporary emergency measures applied in cases specified in Clause 1 of Article 122 of the Civil Procedure Code and in cases the applied person prove the application of temporary emergency measures Unjustifiable.

In case of canceling the temporary emergency measures , the Court must consider to refund deposit to the requester to apply temporary emergency measures in provision of Clause 2, Article 208 of the Law on Intellectual Property . In case the request for application of temporary emergency measures is unjustifiable and causes damage to applied person, the Court forces the applicant to compensate for damage.

Competence and procedures to apply temporary emergency measures

Competence and procedures to apply temporary emergency measures comply with the provisions of Chapter VIII, Part One of the Civil Procedure Code.

Dealing with administrative measures

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The following intellectual property right infringements will be administratively sanctioned:

Performing infringement of intellectual property right causes damage to consumers or society

Do not stop infringement of intellectual property rights in spite of noticed by written request.

Manufacturing, importing, transporting and selling counterfeit goods on intellectual property as provided for in Article 213 of this Law or assigning others to commit such acts.

Manufacturing, importing, transporting, selling branded materials or geographical indication identical or similar making confusion with protected trademarks, geographical indications or assigning others to commit such acts.

Organization and individual act unfair competition on intellectual property shall be administratively sanctioned in accordance with the competition law .

Types of administrative sanctions and remedial measures:

Organizations and individuals that infringe the intellectual property rights defined in Clause 1 of Article 211 of the IP Law will be forced to terminate the infringement and applied one of the following sanctions:

Warning

Fining

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Depending on the nature and seriousness of the infringement, organizations and individuals that infringe intellectual property rights can be applied one or following additional sanctions :

Confiscating the counterfeit goods of intellectual property , raw materials , materials and means mainly used for producing and trading counterfeit goods of intellectual property 

Terminable Suspension in business activity in the area occurred violation.

In addition to the above mentioned sanctions, organizations and individuals infringing intellectual property rights can be applied one or following remedial measures:

To be Forced to destroy or distribute or put into use for non -commercial purpose the counterfeit goods and intellectual property , raw materials , materials and means mainly used for producing or trading in counterfeit goods of intellectual property provided that do not affect the ability of exploiting the intellectual property of the owner.

To be Forced to take out of Vietnam's territory with transit goods infringing intellectual property rights or to re -export with the , imported counterfeit goods of intellectual property , vehicles , raw materials materials used to produce and trade counterfeit goods on intellectual property after removing the infringing elements on goods

The above defined level of fine shall be at least equal to the value of detected infringing goods and do not exceed five times.

Measures to prevent and ensure the administrative sanctions.

In the following cases, organizations and individuals may request the authorized agency to apply the preventive measures to ensure administrative sanctions

Acts of intellectual property infringement are likely to cause serious harm to consumers or society

Exhibit is in risk of being dispersed and hidden or individual, organization expresses the responsibility evasion.

In order to ensure the execution of administrative sanction decisions for violations

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Preventive measures and ensure administrative sanction are applicable under administrative procedure for intellectual property infringement including:

Temporary detention

Detention of goods, exhibits and violation means

Body searching

Checking vehicles and objects; hiding goods places, exhibits and violation means of intellectual property

Other measures for administrative prevention prescribed by law on handling of administrative violations

Controlling the Exports and imports

Measures to control exports and imports relating to intellectual property include:

Suspension in custom procedure for goods suspected of intellectual property infringement (the measure carried out at the request of intellectual property owner in order to gather information and evidence on shipment for intellectual property owner to perform the right to request handling infringement and applying the temporary emergency measures or preventive measures and ensure administrative sanctions.

Inspecting and monitoring to detect infringing goods of intellectual property( the measure carried out at the request of intellectual property owner in order to gather information to perform the right to request the application of suspending customs procedures.

During the implementation of above measures if counterfeit goods on intellectual property detected under the provisions of Article 213 of Intellectual Property Law customs agency has the right and responsibility to apply administrative measures to handle as defined in Article 214 and Article 215 of Intellectual Property Law.

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Obligations of the applicant for measure in controlling exports and imports relating to intellectual property

The applicant for measure in controlling exports and imports relating to intellectual property has following obligations:

Proving yourself to be the owner of intellectual property rights in documents and evidences referred to in paragraph 2 of Article 203 of Intellectual Property Law.

Providing sufficient information to identify goods suspected of intellectual property infringing or to detect infringing goods on intellectual property

Applying for the customs office, paying fee, expense in accordance with the law

Compensating for damages and paying arising costs for the person to be applied control measures in case goods is not intellectual property infringed.

To ensure the performance of obligations prescribed in Clause 1 of this Article, the applicant for suspension of customs procedures must deposit by one of the following forms:

The Amount equal to 20 % value of goods to be applied suspension of customs procedures or twenty million minimum if goods value cannot be defined

Proof of bank guarantee or other credit organizations

The procedure of applying suspension of clearing customs

When the applicant of suspension in customs procedures has fulfilled all the obligations stipulated in Article 217 of Intellectual Property Law, the customs authorities decides totemporarily stop clearing customs for the shipment.

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Term of suspension of customs procedures is ten working days from the decision date. In case the applicant pauses with good reason , this term may be extended , but do not exceed twenty working days provided that the applicant for suspension pays additional guarantee stipulated in Clause 2 of Article 217 of the Intellectual Property Law.

When the temporary suspension in customs procedures expires( as defined above ), the applicant do not commence a civil action and the customs authorities do not assume jurisdiction under process in administrative sanction to the exporter and importer , customs authorities have responsibility of:

Continuously doing customs clearance

Forcing the applicant for suspension of customs clearance to compensate the shipment owner for entire damage caused by that improper suspension and also pay the storage fee, maintenance cost and other extra costs for related customs authorities and agencies, organizations and individuals under the provisions of customs legislation.

Returning the remaining guarantee deposit for the applicant for the suspension of customs clearance after completing the compensation and payment of storage fee, maintenance cost and other extra costs for related customs authorities, agencies, organizations and individuals under the provisions of customs legislation.

Translated from: Xử vi phạm, tranh chấp SHTT

MINH KHUE LAW FIRM

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