Intellectual property disputes in Vietnam
Foreign investor could handle
intellectual property disputes in Vietnam through negotiation
and mediation, arbitration or litigation depending on various factors.
Intellectual property rights is the rights of
organizations, individuals to the intellectual property, including copyrights
and related rights, industrial property rights, including trademark, patent,
and industrial design and rights to the plant
varieties. Under Vietnam intellectual property law, owners are
granted certain exclusive right to the intangible assets. Intellectual property
infringement occurs whenever the rights of any type of intellectual property
are violated. The intellectual property disputes arise directly from all types
of intellectual property as mentioned or commercial transactions and extraction
process regarding to types of intellectual property such as license agreement,
intellectual property transferring agreement. Disputes could be settled
by different methods, depending on the subjective wills of parties. The parties
have right to choose any methods that they deem ideal to protect their
interests.
Nowadays, international practice allows parties to choose one of
two ways to settle their disputes, including dispute settlement mechanism
without litigation (negotiation and mediation) and dispute settlement mechanism
with litigation (civil litigation and arbitration). Typically, when
disputes occur, parties often choose simplest methods before using other ones.
The simplest methods are negotiation and mediation.
Negotiation is a procedure whereby parties work together and
reach the solution by expressing their own point of views to the dispute. This
method is used for small, non-complex disputes so that parties could be easy to
reach a consensus about dispute settlement. Though this method is simple, it is
hard for parties to shake their hands together and come to consensus. It is
simply because each party always need advantages come to them. Besides, for
example, if parties reach the consensus in settling dispute, there is no
mechanism to ensure enforcement of dispute solution.
Mediation, different from negotiation, the participation of
third party is requested by parties. However, the same thing between
negotiation and mediation is that parties are sole those holding right to
decide what solutions are applied to settle dispute. Despite the third party
only act as intermediary, the mission of third party is really important. The
third party helps to connect dispute parties and avoid stronger conflict
between them. With experience and skills, they make opportunity for parties
exchange information, help them express their standpoints, promote flexible
solutions and suggest solution suitable for both of them. Of course, a methods
which the third party proposes is solely recognized as a reference. In
mediation, the information security is highly ensured. Parties are not
forced to reveal any information that they want to keep as a secret. Besides,
mediation helps parties minimize fees due to simple procedure. Moreover,
mediation allows opportunity for parties to work together and reach settlement
and typically, parties still keep their business relationship. Last but not
least, parties can mediate in any period of dispute settling process. Mediation
can be chosen as the first step to come to dispute settling process after each
side’s endeavor.
After no result of both side’s endeavor,
parties can choose one of the dispute settlement mechanism with litigation to
settle dispute. Generally, the proceeding of civil litigation is more complex
than the arbitration proceeding. In case one side needs a decision from court
so as to end infringement, civil litigation is top priority. In the
remaining case, arbitration is a choice with advantages. Arbitration is
solely conducted when parties reach consensus that arbitration is a form of
dispute resolution. Arbitration agreement must be a term of the core contract
or an independent agreement.
Firstly, cost for arbitration is typically cheaper than
traditional litigation. Attorney’s fees and expense are minimized in
arbitration because arbitration is generally concluded in far less time than
cases at court. Secondly, length of dispute settling time in arbitration
is shorter than litigation in court because of simple procedure. Court cases
generally require more counsel time and, thus, more expenses for preparation
and trial than is needed in arbitration. Thirdly, settling dispute by
arbitration is effective because of its flexibility. In arbitration, parties
have right to choose form of arbitration (Ad hoc or permanent). Moreover,
parties can schedule hearings and deadlines to meet their objectives and
convenience. This flexibility allows parties save money, time and partially
promote dispute settling process to be faster. Fourthly, arbitration is a
secret proceeding. The decision is public, but the trial is close. This feature
of arbitration is a big advantage for dispute involving trade secret or patent. Lastly,
arbitration council’s decision is final. It means that contrary to decision of
court, most of arbitration council’s decisions cannot be appealed. Chance for
canceling arbitration’s decisions is not much, primarily because of basic
mistakes about procedures.
Dispute settling method in arbitration is suitable for most of
intellectual property disputes because this method meets the featured
requirements of intellectual property dispute (multinational, information
security, complexity). Mediation and arbitration can combine together in
settling dispute. Firstly, dispute is settled by mediation. Then, in case if
parties do not reach settlement in mediation, dispute will be settled by
arbitration council. The advantage of this combination is that it promotes
parties propose goodwill engagement in mediation and after that, will create
more advantages for dispute resolution in arbitration.
To summarize, when facing a dispute relating to intellectual property right,
foreign investor can handle out dispute through judging exactly about scale of
dispute, financial capability, dispute settling time, level of information
security because intellectual property is worthy assets that can impact
development as well as existence of enterprises.
With highly professional staff and great
experience in IP aspect in Vietnam, ANT Lawyers would like to support you in
extending your intellectual property rights in
Vietnam.
ANT Lawyers - Arbitration law firm in Vietnam our trial lawyers with accreditation in
national and international arbitration practice could help providing legal
advice in disputed matters, and guide the clients through out the process. The
lawyers could also advise the clients on various matters from choice of
arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration,
place of arbitration, enforcement of arbitral award.
